For years, the line between casual and permanent employment in Australia has been a complex and often contentious issue. Recent legislative changes have redrawn this line, introducing a new "employee choice" framework that every employer must understand and implement. These changes are not just administrative tweaks; they fundamentally alter the rights and obligations of both employers and casual employees, particularly concerning an employee's ability to choose to become a permanent employee. The Old vs. The New: A Shift in Power Previously, the pathway from casual to permanent employment was primarily driven by the employer. A casual employee who had worked a regular pattern of hours for at least 12 months had to be offered the option to convert to permanent employment by their employer. Now, the power has shifted. The new laws, effective from late 2024/early 2025 , introduce a new definition of "casual employee" and empower the employee to initiate the conversion process. Key Change 1: The New Definition of a Casual Employee The first critical change is the new definition of a casual employee. A person is a casual employee only if: There is an absence of a firm advance commitment to continuing and indefinite work. The employee is entitled to a casual loading or a specific rate of pay for casuals. This definition focuses on the practical reality of the working relationship, rather than just the terms of the employment contract at the start. Key Change 2: Employee Choice - How Casuals Can Request to Become Permanent The most significant change is the introduction of "employee choice." Here’s how it works: Eligibility: A casual employee can request to become a permanent employee if they have been employed for at least six months (or 12 months for small business employers). Regular Pattern of Hours: The employee must have worked a regular pattern of hours for the last six months. The Request: The employee makes a written request to their employer. Employer's Obligation: The employer must grant the request unless there are "fair and reasonable operational grounds" to refuse it. What are "Fair and Reasonable Operational Grounds" to Refuse a Request? An employer isn't obligated to say yes automatically. Legitimate reasons for refusal include: The employee's position will not exist in the next 12 months. The employee's hours of work will be significantly reduced. There will be a significant change in the days or times of work that the employee cannot accommodate. Granting the request would not comply with a recruitment or selection process required by law. It's crucial to note that simply preferring a flexible workforce is not a valid reason for refusal. Employers must have solid business grounds to deny an employee's choice. What Your Business Needs to Do Now Review Your Workforce: Identify all employees currently engaged as casuals. Assess Employment Patterns: Determine which of your casual employees have worked a regular pattern of hours for six months or more. Update Your Contracts: Ensure your casual employment agreements are updated to reflect the new definition and the employee choice provisions. Provide Information: You must provide all new casual employees with the Casual Employment Information Statement (CEIS) before, or as soon as possible after, they start work. Prepare for Requests: Have a clear, fair, and documented process for receiving and responding to employee requests to convert to permanent employment. This includes understanding the valid grounds for refusal. The Bottom Line: Proactive Management is Key These changes are designed to provide greater security and certainty for long-term casual employees. For employers, they demand a more proactive and transparent approach to managing your workforce. Failing to comply with these new obligations can lead to disputes and penalties. It is essential to understand your responsibilities and ensure your practices are up-to-date.  If you are unsure about your obligations or need assistance navigating these new casual employment laws, contact us for expert legal advice.

As family lawyers, we often advise clients on the interplay between family law and estate planning. A common misconception is that a Will automatically overrides family law provisions in the event of a separation or divorce. However, this is not always the case, and failing to update your estate plan in light of family law changes can lead to unintended consequences and disputes among beneficiaries. A divorce, for instance, automatically revokes any provisions in a Will that benefit a former spouse, unless the Will expressly states otherwise. This means that if you haven't updated your Will after a divorce, your former spouse may still be entitled to inherit under the terms of your original Will. Similarly, separation doesn't automatically revoke such provisions, and your estranged spouse could still be a beneficiary. Moreover, family law proceedings can result in property settlements and court orders that may conflict with the terms of your Will. For example, a property settlement may award a specific asset to one party, while your Will may leave that same asset to someone else. In such cases, the family law orders will generally prevail, potentially overriding your testamentary intentions. We recommend that clients review and update their estate plans regularly, especially after significant life events such as marriage, divorce, or the birth of a child. This ensures that your Will accurately reflects your current wishes and avoids potential conflicts with family law provisions. By seeking legal advice and taking a proactive approach to estate planning, you can protect your assets, provide for your loved ones, and minimize the risk of disputes after your passing. Remember, a well-drafted Will that aligns with family law principles can provide peace of mind and ensure your legacy is distributed according to your wishes.  At Hammond Nguyen Turnbull, the family team and wills and estates team work closely together in order to achieve your results from both aspects.

