Welcome back to our series on the Security of Payment Act (SOPA). In our last post, we navigated the fast-paced world of adjudication. We saw how SOPA provides a powerful mechanism for resolving payment disputes swiftly. However, this speed and rigidity mean that procedural missteps can have significant and costly consequences. The Act is unforgiving of errors. A simple mistake in timing or content can derail a valid claim or leave a respondent with a hefty, indefensible bill. Today, we're flagging the most common pitfalls we see in practice. Being aware of these traps is the first step to avoiding them, whether you are the one making a claim or the one responding to it. Here are some of the most common mistakes made by parties using the SOPA regime. The Defective Payment Claim The entire SOPA process begins with the payment claim. If this initial document is invalid, the whole process can collapse. Common errors include: 🔍Failure to Identify as a SOPA Claim: The claim must explicitly state that it is made under the relevant Security of Payment Act. This simple sentence is non-negotiable. 📑Insufficient Detail: The claim must clearly identify the construction work or related goods and services to which the progress payment relates. A vague, lump-sum figure without adequate breakdown or reference to the contract may be deemed invalid. ❌Incorrect Service: The claim must be served on the person specified in the contract or as otherwise required by the Act. Sending it to the wrong person or address can render it ineffective. Missing the Clock: Fatal Timing Errors As we stressed in Part 4, SOPA runs on a stopwatch. For a claimant, missing a deadline is often fatal to the claim for that reference period. Key timing mistakes include: 🔨Lodging an Adjudication Application Too Early or Too Late: The window to apply for adjudication is strict and varies depending on whether a payment schedule was provided and the amount paid. Applying even one day outside this window will result in the application being rejected. ⏰Waiting Too Long After Work is Complete: SOPA has time limits for serving a final payment claim after the completion of work under the contract. The Under-Prepared Adjudication Application When a dispute proceeds to adjudication, the application is the claimant's primary opportunity to plead their case. A common mistake is to submit a sparse application, assuming the adjudicator will investigate or fill in the blanks. The application must be a comprehensive, self-contained package including: 🔵All relevant contractual documents. 🔵Evidence of the work performed (photos, delivery dockets, signed day sheets). 🔵Detailed submissions explaining why the amount is owed. An adjudicator can only decide based on the information provided. What you leave out cannot be considered. Mistakes Primarily Made by Respondents Ignoring a Payment Claim This is arguably the biggest and most costly mistake a respondent can make. If a respondent fails to provide a payment schedule within the statutory timeframe (typically 10 business days), they become liable to pay the entire amount claimed by the claimant, regardless of any genuine disputes or defects. The Inadequate Payment Schedule Almost as bad as providing no schedule is providing a defective one. To be valid, a payment schedule must: 🔵Identify the payment claim it is responding to. 🔵State the amount of the payment (if any) that the respondent proposes to make (the "scheduled amount"). 🔵If the scheduled amount is less than the claimed amount, it must state all reasons for withholding payment. Vague statements like "work is defective" are insufficient. The reasons must be specific enough for the claimant to understand the basis of the dispute. The "New Reasons" Trap This is a crucial point that many respondents misunderstand. In an adjudication response, a respondent is generally barred from introducing any new reasons for withholding payment that were not first included in their payment schedule. This makes the payment schedule the single most important document for a respondent. A failure to list a reason at that early stage means you lose the right to argue it before the adjudicator. Universal Pitfalls for Both Parties 🔵Poor Record Keeping: SOPA disputes are won and lost on evidence. Parties who fail to maintain meticulous records—daily logs, site diaries, photographic evidence, variation approvals, and clear written communications—are at a significant disadvantage. Think of your documentation as your armour; without it, you are exposed. 🔵Going it Alone: While SOPA is designed to be more accessible than the courts, its technical requirements and strict deadlines create a minefield for the inexperienced. The cost of professional legal advice to ensure compliance is often a fraction of the amount that could be lost through a procedural error. SOPA is a powerful tool, but it demands respect for its strict processes. Diligence, attention to detail, and a clear understanding of the rules are the keys to using it effectively and avoiding its many pitfalls. In our next and final post in this series, we will cover the last step in the process: Enforcement. We'll explore what happens when a party fails to comply with an adjudicator's determination and the steps a successful claimant can take to recover the money they are owed. Stay tuned!

