Entitlement To Payment Under The Security Of Payments Act NSW

Matters to be Determined

1. Whether the Act applies.
2. Whether the Claimant is entitled under the Act to full payment of the Payment Claim that is the subject of this Adjudication Application.
3. What is the due date for payment?
4. What rate of interest is the Respondent liable to pay, if any?
5. Who is liable to pay the Adjudicators Fees

Jurisdiction

1. The Claimant submits that the Adjudicator has jurisdiction to determine this matter under the Building & Construction Industry Security of Payment Act 1999 for the following reasons;
2. Pursuant to Section’s 4 and 7 of the Act there is a Construction Contract within the meaning of the Act between the Claimant and the Respondent.
3. Pursuant to Section 7 of the Act the works which are the subject of this Adjudication Application have been carried out in New South Wales.
4. Pursuant to Section 5/6 of the Act, the nature of the works carried out / supplied are “construction works” or “related goods & services”
5. Pursuant to Section 8 of the Act there is a valid Reference Date
6. Pursuant to Section 13 of the Act the Payment Claim was served within 12 months of last carrying out / providing “construction works” or “related goods & services”. The Payment Claim properly identifies the “construction works” or “related goods & services”. The Payment Claim indicates the “claimed amount”. The Payment Claim states that it is “made” under the Act. Pursuant to Section 9 of the Act the Payment Claim sets out how the amount claimed has been calculated. The Claimant is / isn’t a Head Contractor and a Supporting Statement is / isn’t attached.
7. Pursuant to Section 11 of the Act the due date for payment, XX/XX/XXXX, has passed.
8. Pursuant to Section 17/2 of the Act a notice has been prepared and served on the Respondent by the Claimant in accordance with the Act.
9. Pursuant to Section 14 of the Act a valid Payment Schedule was served on the Claimant by the Respondent.
10. Pursuant to Section 17 of the Act the Adjudication Application has been lodged by the Claimant with an Authorised Nominating Authority within the time allowed under the Act and an exact copy of the Adjudication Application dated XX/XX/XXXX, has been served by the Claimant on the Respondent in accordance with the Act.

Contract

Formation

1. Details of formation of arrangement / agreement / contract

1. The Claimant provided the Respondent with a quotation for the Contract works as per the Respondent’s request. – the Offer
2. The Respondent accepted the Claimant’s quotation – the Acceptance.
3. The Respondent instructed the Claimant to commence work on the Project, the Claimant commenced work on the Project – the parties demonstrated their Intention to be Bound by the Contract.

Consideration

1. The Claimant submits that all works / services included in the Payment Claim have been carried out / supplied / delivered / installed pursuant to the Contract, as per the Respondent’s instructions.
2. Furthermore, the Claimant, at the Respondent’s request, carried out variation works.
3. Please find attached [photos/emails or other evidence] of the Contract works and the variation works which were carried out pursuant to the Contract and in accordance with the Respondent’s instructions, these are behind Tab X.

Reference Date

1. As the Construction Contract does not make an express provision for a date when a progress claim can be made, pursuant to Section 8(1)(a) and Section 8(2)(b) of the Act the default of the Act applies; the Reference date is therefore the Last Day of the Named Month.
2. Pursuant to Section 8 of the Act the date for progress claims as per the Construction Contract is {insert date]
3. The Reference date is XXXX.

General Submissions

1. This Payment Claim is made pursuant to s8(1) of the Act which states: ‘a person who has undertaken to carry out construction work or to supply related goods and services under a construction contract is entitled to a progress payment’.
2. The Claimant submits that this adjudication application together with all supporting evidence demonstrates that all of the works / services that are the subject of the Payment Claim are 100% complete and defect free and have been charged at the agreed price / rates as per the Contract which is in accordance with industry / market rates. Therefore the Claimant is entitled to a progress payment.

Rate Of Interest Payable

1. The Claimant submits that in the absence of any express provision within the Contract in respect of interest rates applicable to late payments means that the default of the Act applies. Therefore as per s11 (2) (a) of the Act, the rate will be that prescribed under s 101 of the Civil Procedure Act (NSW) 2005.