Victorian Consolidated Legislation

Building and Construction Industry Security of Payment Act 2002 - SECT 28R

Proceedings to recover amount payable under section 28M or 28N

28R. Proceedings to recover amount payable under section 28M or 28N



(1) If an authorised nominating authority has provided an adjudication
certificate to a person under section 28Q, the person may recover as a debt
due to that person, in any court of competent jurisdiction, the unpaid portion
of the amount payable under section 28M or 28N.

(2) A proceeding referred to in subsection (1) cannot be brought unless the
person provided with the adjudication certificate files in the court-

   (a)  the adjudication certificate; and

   (b)  an affidavit by that person stating that the whole or any part of the
        amount payable under section 28M or 28N has not been paid at the time
        the certificate is filed.

(3) If the affidavit indicates that part of the amount payable under section
28M or 28N has been paid, judgment may be entered for the unpaid portion of
that amount only.

(4) Judgment in favour of a person is not to be entered under this section
unless the court is satisfied that the person liable to pay the amount payable
under section 28M or 28N has failed to pay the whole or any part of that
amount to that first-mentioned person.

(5) If a person commences proceedings to have the judgment set aside, that
person-

   (a)  subject to subsection (6), is not, in those proceedings, entitled-

   (i)  to bring any cross-claim against the person who brought the
        proceedings under subsection (1); or

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

   (iii) to challenge an adjudication determination or a review determination;
        and

   (b)  is required to pay into the court as security the unpaid portion of
        the amount payable under section 28M or 28N pending the final
        determination of those proceedings.

(6) Subsection (5)(a)(iii) does not prevent a person from challenging an
adjudication determination or a review determination on the ground that the
person making the determination took into account a variation of the
construction contract that was not a claimable variation.

(7) A claimant may not bring proceedings under this section to recover an
adjudicated amount under an adjudication determination if the claimant has
made an adjudication review application in respect of that determination and
that review has not been completed.

(8) Nothing in this section affects the operation of any Act requiring the
payment of interest in respect of a judgment debt.

Division 3-Claimant's right to suspend construction work