Resolving disputes

New South Wales

Building and construction payment disputes - contracts on or after 21 April 2014

If you entered into a contract before 21 April 2014, click below.

Contracts before 21 April 2014

The NSW Building and Construction Industry Security of Payment Act 1999 aims to ensure that any person who undertakes to carry out construction work or to supply related goods and services under a construction contract is entitled to receive, and is able to recover, progress payments. This is a statutory entitlement which does not require the relevant construction contract to make provision for progress payments.

Adjudication under this Act begins when the Claimant serves a payment claim on the Respondent. Timeframes are very strict under the Act. If Claimants do not meet these timeframes, they risk the application being deemed invalid.

Resolution Institute has provided flowchart to assist both parties through the adjudication process to ensure that there is a good understanding of the timeframes under the legislation which are dependent on the actions taken by either party. Parties should also be familiar with the methods of serving documents.

Complete the online form to use the Resolution Institute nomination service to appoint an adjudicator for you. Then, please submit your payment.

Complete the online form Submit your payment

The process includes the following:
1) Payment claim
2) Payment schedule
3) 17(2) notice
4) Adjudication application
5) Adjudication response
6) Adjudication decision
7) Fees
8) NSW legislative and case law update


1) Payment claim

The Adjudication process starts when a Claimant issues a payment claim on the Respondent. It is important that all the criteria in the legislation for this document are met and your payment claim is served correctly on the Respondent.

A payment claim is an invoice that must:

  • Be in writing
  • Describe in detail the construction work, related goods or services which are the subject of the claim
  • Be addressed to and served on the Respondent
  • State the claimed amount

Supporting Statement

If you are a Head Contractor (Note: this does not apply to sub-contractors) making a Payment Claim to a Principal, a supporting statement must also accompany the payment claim under the Building and Construction Industry Security of Payment Act 1999 (NSW). This requires the Head Contractor to declare that all subcontractors they are directly engaged with have been paid for the construction work.

The Building and Construction Industry Security of Payment Regulation states that a supporting statement must include the following information:

  • Business Name of Head Contractor and ABN
  • Business name of Sub Contractor, ABN and the contract number/identifier, OR the statement ‘has entered into a contract with the subcontractors listed in the attachment to this statement’ (whichever is relevant)
  • Construction start and end date
  • Date of the payment claim
  • Signed and dated declaration of the Head Contractor, Director of the Head Contractor or a person authorised by the Head Contractor on whose behalf the declaration is made

A template of the supporting statement can be downloaded below. Head Contractors may develop their own supporting statement but must include all information set out in the regulation.

Head Contractors who provide false or misleading information in the supporting statement may be penalised – a fine of up to $22,000 and/or 3 months imprisonment is available.

Ways that a claimant can serve a payment claim on a respondent include:

  • As allowed by the contract
  • Personal service (e.g. hand delivery)
  • Pre-paid Post to the Respondent’s ordinary place of business
  • Fax to the Respondent’s ordinary place of business
It is important that evidence of service is kept, such as fax transmission reports.

The payment schedule is required to be served by the Respondent on the Claimant by the earlier of:

  • The date in accordance with the terms of the contract or

  • If the contract does not specify a date, then according to the Act, you are entitled to be paid 10 business days after the payment claim has been issued on the Respondent

Sample payment claim NSW (DOC)

Template Supporting Statement (DOC)


2) Payment schedule

A payment schedule is a response to a payment claim by the Respondent.

It must (as per the Act):

  • Be in writing
  • Be addressed to the Claimant.
  • Identify the payment claim to which it relates
  • State the scheduled amount that the Respondent proposes to pay (even if that amount is $NIL)
  • Provide reasons for withholding payment if the amount proposed to be paid is less than the claimed amount. These are the only reasons you can rely on if issuing an Adjudication Response later so ensure they are comprehensive.

