If a claimant makes a payment claim under the Building Industry Fairness (Security of Payment) Act 2017 (Qld), they have, upon receiving the respondent’s payment schedule or the expiration of the time available to the respondent to give one, two (2) options for pursuing that claim. Those options are:

1. If there is no payment schedule, or if the payment schedule proposes to pay an amount which is not paid by the due date for the progress payment to which the payment schedule relates – give the respondent a warning notice, wait 5 business days, and then recover the amount owed by the respondent by commencing a proceeding in Court of competent jurisdiction; or
2. Apply for adjudication of their payment claim.

It is always better for a claimant to apply for an adjudication.

This is because the claimant’s decision to approach a Court to recover the amount owed by the respondent, instead of applying for adjudication, limits their options for enforcing their entitlement to payment on an interim basis. If a claimant does not apply for an adjudication and instead goes straight to Court, then they will miss out on their statutory rights to:-

1. Suspend carrying out construction work, or supplying related goods or services, under section 98(1) of the Building Industry Fairness (Security of Payment) Act 2017 (Qld). If the claimant suspends carrying out construction work, or supplying related goods or services, under that section:
   1. The respondent is liable to pay the claimant the amount of any loss or expense incurred by the claimant because the respondent removes any part of the work or supply from the claimant’s contract; and
   2. The claimant is not liable for any loss or damage suffered by the respondent, or by any person claiming through the respondent, as a result.
2. Require a higher party for the adjudicated amount to retain a sufficient amount to cover payment of the adjudicated amount, or a charge over that amount. This option is similar to claiming a subcontractor’s charge.
3. Register a charge over the property that the claimant’s construction work was carried out on, or their related goods and services were supplied to – even if the property is not owned by the respondent, but by their family members, or related body corporates – and then enforce that charge.

These statutory rights only exist if a claimant applies for an adjudication of their payment claim and an adjudicator decides that an adjudicated amount is payable by the respondent. These statutory rights do not exist for a claimant who goes straight to Court, even if they obtain a final judgment for the amount owing by the respondent under the construction contract.

Call Rose Litigation Lawyers for more information about the law relating to progress payments.