• Respondent required to pay or release Adjudicated Amount
• Failure to pay an Adjudicated Amount
• Courts of Competent Jurisdiction
• Enforcement of Judgment Order
• Recovery from Principal

The Building and Construction Industry Security of Payment Act 2002 provides that if a party fails to pay the whole or any part of an Adjudicated Amount by the due date, the party to whom the Adjudicated Amount is owed may request an Adjudication Certificate from the ANA to whom the Adjudication Application was made.
The Adjudication Certificate may be filed in a court of competent jurisdiction, with an Affidavit by that person stating the amount unpaid, to recover, as a debt due to that person, the unpaid portion of the Adjudicated Amount.

Respondent required to pay or release Adjudicated Amount

When a claimant has received an adjudicator’s determination that a claimed amount is payable, or in the case of a performance security claim, to be released, that amount, including any interest and portion of the adjudicator’s fees that the adjudicator has determined, must be paid or released on or before the later of:

1. 5 business days after the parties receive a copy of the adjudicator’s determination
2. If the adjudicator determines a later date, that date

Failure to pay an Adjudicated Amount

If the respondent does not pay or release the Adjudicated Amount (including any portion of the adjudicator’s fees, and interest) by the due date, the claimant may:

1. Request the ANA to provide an Adjudication Certificate. The Adjudication Certificate can be filed in any court of competent jurisdiction, along with an Affidavit in Support of an Application for Judgement. The court will enter Judgement for the unpaid amount
2. Serve notice on the respondent of the claimant’s intention to:
   1. Suspend carrying out construction work under the construction contract; or
   2. Suspend supplying related goods and services under the construction contract.

Courts of Competent Jurisdiction

Magistrates Court of Victoria amounts up to $100,000.00

County Court of Victoria amounts over $100,000.00 with no upper limit

Supreme Court of Victoria amounts over $200,000.00 with no upper limit

Enforcement of Judgment Order

Once the Court issues the Judgment Order, it can be enforced in the same way as any civil debt. You may need the assistance of a lawyer, depending on which enforcement action you choose to pursue. Further information is available on the Magistrates Court of Victoria website.

Recovery from Principal

The Building and Construction Industry Security of Payment Act 2002, Division 4 – Recovery from principal, details the circumstances where, if the respondent fails to pay the whole or any part of the adjudicated amount, the claimant may recover the unpaid amount from “the principal”.

In brief, Division 4 of the Act provides:

1. If the respondent fails to pay the whole or any part of the adjudicated amount, the claimant may recover the unpaid amount from “the principal”, provided that:
   1. The claimant has obtained Judgment for the Adjudicated Amount or part of the Adjudicated Amount;
   2. There is money that is payable, or will become payable from the principal to the respondent;
   3. Construction work carried out or the goods and services supplied by the claimant to or for the respondent under the construction contract are, or are part of or incidental to, the construction work or goods and services that the principal engaged the
      respondent to carry out or supply.
   4. The person who has engaged the respondent to carry out construction work or to supply goods and services under a construction contract is not exempt from this Act under section 7(2)(b) or 7(2)(ba).
2. In brief, the procedure for recovering payment from the principal is as follows:
   1. At the time the claimant files the Adjudication Certificate and supporting documentation with the Court, they should also file a completed Form 3 – Debt Certificate.
   2. The Court will return the certified Form 3 – Debt Certificate with the Judgement Order.
   3. The claimant must then serve a completed Form 1 – Notice of Claim, along with the certified Form 3 – Debt Certificate, on the principal.
3. When the amount has been paid by the principal, the claimant must provide to the principal a completed Form 3 – Discharge Notice.

Consequences for Registered Building Practitioners

If a Registered Building Practitioner (RBP) fails to pay an Adjudicated Amount under the SOP Act, there can be registration and disciplinary action consequences for the practitioner under sections 171 and 179 of the Building Act 1993. Complaints can be made to the Building and Plumbing Commission (BPC)

DOWNLOAD

Application for Adjudication Certificate Form

Regulations – Form 1 – Notice of Intention to Exercise Lien

Regulations – Form 2 – Notice of Claim

Regulations – Form 3 – Debt Certificate

Regulations – Form 4 – Discharge Notice

Regulations – Form 5 – Notice of Names of Persons From Whom a Claimant May Recover