Buying or selling a property is one of the biggest financial decisions you’ll ever make. Amid the excitement of finding your dream home or securing a great sale price, the various costs involved can be a source of anxiety. One of the most common questions we hear at Hammond Nguyen Turnbull is: "How much does conveyancing actually cost?" While it’s tempting to shop around for the cheapest quote, it's crucial to understand what you're paying for. A low number can often hide additional costs or, worse, reflect a lower standard of service that puts your transaction at risk. This guide breaks down the costs of conveyancing in New South Wales to give you clarity and confidence. What is Conveyancing? A Quick Refresher First, let's recap. Conveyancing is the legal process of transferring ownership of a property from one person to another. It’s a critical service managed by a solicitor or licensed conveyancer that ensures the sale is legally binding, all required checks are completed, and your rights are protected from contract signing through to settlement day. This essential legal work is what you are paying for. The Two Main Parts of Your Conveyancing Invoice To understand the total cost, you need to know that a conveyancing invoice is typically made up of two distinct parts: the professional fee and the disbursements. 1. Professional Fees (The 'Service' Cost) This is the amount your solicitor or conveyancer charges for their expertise, time, and the legal work required to complete your transaction. This fee covers crucial tasks such as: Reviewing and providing legal advice on the Contract for Sale. Negotiating contract terms and amendments to protect your interests. Liaising with your bank, the other party’s solicitor, and real estate agents. Conducting all necessary property searches and enquiries. Managing the electronic settlement process through platforms like PEXA. Ensuring the legal transfer of title is completed correctly. At Hammond Nguyen Turnbull, we generally operate on a fixed-fee basis for our professional fees. We have a mechanism where we charge an hourly fee, if the transaction is more complex than normal. We will raise this with you before any charges are going to be incurred. This means you know exactly what our service will cost from the very beginning, providing you with certainty and peace of mind. There are no surprise hourly bills. 2. Disbursements (The 'Out-of-Pocket' Costs) Disbursements are the third-party costs that your solicitor pays on your behalf to gather the information and certificates legally required for the property transfer. These costs are fixed by government bodies or third-party providers and are passed on to you at cost. The disbursements you need to pay will differ depending on whether you are buying or selling. Typical Disbursements for a BUYER Title Search: To confirm the seller owns the property and to check for any dealings on the title. Council Certificate (Section 10.7): Shows zoning information and whether the property is affected by any council notices. Land Tax Search: To confirm if there is any outstanding land tax owed on the property. Building & Pest Reports: While optional, these are highly recommended to uncover any structural issues or pest infestations. Strata Report (for apartments/townhouses): Essential for checking the financial health of the owners' corporation, by-laws, and any upcoming special levies. Rates Certificates: This confirms what the council, water and strata rates are for the period, what needs to be adjusted and paid for on settlement. PEXA Settlement Fee: A fee charged by the electronic settlement platform. Final Search & Registration Fees: Final checks before settlement and the fee to legally register you as the new owner on the title. Other property certificates: Certain properties may require further searches to check if it is being acquired, if there is a tree preservation order etc. Typical Disbursements for a SELLER A seller is legally required to provide a complete Contract for Sale, which must include several key documents. The disbursements cover the cost of obtaining these, including the Title Search, Deposited Plan, Council Certificate, and Water/Sewer Diagram. If you have a mortgage, a mortgage discharge registration fee will also apply. So, What's the Total Cost? As of mid-2025, for a standard residential property transaction in NSW, you can typically expect the total conveyancing cost to fall within the range of $2,000.00 to $4,000.00 (including GST) plus disbursements. Be wary of quotes that seem too good to be true. An unusually low fee may mean you are dealing with a high-volume, low-service firm where your file won’t get the attention it deserves, or you may find hidden costs added to your final bill. The final cost will always depend on the property and the complexity of the transaction. Also be aware that there is a significant cost difference between licensed conveyancers and solicitors. See our previou s blog post about the difference between the two. Why Fixed-Fee Conveyancing Provides Peace of Mind The property journey has enough uncertainty without worrying about escalating legal bills. Choosing a firm that offers a fixed professional fee ensures transparency. You can budget effectively, knowing that the fee for the legal service won't change, regardless of how many phone calls or emails are needed to get the job done right. At Hammond Nguyen Turnbull, we provide you with a comprehensive quote upfront that clearly separates our fixed professional fee from an estimate of the standard disbursements required for your property. Don't risk your biggest investment with "cheap" conveyancing. Invest in expertise and peace of mind.

