How to use the Security of Payment Legislation to recover or reject progress claims

By Dr Samer Skaik

The Building and Construction Industry Security of Payment legislation (SoPA) is a vital legal framework for contractors and subcontractors in the construction industry, particularly for the recovery of progress payments. Understanding and effectively utilizing this legislation can safeguard the financial health of businesses and ensure the smooth progression of construction projects. The purpose of this post is to offer a brief guide on navigating the Security of Payment legislation, highlighting its importance and providing practical steps for contractors and subcontractors to effectively manage and recover progress payments.

Understanding the Importance of SoPA

1. Ensuring Timely Payments: SoPA is designed to maintain healthy cash flow within the construction industry by enabling contractors and subcontractors to receive timely payments for their work.
2. Alternative to Traditional Litigation: This legislation provides a faster and more efficient method for dispute resolution compared to traditional court proceedings, which is crucial in an industry where payment delays can have significant financial repercussions.
3. Statutory Right to Progress Payments: The legislation grants a statutory right to progress payments, ensuring those who have performed work or supplied goods and services under a construction contract are compensated.
4. Structured Dispute Resolution: SoPA offers a structured and rapid process for resolving payment disputes, including procedures for making and responding to payment claims and a process for adjudication.
5. Fair and Equitable Treatment: The legislation aims to create a level playing field, reducing the risk of exploitation, especially of smaller contractors and subcontractors.

How to Get Started and Use the Legislation

1. Know Your Rights and Duties: Familiarize yourself with the Security of Payment Act applicable in your state, as there might be variations in different states or territories.
2. Review Contracts: Ensure your contracts are in line with the SoPA, focusing on payment terms and dispute resolution procedures.
3. Prepare Payment Claims Accurately: Create payment claims in accordance with the Act, clearly identifying all parties involved and the construction works that were carried out, including a statement that it is made under the SoPA, and detailing the work or services provided.
4. Timeliness is Key: Submit payment claims within the specified period under the Act. Late submissions can invalidate your claim.
5. Maintain Comprehensive Records: Keep detailed records of your work to support your payment claims, particularly important in disputes.
6. Respond to Claims Appropriately: If you receive a payment claim, respond within the Act’s timeline, either agreeing to pay or providing reasons for withholding payment.
7. Leverage Dispute Resolution: In disputes, use the SoPA’s adjudication process for faster resolution.
8. Consider Legal Advice: If you’re new to SoPA, or if there are complexities in your contract, seeking legal advice can be beneficial.

Avoiding Common Pitfalls

• Incorrect Respondent: Address the claim to the correct legal entity. Incorrect addressing can invalidate the claim​​.
• Failing to Include Mandatory Statements: In most jurisdictions, omitting the required endorsement under the SoPA makes the claim invalid​​.
• Inadequate Description of Work: The claim may be invalid if it lacks necessary details to identify the work or related goods and services and the calculation of the sum claimed​​​​.
• Claiming for Out-of-Scope Work: Ensure that the claim only includes work or services covered under the SoPA​​.
• Incorrect Timing: Avoid issuing claims before the appropriate reference date or after the period specified in the legislation.
• Using Dropbox & Hyperlinks: Avoid using Dropbox and similar platforms for the service of payment claim or payment schedule as any service by providing a hyperlink to download documents is not effective legally.

Additional Considerations

• Legal Compliance: The claim should comply with the specific requirements of the SoPA of the relevant state or territory​​​​.
• Contractual Obligations: Adhere to any additional requirements or procedures outlined in the construction contract regarding payment claims​​.

Incorporating these practices and understanding the significance of the Security of Payment legislation will enable contractors and subcontractors in the construction industry to protect their rights to progress payments, fostering financial stability and operational efficiency.