Security of Payments Act: Resources

Security of Payment legislation was introduced throughout Australia as a way for building contractors to receive due payments as per their contract, without getting reeled into a tedious litigation or arbitration process.

The goal of the Act, which is to cost-effectively solve payment disputes by fast tracking them to court judgement, is 94% successful in NSW for claimants.

But the process certainly can be confusing. For starters, since Security of Payment legislation is state-based, the process of making a payment claim varies depending on where the work took place.

To help ease some of the uncertainty around making Security of Payment claims, we put together a brief overview and list of resources for each State and Territory's relevant Security of Payment Act. 

Disclaimer – Felix Group is not a legal entity. This content does not constitute legal advice or recommendations and should not be relied upon as such. Appropriate legal advice should be obtained in actual situations.

Table of contents

• New South Wales
• Queensland
• Victoria
• Australian Capital Territory
• Western Australia
• Tasmania
• Northern Territory
• South Australia

New South Wales 

Overview:

Act:
Building and Construction Industry Security of Payment Act 1999

Regulation:
Building and Construction Industry Security of Payment Regulation 2008

Responsible Govt. Department: 
NSW Fair Trading

Time Limit for making a claim under the Act:
within 12 months of the reference date*

* = The reference date is a date both parties have previously agreed upon. It is the date on which a Payment Claim can be lodged for the preceding months work. If there is no date agreed, pursuant to the Security of Payments Act NSW it defaults to the last day of the month. You can only make one claim (serve one invoice) per Reference date.

A flow chart for Security of Payment claims in New South Wales. (Image Source)  

Resources:

NSW Fair Trading Contact Number – 13 32 20

NSW Fair Trading Security of Payment Website

Australian Building and Construction Commission (ABCC) Security of Payments Page

ABCC Security of Payment Reporting Form for Claimant - only applicable if you are owed money by a code covered entity.

(A code covered entity is a building contractor or building industry participant that has submitted an expression of interest (EOI) or tender (howsoever described) for Commonwealth funded building work on or after 2 December 2016, and therefore become subject to the Building Code 2016.)

More info:

According to NSW Fair Trading, to make a payment claim you must:

• make a written claim, stating the amount due and describing the construction work, related goods or services which you are claiming
• serve the claim to the respondent at the time specified in the contract, or on/after each reference date in person, by post or fax (or in any other way outlined in the contract)
• record the date when the respondent receives the claim
• if you are a subcontractor and the contract is connected with a residential construction contract, include a statement indicating that: "This is a payment claim made under the Building and Construction Industry Security of Payment Act 1999 NSW".
  
  The claim may also include attachments, such as:

• statements detailing the extent of the work completed
• completion certificates
• delivery dockets
• photographs
• other applicable contract document requirements.

Queensland 

Overview:

Act:
Building and Construction Industry Payments Act 2004

Regulation:
Building and Construction Industry Payments Regulation 2004

Responsible Govt. Department: 
Queensland Building and Construction Commission (QBCC)

Time Limit for making a claim under the Act:
within 6 months of the reference date

Resources:

QBCC Contact Number: 
13 9333

QBCC Payment Claim Form Template

Australian Building and Construction Commission (ABCC) Security of Payments Page

ABCC Security of Payment Reporting Form for Claimant
(only applicable if you are owed money by a code covered entity.)

(A code covered entity is a building contractor or building industry participant that has submitted an expression of interest (EOI) or tender (howsoever described) for Commonwealth funded building work on or after 2 December 2016, and therefore become subject to the Building Code 2016.)

More info:

• According to the QBCC, before submitting your payment claim, make sure you:

  • follow the payment terms and requirements set out in your contract
  • only issue one payment claim for each reference date (a payment claim can include a previously claimed amount which is still outstanding)
  • send the payment claim on or after a reference date
  • send the payment claim within any relevant maximum timeframes set out in the BIF Act.

Victoria 

Overview:

Act:
Building and Construction Industry Security of Payment Act 2002

Regulation:
Building and Construction Industry Security of Payment Regulations 2013

Responsible Govt. Department: 
Victorian Building Authority

Time Limit for making a claim under the Act:
within 3 months of the reference date

Resources:

Victorian Building Authority Contact Number: 
1300 815 127

Victorian Building Authority Payment Claim Sample Form

Australian Building and Construction Commission (ABCC) Security of Payments Page

ABCC Security of Payment Reporting Form for Claimant
(only applicable if you are owed money by a code covered entity.)

(A code covered entity is a building contractor or building industry participant that has submitted an expression of interest (EOI) or tender (howsoever described) for Commonwealth funded building work on or after 2 December 2016, and therefore become subject to the Building Code 2016.)