The thrill of the race, the bond between human and horse, the roar of the crowd – harness racing is a sport steeped in tradition and excitement. But underpinning the integrity of this spectacle is a robust system of drug testing, designed to ensure a level playing field for all participants, both equine and human. For punters, owners, trainers, and drivers alike, understanding the rules and regulations surrounding drug testing is crucial for maintaining confidence in the sport. So, let's delve into the key aspects of drug testing in harness racing. Testing the Stars of the Show: Equine Drug Testing The welfare of the horses is paramount, and ensuring they compete free from prohibited substances is a cornerstone of fair racing. Harness Racing implements a comprehensive drug testing program for horses, pre-race, post-race, and out of competition. What substances are prohibited? The list of prohibited substances is extensive and regularly updated, aligning with national and international standards. Generally, it includes: 🐴 Stimulants: Designed to artificially enhance performance. 🐴 Depressants: Substances that could mask pain or affect a horse's natural abilities. 🐴 Anabolic Steroids: Promoting muscle growth and strength unnaturally. 🐴 Pain Masking Agents: Preventing the detection of underlying injuries. 🐴 Certain medications: Unless administered under strict veterinary supervision and within specified withdrawal periods. When and how are horses tested? 🐴 Pre-Race Testing: In some instances, horses may be subject to pre-race testing, on a random basis or based on the race they are competing in. This usually involves collecting a urine or blood sample before the horse competes, and having it tested either prior to the race or after. 🐴 Post-Race Testing: This is the most common form of testing. After a race, designated horses (often winners, placegetters, or randomly selected participants) are taken to a secure sampling area. Harness Racing officials oversee the collection of urine and/or blood samples, ensuring the integrity of the process and proper identification of the horse. 🐴 Out-of-Competition Testing: To further deter the use of prohibited substances, Harness Racing can conduct out-of-competition testing at training facilities or other locations. This helps monitor horses throughout their preparation and ensures compliance beyond race days. The Sampling and Analysis Process (and the Importance of Scrutiny) The collection of samples is a controlled process, with strict protocols to prevent tampering or misidentification. Samples are then sent to accredited laboratories for analysis using sophisticated techniques. However, even with stringent procedures, the possibility of errors, albeit rare, cannot be entirely discounted. In the event of a positive test, it is crucial for trainers and owners to have the right to a thorough investigation. This includes access to the data packs generated by the testing laboratory, which contain detailed information about the analytical process and the levels of the detected substance. Scrutinising these data packs and the reported levels is vital. For instance, a very low level of a substance might warrant further investigation into potential environmental contamination or inadvertent exposure, rather than intentional administration for performance enhancement. Consequences of a Positive Equine Test A positive test can have severe repercussions for trainers, owners, and the horse itself. Penalties can include: 🐴 Disqualification: The horse's result in the race is voided. 🐴 Fines: Significant financial penalties for trainers and owners. 🐴 Suspensions: Temporary or permanent bans from participating in harness racing for trainers and owners. 🐴 Horse Restrictions: The horse may be stood down from racing for a specified period. Harness Racing operates under an absolute liability principle, meaning the trainer is generally held responsible for any prohibited substance found in their horse, regardless of how it entered the horse's system. This absolute liability underscores the importance of the right to investigate potential errors in the testing process by examining the data and levels reported. Ensuring Fair Play for Humans: Driver Drug Testing The integrity of harness racing also extends to the drivers who guide these magnificent animals. Harness Racing has regulations in place to ensure drivers are not competing under the influence of drugs or alcohol that could impair their judgment and potentially endanger themselves, other participants, and the horses. What substances are prohibited for drivers? The prohibited substances for drivers generally align with those banned in other professional sporting codes and include: 🐴 Illicit drugs: Such as marijuana, cocaine, and amphetamines. 🐴 Performance-enhancing drugs: Substances designed to give a driver an unfair advantage. 🐴 Alcohol and other certain prescription medications: If they could impair a driver's ability to drive a sulky safely. Drivers are typically required to declare any medications they are taking. When and how are drivers tested? 🐴 Race Day Testing: Drivers can be randomly selected for drug and alcohol testing on race days, either before or after their engagements. Breathalyzer tests are commonly used for alcohol, while saliva or urine samples may be collected for drug testing. 🐴 Out-of-Competition Testing: Similar to equine testing, drivers may also be subject to out-of-competition testing. Consequences of a Positive Driver Test A positive drug or alcohol test for a driver can result in significant penalties, including: 🐴 Suspensions: Temporary or permanent bans from driving in harness races. 🐴 Fines: Financial penalties. 🐴 Loss of License: Potential revocation or suspension of their driver's license.

