Congratulations! You have just obtained an adjudication certificate. What comes next if the respondent refuses to pay the adjudicated amount? Knowing how to enforce SOPA debts is essential for construction industry participants who want to exercise their right to receive progress payment. Two potentially powerful options available to claimants are…
7 December, 2023
You Have One Shot
Serving a Payment Claim Post-Termination Introduction Section 13(1)(c) of the Building and Construction Industry (Security of Payment) Act 1999 (SOPA) allows contractors to serve one final payment claim after termination of a construction contract. In Taylor Construction Group Pty Ltd v Adcon Structural Group Pty Ltd NSWSC 723 (Taylor v…
1 December, 2023
Be Wary of Your Payment Schedules Under the SOP Act
Turnkey Innovative Engineering Pty Ltd v Witron Australia Pty Ltd NSWSC 981 In the recent Supreme Court case of Turnkey Innovative Engineering Pty Ltd v Witron Australia Pty Ltd NSWSC 981, the Court emphasised how a respondent’s payment schedule must provide the amount and any reasons for withholding. The respondent’s…
1 December, 2023
Using DOCAS To Preserve SOPA Claims In Administrations?
Commercial Context Construction companies are often thinly capitalised and do not hold significant real property or other assets. Often their most significant (and sometimes their only) assets are unpaid progress claims arising from construction work undertaken prior to entering into external administration. Progress claims however can be difficult to recover.…
22 November, 2023
Jurisdictional Errors of an Adjudicator
Miller v LMG Building Pty Ltd NSWSC 995 Introduction The case of Miller v LMG Building Pty Ltd NSWSC 995 is a reminder of the obligations of an adjudicator when making a determination under the Building and Construction Industry Security of Payment Act 1999 (NSW) (Act). Relevant facts On 30…
25 August, 2023
Setting Aside An Adjudicator’s Determination Under The SOP Act
Ceerose Pty Ltd v A-Civil Aust Pty Ltd (No 2) NSWSC 401 Under section 32A of the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOP Act), the Supreme Court has a discretionary power to set aside the whole or part of an adjudicators determination that has been…
14 December, 2022
‘Pay When Paid’ Clauses Do Not Work – Maxcon Constructions Pty Ltd v Vadasz [2018] HCA 5
What exactly is a ‘pay when paid’ provision? A ‘pay when paid’ provision is one where the release of retention under a subcontract is dependent on the operation of a clause of the head contract. Under s 12 of the Building and Construction Industry Security of Payment Act 1999…
24 March, 2022
Case Note: Equa Building Services Pty Ltd v A&H Floors 2 Doors Australia Pty Ltd [2022] NSWSC 152
The recent Supreme Court decision in Equa Building Services Pty Ltd v A&H Floors 2 Doors Australia Pty Ltd NSWSC 152 (Equa) has re-emphasised the importance of strict compliance with the provisions of the Building and Construction Industry Security of Payment Act 1999 (NSW) (Act). In particular: contractors and subcontractors…
11 March, 2022
The addition of absolute discretion in EOT clauses – No notices – no extensions of time
The New South Wales Supreme Court’s decision in Growthbuilt Pty Ltd v Modern Touch Marble & Granite Pty Ltd NSWSC 290 (Growthbuilt) has extremely significant implications regarding extension of time (EOT) clauses. Contractors and legal practitioners must take note of this momentous decision. Implications for contractors The key takeaway from…
1 March, 2022
Identifying construction work in payment claims – correctly identify, or pay the price
To be able to access the adjudication process under the various Security of Payment schemes in Australia, claimants are required by legislation to “identify” the construction works in a payment claim for which they seek payment. The word “identify” does not arise frequently in security of payment legislation, but where…