The payment schedule is required to be served by the Respondent on the Claimant by the earlier of:

  • The date in accordance with the terms of the contract or
  • If the contract does not specify a date, then according to the Act, you are entitled to be paid 10 business days after the payment claim has been issued on the Respondent

Please note, that the due date for the payment and the due date for the payment schedule are not the same thing. A Payment Schedule is required to be provided within the earlier of the time stated for such document in the contract or 10 Business Days. However, a notice of election pursuant to section 17(2) cannot be issued before the due date for payment has passed; and then must be issued with the next 20 Business Days.


3) 17(2) notice

A 17(2) Notice is issued if the Respondent does pay or send a payment schedule in response to the Claimant's payment claim. The 17(2) Notice is a notification by the Claimant to the Respondent of the intention to apply for Adjudication if the claimed amount remains unpaid.

The 17(2) Notice must:

  • Be made in writing
  • State that no payment schedule was recieved in response to the payment claim
  • Refer to and include the original payment claim
  • State that it is "a 17(2) notice according to the Building and Construction Industry Security of Payments 1999 NSW"
  • State that you intend to apply for adjudication

The Claimant has 20 business days after the due date for payment of the payment claim to issue a 17(2) Notice. However, a notice of election pursuant to section 17(2) cannot be issued before the due date for payment has passed; and then must be issued with the next 20 Business Days. A 17(2) Notice gives a Respondent 5 business days within which to provide payment or a payment schedule.

Once the 5 business days following the service of the 17(2) Notice on the Respondent have expired, the Claimant has 10 business days within which to bring forward an Adjudication Application to an Authorised Nominating Authority (ANA), such as Resolution Institute.The Respondent does not have the right to respond to the adjudication application.

Sample 17(2) Notice (DOC)


4) Adjudication application

An Adjudication Application must (as per the Act):

  • Be in writing and:
  • Be addressed to the ANA
  • Be accompanied by the appropriate application fee
  • Must identify the payment claim and the payment schedule (if any) to which it relates
  • Contain submissions relevant to the Claim, such as the history of the relationship between the parties, and all correspondence and documentation that will support your case. The content included in your application is to be decided by the Claimant.
  • Be sent to the Respondent at the same time that the Application is sent to the ANA. Evidence of service of the Application to the Respondent should be provided to the ANA, for example a copy of fax transmission report.

Evidence of service of the Application to the Respondent should be provided to the ANA, for example a copy of fax transmission report.

You may apply for adjudication if:

  • You disagree with the amount the Respondent offers in the payment schedule and it is less than 10 business days since you received the payment schedule
  • The Respondent offers to pay $Nil in the payment schedule and it is less than 10 business days since you received the payment schedule
  • The Respondent fails to pay the whole or part of the amount due and it is less than 20 business days since the due date for payment has past
  • The Respondent fails to issue a payment schedule and it is less than 10 business days since the end of the 5 business days of the 17(2) notice

You can submit an Adjudication Application by:

  • email: nominations@resolution.institute (all documents are to be attached as PDF's);
  • hand: Level 2, 13-15 Bridge Street, Sydney between 9 AM and 5 PM Monday - Friday;
  • Fax: 9251 3733.

Please ensure that you are aware of the service requirements for notices under the Building and Construction Industry Security of Payment Act 1999.

Please fill in and attach the approved form (below) to the front of the adjudication application.

NSW BCISP Resolution Institute Application form (DOC)

NSW sample claimant submission (DOC)


5) Adjudication response

If the Respondent has issued a payment schedule they will be given the option to lodge an adjudication response. This should be lodged with the ANA handling the application within 5 business days of receiving a copy of the application or 2 business day of receiving notice of an adjudicators acceptance, which ever is later.

An Adjudication Response must (as per the Act):

  • Be in writing and:
  • Identify the adjudication application to which it relates
  • May contain such submissions relevant to the response as the respondent chooses to include
  • A copy of the adjudication response must be served on the claimant at the same time it is served on the ANA

The 17(2) notice which is an intention to apply for adjudication if the claimed amount remains unpaid. This notice gives the Respondent 5 business days within which to provide payment or a payment schedule.

