Building and Construction Industry Security of Payment Act 1999 (NSW)
How a payment claim becomes a judgment debt
Every step below runs on business days, and NSW public holidays don't count. Miss a window and the right is gone — there is no extension and no discretion to forgive a late application.
First — does the Act cover you?
- The construction work or related goods and services were supplied in New South Wales.
- Residential owner-occupier jobs are covered. If the contract was entered into on or after 1 March 2021, you can claim against a homeowner living in the property. Contracts signed before that date fall under the old exclusion.
- You last carried out the work within the past 12 months, or within the longer period your contract allows — s 13(4).
Show me my path
What did the other side do after you served your payment claim?
12Months to serve
You — the claimant
Serve the payment claim
You may serve one payment claim per month. It must reach the person who owes you under the contract.
- Identifies the construction work or goods and services claimed for
- States the amount you say is due
- States that it is made under the Act — this endorsement is mandatory
- Head contractors must attach a supporting statement declaring subcontractors have been paid
10Business days
Them — the respondent
They may reply with a payment schedule
The schedule must state what they propose to pay and, if that is less than you claimed, why. Their reasons matter later: at adjudication they cannot rely on any reason they left out of the schedule.
The deadline is 10 business days after service, or a shorter period if the contract sets one.
s 14, s 20(2B)15/20Business days
The due date
Payment falls due
If the contract sets an earlier date, that date applies. Otherwise the maximum is 15 business days from a principal to a head contractor, and 20 business days from a head contractor to a subcontractor.
Owner-occupier contracts work differently. They are exempt residential construction contracts: payment falls due on the date the contract specifies, or 10 business days after the claim if the contract is silent. The 15 and 20 day caps do not apply.
This date is the trigger for everything that follows. Fix it before you do anything else.
s 11(1A)–(1C)From here, three paths — and each has its own clock
Path A
They scheduled less than you claimed
A payment schedule arrived, but for a lower amount — or for nothing at all.
Apply within10 business days of receiving the schedule
s 17(1)(a)(i), s 17(3)(c)
Path B
They scheduled it, then didn't pay
They accepted an amount in the schedule but the due date passed without payment.
Apply within20 business days of the due date
s 17(1)(a)(ii), s 17(3)(b)
Path C
They ignored it completely
No schedule, no payment. You must first give notice of your intention to adjudicate — within 20 business days of the due date. They then get 5 business days to serve a schedule.
Apply within10 business days after that 5-day period ends
s 17(1)(b), s 17(2), s 17(3)(d)
10/20Business days
You — the claimant
Lodge the adjudication application
This is the deadline that ends claims. It is jurisdictional. An adjudicator cannot accept a late application no matter how strong the underlying claim is, and no court can extend it.
The application goes to an Authorised Nominating Authority in writing, and a copy must be served on the respondent.
s 17(3), s 17(5)5Business days
Them — the respondent
They may lodge an adjudication response
Due 5 business days after receiving your application, or 2 business days after notice that the adjudicator accepted it — whichever falls later.
If they never served a payment schedule, they cannot respond at all. And they cannot raise any reason they left out of the schedule they did serve.
s 20(1), s 20(2A)–(2B)10Business days
The adjudicator
Determination
The adjudicator must determine the amount payable within 10 business days of accepting the application, unless both parties agree to longer. They decide the amount, the date it became payable, and the rate of interest.
s 21(3), s 22(1)5Business days
Them — the respondent
They must pay the adjudicated amount
Payable within 5 business days of the determination being served, unless the adjudicator sets a later date.
If they don't pay, you may also give 3 business days' notice and suspend work until you are paid.
s 23(1), s 27Enforce
You — the claimant
Adjudication certificate, then judgment
Request an adjudication certificate from the nominating authority and file it in a court of competent jurisdiction, with an affidavit stating the amount remains unpaid. It takes effect as a judgment debt.
The respondent cannot bring a cross-claim or raise any defence about the underlying contract at this stage. To challenge the judgment they must pay the full amount into court first.
s 24, s 25Judgment debt — now enforceable
From here the ordinary enforcement tools are available: writ for the levy of property, garnishee order, examination notice, and for corporate debtors, a statutory demand.
Note. This flowchart sets out the ordinary path and does not cover every variation — shorter contractual periods, exempt residential contracts, retention money trusts, or claims involving a subcontractor's charge. Section references are to the Act as amended. Timing should always be confirmed against the contract, since a contract may impose a shorter period than the Act's maximum.
