New South Wales

Air Conditioning and Mechanical Contractors' Association of New South Wales - ABN 99 000 546 538

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Security of Payment

Disclaimer

The Air Conditioning and Mechanical Contractors' Association of New South Wales Limited:

1.  Expressly disclaims all and any liability to any persons whatsoever in respect of anything done by any person in reliance, whether in whole or in part, on this web site; and

2.  Makes no representations about the currency of information on this web site.

Subject to the above disclaimer, scroll down for further information about the Building and Construction Industry Security of Payment Act 1999.

General information

1. Read the information below and also read the information on the NSW Department of Commerce web site. Click here to enter that site.

2. AMCA-NSW is an Authorised Nominating Authority under Section 17.3 of the Building and Construction Industry Security of Payments Act 1999, as amended. This means that we will, upon application and payment of our fee, receive your application and refer it to an adjudicator nominated by us. Our application fee also covers the issue of an Adjudication Certificate should you require it. Our fee DOES NOT cover the cost of the adjudication itself.

3. NOTE. The Act and Regulations are very prescriptive and their provisions must be followed exactly. All invoices and other claims submitted to your customer (builder, client, principal contractor etc.) should bear the following wording:

THIS IS A CLAIM FOR PAYMENT
UNDER THE BUILDING AND CONSTRUCTION INDUSTRY SECURITY OF PAYMENT ACT 1999.    Back to top

Terminology

The person or firm claiming the money is known as the CLAIMANT. The person or firm from whom the money is being claimed is known as the RESPONDENT.    Back to top

Time limits

Click here for a diagrammatic representation of how the Act operates - time limits, procedures etc. (Reproduced by courtesy of Mr Hank Laan (HCL Associates Pty Ltd).

An adjudication application cannot be lodged after expiration of the relevant time specified in section 17 of the Act, so it is in your interest to lodge the claim well within the time allowed under the Act.    Back to top

Specific cases

If you are unsure about how the Act works in your particular case, you are advised to consult a solicitor or arbitrator experienced in the workings of the Act. The Association is unable to offer specialist legal advice.    Back to top
 

Small claims

See the note under the heading Adjudicators' charges below. The likely level of charges should be taken into account when deciding whether to pursue a claim under the Act. In the case of small claims it may be cheaper and more efficient to secure a Judgement Debt from a Local Court (formerly known as a Court of Petty Sessions). A solicitor or a court official will provide information.    Back to top
 

General procedure

Applications for appointment of an adjudicator under the Act must:

1. Be made in the form prescribed by the regulations (click here for a copy); and

2. Have attached copies of:

• The construction contract (which may be a formal contract document, an exchange of letters, a quotation and acceptance or a record of an oral agreement) under which the payment claim is made;
   

• The payment claim;
   

• The  payment schedule, if any. If the respondent has failed to provide a payment schedule then the adjudication application cannot be made until after the due date for payment and after the claimant has given the respondent a further opportunity to provide a payment schedule (see section 17 of the Act);
   

• Any supporting documents, e.g. certificates, test results, delivery dockets, invoices, statutory declarations, written statements etc.;
   

• A written submission by the claimant evidencing that the claimed amount is due and unpaid and evidencing the value of the work, materials or services for which payment is claimed. The submission must also respond to the reasons, if any, given by the respondent for not paying and must provide evidence or arguments to refute the respondent’s grounds for withholding payment;
   

• the Association's fee (currently $462 including GST).  A tax invoice will be issued upon payment. Credit cards will be accepted but the following surcharges apply: 1.5% for Mastercard and Visa; 3% for American Express and Diners' Club.
  
  THIS FEE IS PAYABLE IN ADDITION TO THE ADJUDICATOR'S CHARGE (see below).    Back to top

Lodgement of claims

When you have completed the application and all documents attached to it, deliver it (recommended) with your cheque for $462.00 to AMCA-NSW at 501/5 Rosebery Avenue Rosebery NSW 2018.

A receipted tax invoice will be issued when your cheque has been received.

Posting is NOT recommended as delays in delivery or receipt may prejudice or disallow your claim.    Back to top

Copy of claim to respondent

A copy of the adjudication application and all attachments or other things accompanying it must be served on the respondent at the same time as it is served upon AMCA-NSW.    Back to top

Adjudicators' charges

It is not possible to determine exactly how much it will cost to adjudicate each claim. At the date of posting, adjudicators' charges appear to range between $200 and $250 per hour, and are payable in addition to the $440 due to this Association.  The cost to the claimant will depend on many issues such as the complexity of the claim, the submission of relevant documents, the time period to which the claim refers, the time required to be spent by the adjudicator in assessing the claim and other factors relating to that claim only.

Claimants are advised to request the adjudicator to include, in his or her determination, a clause directing full recovery of the adjudicator's charge, the fee payable to the Authorised Nominating Authority and interest of at least 9% on the unpaid balance of the adjudication.

In the case of small claims it may be cheaper and more efficient to secure a Judgement Debt from a Local Court (formerly known as a Court of Petty Sessions). A solicitor or a court official will provide information.    Back to top

To apply for adjudication under the Act

Click here to download the application form; complete it and deliver it with supporting documents (posting is not recommended) to the Association with payment. The Association's address is 5th floor, No. 5 Rosebery Avenue Rosebery NSW 2018.

           Back to top         Date of posting: 11 December 2007