NAVIGATION

Building and Construction Industry Security of Payment Act NSW 1999 (SOPA 1999)

I have been undertaking the collating of evidence for adjudication for 11 years under the Building and Construction Industry Security Of Payment Act NSW 1999 and Building and Construction Industry Payment Act QLD 2004. (BCIPA)

To date I have never lost a matter for adjudication representing mainly Applicants, but I also undertake work for Respondents.

I have won close to 1.5 million dollars for several contractors to date.

The legislation is now available for both Builders and trade contractors within the residential building sector who have had problems being paid by the homeowner. This is akin to NCAT or Civil Court, however it comes with a quick turnaround of approximately 6 weeks for determination. This Act is quicker than NCAT and Civil Matters which take much longer, allowing asset disposal and companies to disappear within longer time frames which are inherent with NCAT and Civil matters.

DETAILS

With 41 years-experience as a Builder carrying out construction work on Residential and Commercial high- rise projects I have a distinct intuition of how these claims arise. By using my knowledge and understanding of Building I have proven to be a very tough adversary for anyone counter claiming on my client’s behalf.

Lawyers are not really required under the ACT until a large sum is reached and the process becomes too much for one person to navigate. If a person doesn’t know your business, then they are going to have a hard time putting a case together.

Whilst Lawyers understand how to put the matter in front of a judge or Tribunal Member, they do not fully understand the process of how an adjudicator will view the evidence. This is where my skills and intuition help. You and I will logically create a document that the Adjudicator can understand without just referring to the SOPA ACT clauses on their own. This has worked for me gaining 100% track record to date. I have great confidence in serving the evidence that commenced from a Payment Claim to A nominated Authority (ANA) who determines the outcomes. The ANA looks at each case handed in,and determines the skill level of the adjudicator that would best suit the case to determine the outcome of the matter.

I undertook a 3-day seminar for Adjudicators run by a well-known ANA. (Authorised Nominating Authority) to understand who adjudicates over these applications and how they think which proved very useful from my point of view. Barristers, lawyers, Construction Managers, Contracts Administrators, and many other professionally qualified persons who have undertaken the course are all utilized by the ANA dependent on the evidence supplied and complexities of the matter.

If a construction contract was entered and services, work or related goods under the construction contract were not paid for, the contractor is liable to pay. Providing the work is professional and of a merchantable quality. In todays building industry in NSW just because work has been undertaken and materials used, is not the sole basis of a claim. I undertake Building Defects as well, and in those circumstances within the SOPA 1999 I would almost certainly be acting for a respondent against a payment claim for defective work and materials to be paid.

For a builder or Contractor carrying out construction work or supply in the Building and Construction industry, getting paid can be the hardest part of the actual project. Presently and legally the payment of an invoice under a contract with a specified Reference Date, (Submission of an invoice) and Due Date (Cleared funds in bank account) is 30 days.

Talks are underway to alter this to 20 days for the smaller companies to have the funds to pay for their materials, workers and benefits.

Without a Contract, payment is due after 10 Business days once the invoice has been presented and leaving one day’s grace period for receipt of that invoice by Fax, Email or post. This invoice is known as a Payment Claim. Unless a Payment Schedule is issued disputing the amount of the claim and why it has not been paid, then the claim is pretty much going to be found to be owed.

The Payer/Respondent must issue a payment schedule within that 10-day period if he does not intend to honour the full amount of the invoice and state the reasons why. If he does not the Payee/ Applicant can decide whether to give the Payer another 5 business days or create a report on the facts and lodge an application with an Adjudicator service provider.

This is a very time sensitive system which must be abided by, or you must start the process all over again.

Once the Adjudicator makes his decision, he will usually give 5 days to the Payer/Respondent to make good on the invoice in full. In some cases, the adjudicator may find that the Payer did in fact have a right to withhold payment and notify the Payee/ Applicant of the terms of his findings.

If the invoice and payment issue is successful in its entirety, then the Adjudicator will also award the costs of the application to the Payee/ Applicant or vice versa and including interest.

If the losing party does not comply with the Adjudicators decision an Adjudication certificate can be applied for which can then be taken to the Local Court. This can be turned into a Judgement of Debt by a Magistrate. Enforcement proceedings can then begin, and the money owed to you from a contract can slowly begin to be recovered. I have had a 100% success rate with this.

Appeals can only be heard in the Supreme Court, only if it is found that the Adjudicator acted outside of the parameters of the legislation or got a part of the legislation wrong in his decision.

If you’ve not been paid for work or goods or services that you have completed or provided in the building and construction sector, I, Richard Jones, can help move the system forward and begin the timely process of building a case for remuneration when you need it most. Contact me on 0419 416 040 for a quick confidential discussion about your situation.