Victorian Consolidated Legislation

Building and Construction Industry Security of Payment Act 2002 - SECT 16

Consequences of not paying claimant where no payment schedule

16. Consequences of not paying claimant where no payment schedule



(1) This section applies if the respondent-

   (a)  becomes liable to pay the claimed amount to the claimant under section
        15(4) as a consequence of having failed to provide a payment schedule
        to the claimant within the time allowed by that section; and

   (b)  fails to pay the whole or any part of the claimed amount on or before
        the due date for the progress payment to which the payment claim
        relates.



(2) In those circumstances, the claimant-

   (a)  may-

   (i)  recover the unpaid portion of the claimed amount from the respondent,
        as a debt due to the claimant, in any court of competent jurisdiction;
        or

   (ii) make an adjudication application under section 18(1)(b) in relation to
        the payment claim; and

   (b)  may serve notice on the respondent of the claimant's intention-

   (i)  to suspend carrying out construction work under the construction
        contract; or

   (ii) to suspend supplying related goods and services under the construction
        contract.

(3) A notice referred to in subsection (2)(b) must state that it is made under
this Act.

(4) If the claimant commences proceedings under subsection (2)(a)(i) to
recover the unpaid portion of the claimed amount from the respondent as a
debt-

   (a)  judgment in favour of the claimant is not to be given unless the court
        is satisfied-

   (i)  of the existence of the circumstances referred to in subsection (1);
        and

   (ii) that the claimed amount does not include any excluded amount; and





   (b)  the respondent is not, in those proceedings, entitled-

   (i)  to bring any cross-claim against the claimant; or

   (ii) to raise any defence in relation to matters arising under the
        construction contract.