Making the decision to move into a retirement village is a significant milestone. It often represents a positive step towards a more secure, social, and low-maintenance lifestyle. However, the legal and financial agreements involved are far from simple and can be daunting for prospective residents and their families. Unlike a standard property purchase or a typical rental tenancy, retirement village contracts are highly specialised legal documents. Understanding them fully is crucial to protecting your financial future. At Hammond Nguyen Turnbull, we believe in empowering our clients with clear information. This guide will demystify the contracts used in NSW retirement villages so you can make your decision with confidence. It's Not a Standard Lease: The Unique Nature of Village Contracts When you move into a retirement village, you are typically not buying the property in the traditional sense. Instead, you are paying for the right to live in a specific unit and use the common facilities. In NSW, this right is usually granted through one of two main structures under the Retirement Villages Act 1999 (NSW) : Long-Term Leasehold: This is the most common model. You enter into a long-term lease with the village operator, often for 99 years. You don't own the property, but you have a registered lease that gives you exclusive residency rights. Licence Agreement: A licence gives you the right to occupy a unit but offers less security than a lease, as it is a contractual right rather than a registered interest in the land. In either case, the contract you sign will be a complex document outlining your rights, obligations, and—most importantly—the costs. The Key Financial Components You MUST Understand The financial structure of retirement village contracts is unique. You must look beyond the initial entry price and understand the full lifecycle of costs: entry, ongoing, and, critically, exit. 1. The Ingoing Contribution (Entry Payment) This is the substantial lump sum you pay to the village operator to secure your right to live in the unit. It is often comparable to the price of similar properties in the area. It is crucial to remember that this is not a purchase price. You are not buying the unit; you are paying for the right to reside there under the terms of the contract. 2. Recurrent Charges (Ongoing Fees) These are the regular fees you pay, usually monthly or fortnightly, for the day-to-day operation and maintenance of the village. These fees, often called General Service Charges, cover expenses like: Maintenance of common gardens and facilities (e.g., community halls, pools). Staff salaries. Building insurance. Council and water rates for the village. These charges are payable for the entire duration of your residency. 3. The Departure Fee (Deferred Management Fee or DMF) This is the single most important and often misunderstood cost. The Departure Fee, or DMF, is a significant sum deducted by the operator from your ingoing contribution when you permanently leave the village. The DMF is the operator's main source of income. It covers their long-term investment in the village's capital infrastructure and provides their profit. It is typically calculated as a percentage of your entry payment for each year you live in the village, up to a specified maximum. Example Calculation: A common DMF structure might be "3% per year for the first 10 years, capped at a maximum of 30%." If your ingoing contribution was $700,000 and you leave after 10 or more years, the operator would deduct $210,000 (30% of $700,000) from the refund you or your estate receives. 4. Sharing of Capital Gains (or Losses) The contract must clearly state what happens if the value of your unit goes up (or down) while you live there. Some contracts allow you to share in a portion of any capital gains when you leave, while many others state that all capital gains belong to the operator. You must be clear on this, as it significantly impacts your final exit entitlement. 5. Other Exit Costs In addition to the DMF, you may also be liable for other costs upon leaving, such as fees for renovating the unit to prepare it for the next resident and marketing costs to help sell the unit. Your Legal Rights and the Need for Expert Advice Given the complexity and long-term financial implications, seeking legal advice is not just recommended—it is essential. The law provides some protections. For instance, the operator must give you a General Inquiry Document and a Disclosure Statement , which summarise the key terms and costs. You also have a statutory cooling-off period after signing the contract. However, these documents can be over 100 pages long and filled with complex legal and financial jargon. An experienced solicitor can: Thoroughly review the contract and disclosure statement. Clearly explain the financial impact of the DMF and other fees. Provide you with a projection of your estimated exit entitlement. Ensure the contract complies with the Retirement Villages Act . Give you and your family the peace of mind that comes from making a fully informed decision. Make Your Next Chapter a Secure One Choosing a retirement village is a decision about your lifestyle and your financial future. The right contract can lead to a wonderful and secure chapter of your life, but the wrong one can have devastating financial consequences. Before you sign any documents, ensure you understand every clause and every cost. The team at Hammond Nguyen Turnbull has extensive experience in reviewing retirement village contracts. We can help you navigate the complexities and ensure your rights are protected. Contact us today for a confidential consultation to review your retirement village contract and secure the clarity you deserve for your future.

