Security of Payment Lawyers — All States & Territories
Security of Payment Lawyers — Unpaid Progress Claim? Enforce It. Quickly.
The Security of Payment legislation in every Australian state gives contractors and subcontractors the right to recover unpaid progress claims through a fast statutory adjudication process — without going to court. A building lawyer prepares payment claims and payment schedules, manages the adjudication process, and enforces adjudication determinations as judgments where the paying party does not pay.
⚠ SOP adjudication applications must be lodged within 10 business days of the due date for payment (NSW) or within 5 business days after the last day the respondent could have provided a payment schedule. Missing the deadline means losing the right to adjudication for that payment claim. Seek urgent SOP advice now.
Security of Payment Law
The SOP adjudication process — step by step
The Building and Construction Industry Security of Payment Act 1999 (NSW) — and equivalent legislation in all other states and territories — creates a statutory right to serve a payment claim for construction work done or related goods and services supplied under a construction contract. The process operates as follows:
Step 1 — Payment claim: The claimant serves a payment claim on the respondent. The payment claim must identify the construction work to which it relates, the claimed amount, and include a statement that it is made under the Act. In NSW, the payment claim cannot be made more than 12 months after the work to which it relates was last carried out (s 13(4) SOPA 1999).
Step 2 — Payment schedule: The respondent must serve a payment schedule within 10 business days of receiving the payment claim (or a shorter period if the contract provides). The payment schedule must identify the payment claim to which it responds, indicate the scheduled payment amount, and set out the reasons for any difference between the claimed amount and the scheduled amount. Failing to serve a payment schedule on time makes the full claimed amount due and payable — and the claimant can recover it as a debt without adjudication.
Step 3 — Adjudication application: If the respondent serves a payment schedule that reduces or disputes the claimed amount, the claimant can apply for adjudication within 10 business days of receiving the payment schedule (NSW). The adjudication application must set out the submissions in support of the claimed amount and annex relevant documents.
Step 4 — Adjudication response: The respondent has 5 business days (or 2 business days after receiving the adjudication application, whichever is later) to lodge an adjudication response. The response can only address the reasons set out in the payment schedule — the respondent cannot raise new grounds in the adjudication response that were not in the payment schedule.
Step 5 — Determination: The adjudicator determines the adjudicated amount within 10 business days of accepting the adjudication application. The adjudicated amount must be paid within 5 business days. If not paid, the claimant can file the determination as a judgment in the Supreme Court and levy execution immediately.
SOP Matters
Security of Payment matters we handle
Payment claim preparation
Preparing a compliant payment claim — ensuring it satisfies the formal requirements of the Act and is served correctly — including identification of work, claimed amount, and the SOP reference statement.
Payment schedule response
Advising respondents on preparing a payment schedule — identifying each item of the claimed amount that is disputed, the reasons for the dispute, and any set-off or back-charge claims.
Adjudication applications
Preparing an adjudication application — including all supporting documentation, submissions on the claimed amount, and responses to the reasons given in the payment schedule for withholding payment.
Adjudication responses
Advising respondents on preparing an adjudication response — limited to the grounds raised in the payment schedule — and on the prospects of challenging the claimant's adjudication application.
Enforcement of determinations
Enforcing an adjudication determination as a judgment — filing the determination in the Supreme Court under s 25 SOPA 1999 and taking enforcement action (garnishee, writ of levy, charging order) where the respondent fails to pay.
Clawback of previously paid amounts
After a final resolution of the underlying contract dispute, the respondent may be able to recover amounts paid as a result of an adjudication determination that is later found to have been incorrectly determined — through a final determination under the contract.
Frequently Asked Questions
Security of Payment questions answered
Does the Security of Payment Act apply to residential building work in NSW?
Yes — but with important limitations. The SOPA applies to residential building work where the claimant is a contractor claiming against another contractor or a developer owner. A homeowner who is a natural person residing in the property cannot be a respondent to a payment claim under the Act — so a head builder cannot use the SOPA to recover from an individual homeowner residing in the property.
What happens if the respondent does not pay after an adjudication determination?
Under s 25 SOPA 1999 (NSW), the claimant can file a certificate of the adjudicated amount with the Supreme Court — which operates as a judgment. The claimant can then take enforcement action: garnisheeing bank accounts, registering a writ of levy over real property, or applying for a charging order. The adjudicated amount also supports a statutory demand — which, if unpaid after 21 days, allows an application to wind up the respondent company.
Can an adjudication determination be challenged in court?
Only by judicial review — not on the merits. The grounds are narrow: jurisdictional error, denial of natural justice, or fraud. Courts consistently uphold determinations that were wrong on the merits, emphasising that SOP provides a quick determination while preserving the right to a final determination of the underlying dispute through other proceedings.