Welcome back to the final instalment of our comprehensive series on the Security of Payment Act (SOPA). Throughout this series, we've explored the foundational principles of SOPA, the critical role of payment claims and schedules, the intricate adjudication process, and the common pitfalls to avoid. Now, we arrive at the crucial final step: what happens when an adjudicator has made a determination, but the losing party fails to pay? The power of SOPA lies not just in its ability to provide quick determinations, but in the robust mechanisms it offers for enforcing those decisions. An adjudicator's determination is not merely an opinion; it's a binding decision that carries the weight of the law. However, despite this, some respondents may still choose not to comply. This is where the enforcement provisions of SOPA come into play, providing successful claimants with clear pathways to recover the money they are owed. Let's delve into the steps and avenues available for enforcing an adjudicator's determination. Obtaining an Adjudication Certificate The first critical step after receiving a favourable adjudication determination is to obtain an Adjudication Certificate. This certificate, issued by the Authorised Nominating Authority (ANA) that appointed the adjudicator, officially records the adjudicated amount and confirms the determination. It's essentially the formal document you'll need to proceed with enforcement. Registering the Determination as a Court Judgment Once you have the Adjudication Certificate, the most common and effective enforcement pathway is to register it as a judgment debt in the appropriate court. This transforms the adjudicator's determination into a formal court order, allowing you to use the standard debt recovery procedures available through the court system. The jurisdiction of the court will depend on the amount of the adjudicated debt: Local Court: For smaller amounts (typically up to $100,000, or $120,000 in some limited circumstances, depending on the state/territory). District Court: For intermediate amounts (e.g., between $100,000 and $750,000). Supreme Court: For larger sums (exceeding $750,000). To register the determination, you will typically need to file the Adjudication Certificate along with an affidavit confirming that the adjudicated amount, or a portion thereof, remains unpaid. Crucially, at this stage, the respondent generally cannot dispute the existence of the debt or raise new offsetting claims that were not presented during the adjudication. This reinforces the "pay now, argue later" principle of SOPA. Avenues for Enforcement of a Court Judgment Once the adjudication determination is registered as a court judgment, you gain access to a range of powerful enforcement tools, similar to those available for any other civil judgment: Writ of Execution/Garnishee Order: This allows for the seizure and sale of the respondent's property (e.g., real estate, vehicles) to satisfy the debt. Alternatively, you can seek a garnishee order to redirect money owed to the respondent by a third party (e.g., bank accounts, or debts owed to them by other parties) directly to you. Statutory Demand: For corporate respondents, a common enforcement method is to serve a Statutory Demand under the Corporations Act. If the company fails to pay the debt (or apply to set aside the demand) within 21 days, it is presumed to be insolvent, which can lead to winding-up proceedings. This is a very serious consequence for a company. Suspension of Works: SOPA also grants the claimant the right to suspend work on the project if the adjudicated amount remains unpaid by the due date. Proper notice must be given, but this can be a powerful lever to encourage payment, as continued project delays can be extremely costly for the respondent. Lien over Unfixed Goods: In some jurisdictions, SOPA provides for a lien over unfixed plant or materials supplied by the claimant, allowing them to retain possession until the payment is made. Payment Withholding Request: In certain circumstances, a claimant can serve a payment withholding request on the principal contractor (the party above the respondent in the contractual chain), directing them to hold back money that would otherwise be due to the respondent to cover the adjudicated amount. Important Considerations for Enforcement Timeliness: Just like all other stages of SOPA, acting promptly is key when enforcing a determination. Delays can give the respondent more time to dissipate assets or implement strategies to avoid payment. Legal Advice: While the enforcement steps seem straightforward, navigating court procedures and choosing the most effective enforcement method often requires expert legal advice. A lawyer specialising in construction and SOPA can guide you through the process, ensuring compliance and maximising your chances of recovery. The "No Set-Off" Rule: The strength of SOPA enforcement lies in the limited grounds on which a respondent can challenge a registered judgment. Unless there was a jurisdictional error by the adjudicator (a very high bar), the courts generally will not revisit the merits of the dispute or allow the respondent to raise new claims to offset the adjudicated amount. Conclusion of Our SOPA Series The Security of Payment Act is a critical piece of legislation designed to maintain cash flow within the construction industry and prevent insolvency caused by payment disputes. From understanding payment claims to navigating adjudication and ultimately, enforcing determinations, each step of the SOPA process is designed for speed and efficiency. By diligently adhering to the Act's requirements and understanding the avenues available for enforcement, contractors and subcontractors can leverage SOPA as a powerful tool to secure their right to payment. While the process can be challenging, particularly when faced with non-compliance, the mechanisms for enforcing an adjudicator's determination are robust and ultimately aim to ensure that those who do the work get paid. We hope this series has provided you with a valuable understanding of the Security of Payment Act and empowered you to navigate its complexities with confidence.