Welcome back to our series on the Security of Payment Act (SOPA)! In our previous posts, we laid the groundwork by discussing the purpose of SOPA and the initial steps of making a payment claim and responding with a payment schedule. Today, we delve into the heart of SOPA's dispute resolution mechanism: the adjudication process. The beauty of SOPA lies in its swift and efficient approach to resolving payment disputes in the construction industry. Unlike lengthy and costly court litigation, adjudication offers a fast-track pathway to a binding decision, typically within a matter of weeks. This is crucial for maintaining cash flow within projects and preventing financial distress for contractors and subcontractors. So, how does the adjudication process unfold under SOPA? 1. Applying for Adjudication If a claimant (the party who submitted the payment claim) is dissatisfied with a payment schedule, or if no payment schedule was provided and the payment remains unpaid, they can initiate the adjudication process. This involves lodging an adjudication application with an Authorised Nominating Authority (ANA). Strict Timeframes: This is a critical point! SOPA imposes strict timeframes for lodging an adjudication application. These vary slightly between states and territories, but generally, there are specific windows depending on whether a payment schedule was received, and if so, how much was paid. Missing these deadlines can be fatal to your application, so professional legal advice is highly recommended at this stage. The Application: The application itself is a formal document that must be in writing, identify the relevant payment claim and payment schedule (if any), and include all supporting documentation and arguments that the claimant wishes the adjudicator to consider. This usually involves detailed legal submissions and evidence. 2. Appointment of the Adjudicator Once the adjudication application is lodged with an ANA, the ANA's role is to appoint an adjudicator. Adjudicators are independent, qualified professionals, often with a background in construction law or related fields, and possess specialised knowledge of SOPA. The ANA typically notifies both parties of the adjudicator's acceptance of the appointment within a few business days. 3. The Adjudication Response Upon receiving a copy of the adjudication application, the respondent (the party who received the payment claim) has a limited timeframe to prepare and serve an adjudication response on both the adjudicator and the claimant. Timeliness is Key: Similar to the application, strict deadlines apply to the adjudication response. Content of the Response: The response must address the arguments and evidence presented in the adjudication application and outline the respondent's reasons for withholding payment or for the amount scheduled. Crucially, a respondent can generally only raise reasons for withholding payment that were already included in their original payment schedule. This reinforces the importance of a comprehensive payment schedule from the outset. 4. The Adjudicator's Determination The adjudicator's primary role is to impartially assess the payment claim, the payment schedule (if any), the adjudication application, and the adjudication response. They may also request further submissions from the parties or conduct inspections. Focus on the Contract and the Act: The adjudicator's determination is based on the terms of the construction contract and the provisions of the relevant SOPA legislation. They are not conducting a full re-hearing of the entire contract, but rather focusing on the disputed progress payment. Binding Decision: The adjudicator must make a determination within a short, prescribed timeframe (typically 10-15 business days). This determination outlines the amount (if any) that the respondent must pay to the claimant, and the date by which that payment is due. While not a final determination of all contractual rights, the adjudicator's decision is binding on the parties for the purposes of immediate payment. 5. What Happens Next? If the adjudicator determines that an amount is payable, the respondent is obligated to pay that amount by the specified due date. If they fail to do so, the claimant has further avenues for enforcement, which we will explore in detail in the next part of our series. These can include obtaining an adjudication certificate, which can then be registered as a judgment in court, allowing for traditional debt recovery mechanisms. Key Takeaways for Adjudication Time is of the essence: Strict statutory timeframes apply at every stage of the adjudication process. Missing a deadline can have severe consequences. Documentation is paramount: Thorough and accurate documentation of all works, communications, claims, and responses is crucial for a successful adjudication. Independent expertise: Adjudication provides a swift and expert assessment of payment disputes by an impartial third party. Binding for immediate payment: The adjudicator's determination creates an immediate obligation to pay the determined amount, even if the underlying contractual dispute continues. Understanding the adjudication process is vital for anyone involved in the construction industry. It empowers parties to quickly resolve payment disputes and maintain healthy cash flow. In our next blog post, Part 5 of this series, we will delve into the common issues and mistakes of SOPA. Stay tuned!

