NSW Security of Payment
The Building and Construction Industry Security of Payment Act 1999 (NSW) gives every subcontractor a statutory right to monthly progress payments that no contract can remove: s 34 voids any provision that excludes, modifies, or restricts the Act — or even attempts to deter you from using it. The contract you're asked to sign may pretend otherwise; the Act wins.
A payment claim on and from the last day of each named month (since the 2019 reforms removed reference-date games), including after termination. The respondent has 10 business days to serve a payment schedule; without one, it's liable for the full claimed amount, recoverable as a debt with contract defences barred. Subcontractors must be paid within 20 business days of a claim — clauses allowing later payment have no effect (s 11(8)).
Section 12 gives pay-when-paid provisions no effect, defined broadly: any clause making your payment or its timing contingent on the head contractor being paid, or on anything under another contract. Head contractors serving claims upstream must also attach a supporting statement declaring subcontractors have been paid — the Act polices the chain in both directions.
Payment terms longer than 20 business days (void), claim-form preconditions designed to invalidate claims, deeming clauses that shrink your response windows — the Supreme Court voided one under s 34 in 2025 (Sharvain Facades v Roberts Co) — and dispute-resolution preconditions that delay adjudication. Note what s 34 doesn't do: it isn't a blanket rule against EOT time bars, which generally stand in NSW if clearly drafted.
State on every claim that it's made under the Act, claim every month, diarise the 10-business-day schedule window, and adjudicate promptly when schedules don't come. Then review the contract for what the Act doesn't override — LD caps, retention terms, indemnities — because statute protects payment, not margin. A $19 review covers both halves.
Common questions
For subcontractors, payment is due no later than 20 business days after a payment claim is made (s 11(1B)); head contractors must be paid by principals within 15 business days. Any clause providing for later payment has no effect under s 11(8) — a '45 days end of month' term in a NSW subcontract is simply overridden. The contract can provide shorter terms, never longer.
The respondent becomes liable for the full claimed amount on the due date. You can recover it as a debt in court — where the respondent is barred from raising cross-claims or contract defences (s 15(4)) — or take it to adjudication. The 10-business-day schedule window (or shorter if the contract says so) is the respondent's only chance to dispute the valuation for that claim.
Not as a category. Section 34 voids provisions that exclude, modify, or restrict the Act or deter you from using it — courts have struck down notice-deeming clauses and adjudication obstacles on that basis — but a clearly drafted time bar on contractual EOT or variation claims generally stands. Treat NSW time bars as enforceable: run notice discipline, and negotiate the windows before signing.
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