Victorian Consolidated Legislation

Building and Construction Industry Security of Payment Act 2002 - SECT 17

Consequences of not paying claimant in accordance with payment schedule

17. Consequences of not paying claimant in accordance with payment schedule



(1) This section applies if-

   (a)  a claimant serves a payment claim on a respondent; and

   (b)  the respondent provides a payment schedule to the claimant-

   (i)  within the time required by the relevant construction contract; or

   (ii) within 10 business days after the payment claim is served- whichever
        time expires earlier; and

   (c)  the payment schedule indicates a scheduled amount that the respondent
        proposes to pay to the claimant; and

   (d)  the respondent fails to pay the whole or any part of the scheduled
        amount to the claimant 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 scheduled 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)(a)(ii) in
        relation to the payment claim; and

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

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

   (ii) 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 scheduled amount from the respondent as a
debt-

   (a)  judgment in favour of the claimant is not to be given unless the court
        is satisfied of the existence of the circumstances referred to in
        subsection (1); 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.









Division 2-Adjudication of disputes