Australia's no-fault divorce system has significantly simplified the separation process for couples. As family lawyers, we’ve witnessed the benefits of this system, which removes the need to assign blame or prove wrongdoing, reducing conflict and animosity between parties. The sole ground for divorce in Australia is the irretrievable breakdown of the marriage, evidenced by a 12-month separation period. This means that couples no longer need to cite specific reasons for the breakdown, such as adultery or cruelty, as was required under the previous fault-based system. This shift has made divorce more accessible and less adversarial, allowing couples to focus on resolving their issues and moving forward with their lives. It also aligns with the modern reality that marriages can break down for a variety of reasons, not all of which involve fault or blame. From a legal perspective, the no-fault system has streamlined the divorce process, reducing the need for lengthy court battles and costly litigation. It has also encouraged couples to consider alternative dispute resolution options, such as mediation and collaborative law, which can be more amicable and cost-effective.  While the no-fault system has its critics, we believe it has been a positive development in Australian family law. By removing the focus on blame and promoting a more conciliatory approach to divorce, it has helped many couples achieve a less stressful and more dignified separation.

Buying a property is one of the most significant financial decisions you'll ever make. For many, the allure of a brand-new home, customised to their tastes and often available at a competitive price, makes buying "off-the-plan" an attractive option. This means purchasing a property, typically an apartment or townhouse, before it has been built. While buying off-the-plan can be a rewarding path to homeownership or investment, it presents a unique set of challenges and risks that differ significantly from purchasing an existing property. At Hammond Nguyen Turnbull, our experienced property law team is here to help you navigate this complex process, ensuring your interests are protected every step of the way. The Unique Landscape of Off-the-Plan Purchases When you buy off-the-plan, you are entering into a contract based on promises, plans, and artistic impressions. The physical property does not yet exist. This creates potential uncertainties that require careful legal navigation. 1. The Contract for Sale: More Than Just the Fine Print The contract for an off-the-plan property is often a lengthy and complex document drafted heavily in favour of the developer. It will contain clauses that you won't find in a standard property contract, covering aspects like: Finishes and Fixtures: The contract will specify the quality of finishes, appliances, and fittings. However, it may also give the developer the right to substitute these with items of a similar quality. It's crucial to understand the degree of flexibility the developer has. Variations to the Plan: Developers often need to make minor changes to the building plans during construction. The contract will outline the extent of permissible variations. We can help you understand what constitutes a minor change versus a significant one that could negatively impact your property's value or usability. Defects Liability Period: This is the period after settlement during which the builder is responsible for fixing any defects. Understanding the length of this period and the process for reporting issues is vital. 2. The Challenge of Developer Delays Construction projects are notorious for delays. From inclement weather and supply chain issues to council approval hold-ups, numerous factors can push back the completion date of your new home. These delays can have significant consequences for you, including: Extended uncertainty about your living situation. Financial implications , such as needing to find alternative accommodation for longer than anticipated. Financing issues , as a pre-approval from your lender may expire before the property is ready. 3. Understanding the "Sunset Clause" Perhaps the most talked-about risk in off-the-plan contracts is the "sunset clause." This clause specifies a date—the "sunset date"—by which the developer must complete the project and register the strata plan. If the project is not completed by this date, either party (you or the developer) has the right to rescind (cancel) the contract. While this sounds like a safety net for the buyer, it can sometimes be used by developers to their advantage. In a rising property market, a developer might intentionally delay a project to trigger the sunset clause, cancel the existing contracts, and then re-sell the properties at a higher price. Recent legislative changes in New South Wales have provided greater protection for buyers by requiring the developer to obtain the purchaser's consent or an order from the Supreme Court to rescind a contract using a sunset clause. However, it remains a critical part of the contract that requires expert legal review. How Hammond Nguyen Turnbull Can Protect You Navigating the complexities of an off-the-plan purchase requires a proactive legal strategy. Our role is to act as your advocate, ensuring you enter the agreement with your eyes wide open and your interests protected. Here's how we help: Thorough Contract Review: We meticulously analyse every clause of the proposed contract, explaining the terms in plain English. We identify unfavourable conditions and advise on potential risks. Negotiating on Your Behalf: We can negotiate with the developer's solicitors to amend certain clauses, seeking to cap potential variations, strengthen your rights regarding defects, and ensure the sunset clause is fair. Advising on Finance: We ensure you understand the timeline and how it relates to your mortgage pre-approval, advising you to maintain open communication with your lender or broker throughout the construction period. Guiding You to Settlement: From the initial contract signing to the final pre-settlement inspection and handover, we manage the entire conveyancing process, ensuring a smooth and legally sound transaction. Your Foundation for a Secure Purchase Buying off-the-plan can be a fantastic way to enter the property market or secure a modern investment. The key is to mitigate the inherent risks with expert legal advice. Don't let the excitement of a new build overshadow the need for due diligence. If you are considering buying a property off-the-plan, contact the property law experts at Hammond Nguyen Turnbull today. Let us lay the legal foundation for your future home.

