The Act
The Building and Construction Industry Security of Payment Act 1999 (NSW) is in force in its current consolidated form. The most significant current-era changes came through the 2018 amendment Act (No 78 of 2018), in force from 2019 — among other things, those amendments re-introduced the requirement that a payment claim state it is made under the Act. That endorsement requirement is current law, so a claim without it is exposed.
Serving a payment claim
The Act provides (s 13(4)) that a payment claim may be served within the period set by the construction contract or within 12 months after the construction work to which the claim relates was last carried out, whichever is later.
The claim must state that it is made under the Act (s 13(2)(c)). This wording is not optional decoration — it is a statutory requirement of a valid claim under the current law. If your subcontract is connected to residential work, note that NSW government guidance describes an additional special statement for certain residential-connected subcontracts; check the guidance linked in the Sources section below.
The payment schedule
The Act requires (s 14(4)) the respondent to provide a payment schedule within the time set by the contract or 10 business days after the payment claim is served, whichever is earlier. The schedule states what the respondent proposes to pay and why any amount is withheld.
If no payment schedule is provided in time, the Act provides that the respondent becomes liable for the full claimed amount. Silence is not neutral under this Act — it has consequences for the respondent.
When payment falls due
- Principal to head contractor: due 15 business days after the claim is served (s 11(1A)).
- Payment to a subcontractor: due 20 business days after the claim is served (s 11(1B)).
- Exempt residential construction contracts: as the contract provides, otherwise 10 business days (s 11(1C)).
Adjudication
The application deadline depends on which situation you are in:
- Schedule provided for less than the claim: apply within 10 business days after receiving the schedule (s 17(3)(c)).
- Scheduled amount not paid by the due date: apply within 20 business days after the due date (s 17(3)(d)).
- No schedule at all: you must first give the respondent notice of your intention to apply, within 20 business days after the due date (s 17(2)). The respondent then has 5 business days to provide a schedule, and you apply within 10 business days after that 5-day period ends (s 17(3)(e)).
The respondent's adjudication response is due at the later of 5 business days after receiving the application or 2 business days after notice of the adjudicator's acceptance. The adjudicator must decide within 10 business days after the response is lodged or the response window ends (s 21(3)(a)).
Business days are not calendar days
Every timeframe above runs in business days. The Act defines a business day (s 4) as a day that is not a Saturday, Sunday or public holiday, and not 27 to 31 December. Over the Christmas period the clock stops for those excluded days, so a deadline that looks like two weeks on the calendar can stretch well past that — and a deadline you thought you had can arrive sooner than a calendar count suggests. Count business days, not calendar days.
Key timeframes at a glance
| Step | Timeframe | Source |
|---|---|---|
| Serve payment claim | Contract period or 12 months after work last carried out, whichever later | s 13(4) |
| Payment schedule | Earlier of contract time or 10 business days | s 14(4) |
| Payment due — subcontractor | 20 business days after claim served | s 11(1B) |
| Payment due — head contractor | 15 business days after claim served | s 11(1A) |
| Adjudication — schedule less than claim | 10 business days after receiving schedule | s 17(3)(c) |
| Adjudication — scheduled amount unpaid | 20 business days after due date | s 17(3)(d) |
| Adjudication — no schedule | Notice within 20 business days after due date; respondent has 5 business days; apply within 10 business days after that period | s 17(2), s 17(3)(e) |
| Adjudicator's decision | 10 business days after response lodged or response window ends | s 21(3)(a) |