A flow chart for whether or not you can make a Security of Payment claim in Victoria. (Image Source)  

More info:

A reference date is the date on which a claim may be made. If the contract does not specify reference dates, the SOP Act provides for them as follows:

• Progress payments – 20 business days after the work was first carried out or goods and services were first provided. Subsequent payment claims may then be made every 20 business days until the job is completed.
• Single or one-off payments – The day after the work was last carried out or the goods or services were last supplied under the contract.
• Final payments – The day after the end of any period under the contract for rectifying defects or omissions or the day after the final certificate is issued. If neither of these applies, the reference date is the day after the work was last carried out or the goods or services were last supplied under the contract.

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Australian Capital Territory 

Overview:

Act:
Building and Construction Industry (Security of Payment) Act 2009

Responsible Govt. Department:
Environment and Planning Directorate

Time Limit for making a claim under the Act:
within 12 months of the reference date

Resources:

Environmental and Planning Directorate Contact Number: 
13 22 81

Security of Payments ACT Overview

Australian Building and Construction Commission (ABCC) Security of Payments Page

ABCC Security of Payment Reporting Form for Claimant
(only applicable if you are owed money by a code covered entity.)

(A code covered entity is a building contractor or building industry participant that has submitted an expression of interest (EOI) or tender (howsoever described) for Commonwealth funded building work on or after 2 December 2016, and therefore become subject to the Building Code 2016.)

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Western Australia 

Overview:

Act:
Construction Contracts Act 2004

Regulation:
Construction Contracts Regulations

Responsible Govt. Department: 
WA Building Commission

Resources:

WA Building Commission Contact Number: 
1300 489 099

Construction Contracts Act Overview

Payment Claim Flowchart

Making a payment claim Fact Sheet

Australian Building and Construction Commission (ABCC) Security of Payments Page

ABCC Security of Payment Reporting Form for Claimant
(only applicable if you are owed money by a code covered entity.)

(A code covered entity is a building contractor or building industry participant that has submitted an expression of interest (EOI) or tender (howsoever described) for Commonwealth funded building work on or after 2 December 2016, and therefore become subject to the Building Code 2016.)

A flow chart showing how Security of Payment claims work in WA. (Image Source)  

More info:

• The Security of Payments Act operates differently in the West Australia (WA) to the eastern states of Australia so special caution is suggested.

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Tasmania

Overview:

Act:
Building and Construction Industry Security of Payment Act 2009

Responsible Govt. Department:
Building Standards and Occupational Licensing

Time Limit for making a claim under the Act: 
Within 12 months of the reference date

Resources:

Building Standards and Occupational Licensing Contact Number:
1300 654 499

Resolving a business dispute overview for Tasmania

Making a Payment Claim

ABCC Security of Payment Reporting Form for Claimant
(only applicable if you are owed money by a code covered entity.)

(A code covered entity is a building contractor or building industry participant that has submitted an expression of interest (EOI) or tender (howsoever described) for Commonwealth funded building work on or after 2 December 2016, and therefore become subject to the Building Code 2016.)

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Northern Territory 

Overview:

Act:
Construction Contracts (Security of Payments) Act 2004

Regulation:
Construction Contracts (Security of Payments) Regulations 2004

Responsible Govt. Department: 
Building Advisory Services

Resources:

Building Advisory Services Contact Number: 
1300 301 059

Security of Payment NT Overview

Australian Building and Construction Commission (ABCC) Security of Payments Page

ABCC Security of Payment Reporting Form for Claimant
(only applicable if you are owed money by a code covered entity.)

(A code covered entity is a building contractor or building industry participant that has submitted an expression of interest (EOI) or tender (howsoever described) for Commonwealth funded building work on or after 2 December 2016, and therefore become subject to the Building Code 2016.)

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South Australia  

Overview:

Act:
Building and Construction Industry Security of Payment Act 2009

Regulation:
Building and Construction Industry Security of Payment Regulations 2

Responsible Govt. Department:
Office of the Small Business Commissioner

Time Limit for making a claim under the Act:
within 6 months of the reference date

Resources:

Environmental and Planning Directorate Contact Number: 
1800 072 722

SA Security of Payments Overview

Sample Payment Claim

SA Adjudication Results

Australian Building and Construction Commission (ABCC) Security of Payments Page

ABCC Security of Payment Reporting Form for Claimant
(only applicable if you are owed money by a code covered entity.)

(A code covered entity is a building contractor or building industry participant that has submitted an expression of interest (EOI) or tender (howsoever described) for Commonwealth funded building work on or after 2 December 2016, and therefore become subject to the Building Code 2016.)

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