Welcome back to our series on navigating the Security of Payment Act (SOPA). In Part 1, we covered the purpose of the Act, and in Part 2, we detailed how a contractor initiates the process by serving a valid Payment Claim. Once that claim lands on your desk, the clock starts ticking. The Act places strict obligations on the recipient (the respondent) to reply in a specific way and within a very tight timeframe. Your response, known as a Payment Schedule, is just as critical as the initial claim. Failing to serve a valid Payment Schedule in time can have severe and immediate financial consequences, effectively leaving you with no grounds to dispute the amount claimed. What is a Payment Schedule? A Payment Schedule is the formal, written response to a Payment Claim. It is your one and only opportunity to state your position on the amount claimed. You cannot simply ignore a claim or pick up the phone to dispute it. Under SOPA, your formal written response is what matters. A valid Payment Schedule must do two key things: It must identify the Payment Claim to which it relates. It must state the amount of payment, if any, that you propose to make. This is called the "scheduled amount." If the scheduled amount is less than the amount claimed in the Payment Claim, the Payment Schedule must also detail the reasons why. The Golden Rule: State All Your Reasons for Withholding Payment This is the most critical aspect of preparing a Payment Schedule. If you intend to pay less than the full amount claimed, you must clearly and comprehensively explain why. For each item you are disputing, you must state your reasons for doing so. For example, you might withhold payment because: The work is defective and requires rectification. The work has not been completed. The claim includes variations that were not approved in writing. The work was not calculated in accordance with the rates in the contract. Why is this so important? Because if the matter proceeds to adjudication, you are generally locked into the reasons you provided in your Payment Schedule. You cannot introduce new arguments or reasons for non-payment later in the process. A vague response like "work is incomplete" or "disputed variations" will not be sufficient. You must provide specifics. Failing to do so will hamstring your defence and may force an adjudicator to disregard your arguments entirely. The Clock is Ticking: Strict Timeframes for a Response This is where the real teeth of the Act are found. Upon receiving a valid Payment Claim, you have a strict deadline to serve your Payment Schedule on the claimant. The deadline is the earlier of: The time required by the construction contract, or 10 business days after the Payment Claim was served. "Business days" means any day other than a Saturday, Sunday, a public holiday, or the period between Christmas and New Year (22-10 January). This 10-day deadline is absolute. There are no extensions. The consequences of failing to serve a Payment Schedule within this timeframe are severe. The Dire Consequences of Failing to Respond in Time If you fail to provide a Payment Schedule within the 10-business-day limit, you become liable to pay the entire amount claimed in the Payment Claim. The claimant can then proceed down one of two paths: Seek Adjudication: The claimant can apply for adjudication, and because you did not provide any reasons for withholding payment, an adjudicator will almost certainly award the full claimed amount in the claimant's favour. Court Action: The claimant can go to court to recover the claimed amount as a debt due. In this scenario, the court is not concerned with the merits of the claim (e.g., whether the work was defective). The only issue is that a valid Payment Claim was served and you failed to respond with a Payment Schedule in time. You will be prevented from raising any cross-claims or defences related to the construction contract. In short, silence is treated as acceptance. Failing to respond is the biggest mistake a respondent can make, and it almost always leads to an obligation to pay 100% of the amount claimed.