If the respondent has not paid or provided a payment schedule by the expiry of the 5 business day period , the claimant has the right to lodge an adjudication application within 10 business days. Under these circumstances the Respondent does not have the right to make an adjudication response.

Sample respondent submission NSW (DOC)


6) Adjudication decision

The decision is due 10 business days from the date that the adjudicators acceptance is sent to the parties. The parties are jointly and severally liable for the full amount of the adjudicators fees. It is the responsibility of the parties to determine between themselves who will pay the total amount due so that the determination will be released. The precise allocation between the parties in respect of these amounts is specified in the determination.

After release the Respondent is required to pay the adjudicated amount (if any) within 5 business days from the release of the determination to the parties failure to make this payment entitles the Claimant to request (in writing) an Adjudication Certificate from Resolution Institute to file a Judgment Debt in the appropriate court of jurisdiction.

Resolution Institute is not at liberty to advise the Respondent or any of its representatives whether or not an adjudication certificate has been requested or issued.


7) Fees

Application Fees

  • Claims under $20,000, application fee of $165.00 (inclusive of GST)
  • Claims over $20,000, application fee of $209.00 (inclusive of GST)

Adjudicator Fees

  • Claims under $5,000 fixed rate of $660.00 (inclusive of GST)
  • Claims over $5,000 adjudicator hourly rate applies. Variation between $245 to $450 per hour (exclusive of GST) – depending on the adjudicator allocated.

The relevant fees are payable at the time the parties to an adjudication are notified of a decision by the adjudicator.

The fees stated above are inclusive of the Authorised Nominating Authority Fee.

Adjudication Certificate Fees

  • Nil

Payment methods Accepted

Resolution Institute accepts the following payment methods:

  • Visa
  • MasterCard
  • Cheque
  • Electronic Funds Transfer (EFT)

8) NSW legislative and case law update

What’s new in the Building and Construction Industry Security of Payments Act (1999) NSW?

After the report by John Murray on the BCISP Acts across Australia, various states are making amendments including NSW. The Building and Construction Industry Security of Payment Amendment Act 2018 (the Amendment Act) and the Building and Construction Industry Security of Payment Amendment Regulation 2019 (the amending Regulation) are the newest bills which amend the NSW Act and will commence on 21 October 2019.

The following is a brief summary of the effects of the update:

  • Change of definition of “claimant” in s8
  • Reduction of the maximum time a head contractor has to pay a subcontractor from 30 business days to 20 business days in s11B
  • Creation of a new payment structure so subcontractors can make a payment claim at least once per month for work and make a final claim if a contract is terminated
    • The timer for submitting a payment claim begins on the last day of the month
    • Payment claims may include multiple progress payments, but only one payment claim can be submitted per month
    • There will no longer be a 'reference date' named in the Act.
  • Allows for a clear period of time for withdrawal of application by the claimant in s17A:
    • Can happen at any time in written form to either an Authorised Nominating Authority or the adjudicator.
    • Can be opposed by the other side if the adjudicator thinks it’s in the interests of justice.
  • Alters the window for calculating when the adjudicator must deliver their determination as per s21(3)(a) of the Act.
  • Allows inspection of trust account records by officials and adjudicators
  • Applies increased liability to corporations for all offences under the Act
  • Allows the Supreme Court to overturn decisions if there has been jurisdictional error.
  • Applicants can no longer file applications if they are in liquidation. If applicants go into liquidation while an adjudication is ongoing, then the liquidation is taken as a withdrawal.
  • Increased compliance and enforcement powers for Fair Trading.
  • The amending Regulation has been developed to support and facilitate commencement of the Amendment Act and includes the following reforms:
    • Exempting owner occupier construction contracts from the operation of the Act
    • Specifying the offences about retention money trust accounts as executive liability offences and
    • Specifying the offences under the Act and Regulation for which penalty notices may be issued and the amount of the penalty payable.