Pets are often considered cherished family members, and their custody can become a contentious issue in divorce proceedings. While the law traditionally views pets as property, there's a growing recognition of the emotional bond between pets and their owners. As a lawyer, I navigate these sensitive cases with empathy and a focus on finding solutions that prioritise the pet's well-being. In Australia, pets are generally considered property and are subject to division in a property settlement. However, the court may consider factors such as who primarily cared for the pet, who has a stronger emotional bond, and what living arrangements would best suit the pet's needs. In some cases, parties may reach an agreement on pet custody through mediation or negotiation. This can involve shared care arrangements, visitation schedules, or even financial contributions towards the pet's care. If an agreement cannot be reached, the court may make a decision based on the evidence presented and the principles of property division. While the court's primary focus is on the legal ownership of the pet, they may also consider the emotional attachment and the pet's best interests.  Pet custody battles can be emotionally charged and legally complex. As family lawyers, we guide clients through the process, helping them understand their rights and options and advocating for their interests. By prioritising the pet's well-being and seeking creative solutions, we can often achieve outcomes that allow both parties to maintain a relationship with their beloved pet while minimizing conflict and distress.

Trying to buy a property in Sydney can feel like a full-time job. Endless weekends spent at open homes, the frustration of being outbid at auction, and the nagging fear of overpaying can leave even the most determined buyer feeling exhausted and demoralised. In this competitive landscape, you may have heard the term "buyer's agent" mentioned. But what exactly do they do? Are they just another expense, or are they the secret weapon you need to secure your dream home or investment property? As property law experts who handle the critical conveyancing stage of a purchase, we at Hammond Nguyen Turnbull see firsthand how different buyers navigate the market. This guide breaks down the role of a buyer's agent so you can decide if it's the right choice for you. What Exactly is a Buyer's Agent? Think of a traditional real estate agent. Their legal and financial duty is to the seller (the vendor). Their goal is to get the highest possible price for the property. A buyer's agent is the complete opposite. They are a licensed professional who works exclusively for the property buyer . Their sole focus is to find and secure the right property for their client at the best possible price and on the most favourable terms. They are your advocate and representative in the real estate market. What Does a Buyer's Agent Do? A full-service buyer's agent manages the entire purchase process from start to finish. While services can be tailored, a typical engagement includes: Defining Your Brief: They start with an in-depth consultation to understand your goals, budget, location preferences, and "must-haves." The Property Search: This is where they shine. Buyer's agents have extensive networks and often gain access to properties before they hit the open market. This includes off-market and pre-market listings that the general public never sees. Inspecting and Shortlisting: They do the legwork, inspecting dozens of properties on your behalf and providing you with a shortlist of the best options, complete with objective video tours and analysis. This saves you countless hours. Due Diligence: They conduct thorough research on the property. This involves assessing its true market value, identifying any potential issues, and coordinating with professionals to arrange building and pest inspections or review strata reports. Strategy and Negotiation: This is a key value proposition. They are expert negotiators. They will formulate a strategy to secure the property, whether through private treaty negotiation or by bidding for you at auction. Their ability to remove emotion and use data-driven tactics can save you tens of thousands of dollars. Overseeing the Settlement: Once a price is agreed upon, they work closely with your solicitor to ensure a smooth process all the way to settlement day. The Key Benefits: Why Hire a Buyer's Agent? So, is it worth the fee? For many buyers, the advantages are clear: Save Time and Reduce Stress: They handle the entire time-consuming search and inspection process. Gain Access to More Properties: Their off-market access gives you a significant advantage over other buyers. Remove Emotion from the Decision: They provide an objective, expert voice, preventing you from making costly emotional mistakes in the heat of the moment. Leverage Professional Expertise: You are hiring a professional negotiator and strategist whose job is to get you the best outcome. Often, the amount they save you on the purchase price can exceed their fee. How a Buyer's Agent Works with Your Conveyancing Solicitor It's important to understand that a buyer's agent and a conveyancing solicitor have distinct but complementary roles. They are two essential members of your property-buying team. The Buyer's Agent finds the property and negotiates the commercial terms (the price). The Conveyancing Solicitor (like the team at Hammond Nguyen Turnbull) handles the legal transfer of ownership and ensures your legal rights are protected and in writing. Once your buyer's agent has successfully secured a property, they will send the Contract for Sale to us. Our expert conveyancing team then takes over the critical legal due diligence. We review the contract to identify any risks, negotiate amendments to protect your interests, manage the exchange and settlement process, and ensure the title is transferred to you correctly and legally. Is a Buyer's Agent Right for You? Hiring a buyer's agent is a personal choice. It can be particularly valuable for: Time-poor professionals and families. First-home buyers who are overwhelmed by the process. Investors looking for specific types of properties and strong returns. People relocating to Sydney who are unfamiliar with the market. Whether you engage a buyer's agent or decide to search on your own, having an expert legal team ready to act is non-negotiable. A successful purchase depends on securing the property and ensuring the legal process is handled flawlessly. Once you have found your perfect property, the next step is crucial. Contact the experienced conveyancing team at Hammond Nguyen Turnbull to ensure your purchase is seamless, secure, and legally sound.

In an increasingly connected world, the lines between work and personal life have become blurred. The expectation of being "always on"—checking emails late at night or responding to messages on weekends—has contributed to burnout and negatively impacted employee well-being. Recognizing this, the Australian government introduced the "right to disconnect" as part of the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024. While this right has been in effect for larger businesses since August 2024, it is now extending to small businesses and their employees, starting on August 26, 2025. What is the Right to Disconnect? The right to disconnect empowers employees to refuse to monitor, read, or respond to contact from their employer or a third party outside of their normal working hours. This includes emails, phone calls, and text messages. The law provides a legal framework to protect employees from being penalised for reasonably refusing to engage with work-related communications after hours. It's important to note that this is not a blanket ban on out-of-hours contact. The law focuses on whether an employee's refusal to respond is "unreasonable." Factors considered in this determination include:  The reason for the contact: Is it an urgent matter or a genuine emergency? Compensation: Is the employee being paid to be on call or for working additional hours? Role and responsibility: Does the employee's role inherently require a certain level of after-hours availability? Disruption: How disruptive is the method of contact (e.g., a late-night phone call vs. a non-urgent email)? Personal circumstances: The employee's personal situation, such as caring responsibilities, can be a factor. Why This Matters for Small Businesses Small businesses are often the backbone of the economy, but they can face unique challenges with work-life boundaries. Employees may feel pressure to be constantly available, leading to increased stress and a higher risk of burnout. This new legislation provides a clear standard, encouraging a culture of respect for personal time. For small business owners, this is an opportunity to review and update workplace communication policies. It’s a chance to foster a healthier, more productive work environment by setting clear expectations and ensuring that after-hours contact is reserved for genuinely necessary situations. Contact us With the right to disconnect laws for small businesses taking effect on August 26, 2025, now is the time to get prepared. For employees: Understand your rights and feel empowered to set healthy boundaries. Open a dialogue with your manager about expectations for after-hours communication. For employers: Review your current communication practices and update policies to align with the new law. Communicate these changes clearly to your team and consider training for managers on how to navigate this new right. Ensuring your business is compliant not only protects you legally but also demonstrates a commitment to your team's well-being.

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!