Access to justice is a fundamental right, and in the realm of family law, where emotions run high and legal complexities abound, it's crucial that individuals have the support they need to navigate the system. Legal Aid plays a vital role in providing legal assistance to those who cannot afford private representation, ensuring that everyone has a fair chance to be heard. As family lawyers, we often refer clients to Legal Aid when they are facing financial hardship or are unable to access legal services due to other barriers. Legal Aid offers a range of services, including legal advice, representation in court, and assistance with preparing documents. They also provide information and resources to help people understand their rights and obligations under family law. However, it's important to note that Legal Aid has limited resources and strict eligibility criteria. Not everyone who applies will be granted assistance. Factors such as income, assets, and the merits of the case are all taken into consideration. If you're considering applying for Legal Aid, it's important to seek advice from a lawyer or community legal center. They can help you understand the eligibility criteria, assist you with the application process, and refer you to other support services if needed. While Legal Aid can be a valuable resource, it's not the only option for accessing legal support. Community legal centers, pro bono schemes, and private lawyers who offer flexible fee arrangements can also provide assistance. By exploring all available options, individuals can find the support they need to navigate the family law system and achieve a just outcome.

Embarking on a property transaction is one of the most significant financial decisions you'll ever make. Whether you're a first-time home buyer filled with excitement or a seasoned investor expanding your portfolio, the process is both thrilling and complex. A critical step in this journey is engaging a professional to handle the legal transfer of ownership. This is where you face a key choice: Should you hire a licensed conveyancer or a qualified property lawyer? While both can facilitate the transfer of title, their qualifications and the scope of services they can provide are vastly different. Understanding this difference is crucial to protecting your investment and ensuring a smooth, secure transaction. What is a Licensed Conveyancer? A licensed conveyancer is a professional who is specifically trained and licensed to handle the transactional aspects of transferring property from one person to another. They are specialists in the conveyancing process . Their duties typically include: Preparing and reviewing the Contract for Sale. Conducting property searches (title, council rates, zoning, etc.). Liaising with your bank or financial institution. Calculating settlement figures (adjustments for rates and taxes). Coordinating and attending the final settlement. Conveyancers are highly competent at managing a standard, straightforward property transaction. However, their expertise is limited to the conveyancing process itself. What is a Property Lawyer? A property lawyer is a fully qualified legal professional who holds a Bachelor of Laws degree and is admitted to practise law by the Supreme Court. While they perform all the same tasks as a conveyancer, their expertise extends far beyond the standard transaction. A property lawyer can do everything a conveyancer can, but a conveyancer cannot do everything a lawyer can. The Crucial Difference: The Power of Legal Advice The single most important distinction lies in the ability to provide legal advice. A conveyancer's licence is for the process of transferring property. If a complex legal issue arises during your transaction, a conveyancer is legally prohibited from giving you legal advice . They must refer you to a lawyer, which can cause delays, increase costs, and add stress at a critical time. A property lawyer, on the other hand, is equipped to handle these complexities from the very beginning. They view your property transaction through a wider legal lens, proactively identifying and mitigating risks before they escalate. Consider these common scenarios where a lawyer’s expertise becomes invaluable: Complex Contract Terms: The other party wants to add a non-standard clause, or you need a specific condition added to protect your interests (e.g., "subject to council approval" for a renovation). A lawyer can draft and negotiate these clauses with legal precision. Disputes and Breaches: What if the seller fails to disclose a significant defect, or there’s a dispute over the property boundaries? A lawyer can issue legal notices, negotiate on your behalf, and represent you in court if necessary. Ownership Structure: Are you buying with a partner, through a trust, or for a self-managed super fund (SMSF)? A lawyer can advise on the most effective and protective ownership structure for your specific circumstances. Estate or Family Law Issues: If the property is part of a deceased estate or a divorce settlement, the transaction is immediately more complex. A property lawyer can navigate the intricate legal requirements seamlessly. Isn't a Lawyer More Expensive? This is a common misconception. While the initial quote from a lawyer might sometimes be slightly higher than a conveyancer's, the fees are often very competitive. More importantly, you should view the fee not as a cost, but as an investment in security and peace of mind. The potential cost of rectifying a legal issue that a conveyancer couldn't handle will far outweigh the modest initial difference in fees. With a lawyer, you are paying for comprehensive protection for what is likely your largest asset. The Verdict: Choose Comprehensive Protection For a straightforward, uncomplicated transaction where you are certain no issues will arise, a conveyancer may be sufficient. However, property transactions are rarely that simple. Unexpected issues can and do appear. By choosing a property lawyer from the outset, you are ensuring that no matter what complexity arises, you have an expert in your corner who can handle it immediately and effectively. You get a professional who manages both the standard process and any potential legal hurdles.  Your home or investment property is too valuable to leave to chance. Protect your investment with the comprehensive expertise and security that only a qualified property lawyer can provide.

Welcome back to our series on the Security of Payment Act (SOPA). In our first instalment, we introduced the core purpose of SOPA: to ensure cash flows through the construction industry by establishing a fast-tracked system for payment. Now, we move from the "why" to the "how." The entire SOPA process is triggered by a single, critical document: the Payment Claim . This is not just another invoice. It is a formal request for payment that carries significant legal weight under the Act. Getting this document right is the essential first step to unlocking your statutory right to payment and accessing the rapid adjudication process if a dispute arises. What is a Payment Claim? A payment claim is a statutory demand for a progress payment for construction work carried out or for related goods and services supplied. It serves as the foundation for every subsequent step under SOPA. If the payment claim is invalid, you will not be able to rely on the Act to recover payment. While it can look like a regular invoice, a valid payment claim under the Building and Construction Industry Security of Payment Act 1999 (NSW) must meet three mandatory requirements: It must identify the construction work (or related goods and services) to which the progress payment relates. It must indicate the amount of the progress payment that the claimant claims to be due. It must state that it is a payment claim made under the Building and Construction Industry Security of Payment Act 1999. This last point is absolutely crucial and is often where claimants make a mistake. The recipient must be put on notice that this is not just an ordinary invoice, but a formal claim under the Act that carries specific legal obligations. This is often referred to as the "magic words." A simple statement such as, “This is a payment claim made under the Building and Construction Industry Security of Payment Act 1999 (NSW),” prominently displayed on the document, is sufficient. The Crucial Concept of the "Reference Date" You cannot simply issue a payment claim whenever you feel like it. A claim can only be made on and from a specific "reference date." The reference date is a point in time that triggers your right to make a claim. So, how is the reference date determined? If your contract specifies dates for making progress claims: These dates are your reference dates. For example, if the contract states you can claim on the 25th day of each month, then the 25th of each month is your reference date. If your contract does not specify a date: The reference date will be the last day of the month in which you first carried out the work and the last day of each subsequent month. A payment claim cannot be served before the reference date has arisen. Understanding your reference dates is fundamental, as issuing a claim prematurely can render it invalid. A contract will typically only allow for one payment claim per reference date. Timing and Service of a Payment Claim Once a reference date has passed, you must serve your payment claim within the period specified in the contract or within 12 months after the construction work to which the claim relates was last carried out, whichever is the later. Serving the claim correctly is just as important as drafting it correctly. The claim must be served on the person or company who, under the contract, is liable to make the payment. This can be done by: Delivering it in person. Lodging it during normal office hours at their ordinary place of business. Sending it by post to their ordinary place of business. Sending it via fax or email to a number or address specified in the contract for service of notices. It is always best practice to serve the claim in a way that provides you with proof of delivery, such as by email with a read receipt or by registered post. Why Getting the Payment Claim Right Matters A valid payment claim puts the recipient on the clock. It triggers a strict, non-negotiable timeframe for them to either pay the claimed amount in full or to respond with a "Payment Schedule" detailing why they are paying less. If your payment claim is invalid—perhaps because it lacks the "magic words" or was served before a reference date—the recipient has no obligation to respond under the Act. This means you lose your right to pursue the rapid adjudication process and are pushed back into the slow and expensive traditional routes of recovering payment. The payment claim is your key to the entire SOPA regime. Taking the time to ensure it is drafted and served correctly is the most important investment you can make in protecting your cash flow. Coming Up in Part 3: The other side of the coin. What happens once a payment claim is received? We will break down the requirements for a Payment Schedule and the serious consequences of failing to provide one in time.