South Australian Numbered Acts

BUILDING AND CONSTRUCTION INDUSTRY SECURITY OF PAYMENT ACT 2009 (NO 77 OF 2009) - SECT 15

15—Consequences of not paying claimant where no payment schedule

        (1)         This section applies if the respondent—

            (a)         becomes liable to pay the claimed amount to the claimant under section 14(4) as a consequence of having failed to provide a payment schedule to the claimant within the time allowed by that section; and

            (b)         fails to pay the whole or a part of the claimed amount on or before the due date for the progress payment to which the payment claim relates.

        (2)         In those circumstances, the claimant—

            (a)         may—

                  (i)         recover the unpaid portion of the claimed amount from the respondent, as a debt due to the claimant, in a court of competent jurisdiction; or

                  (ii)         make an adjudication application under section 17(1)(b) in relation to the payment claim; and

            (b)         may serve notice on the respondent of the claimant's intention to suspend carrying out construction work (or to suspend supplying related goods and services) under the construction contract.

        (3)         A notice referred to in subsection (2)(b) must state that it is made under this Act.

        (4)         If the claimant commences proceedings under subsection (2)(a)(i) to recover the unpaid portion of the claimed amount from the respondent as a debt—

            (a)         judgment in favour of the claimant is not to be given unless the court is satisfied of the existence of the circumstances referred to in subsection (1); and

            (b)         the respondent is not, in those proceedings, entitled—

                  (i)         to bring a cross-claim against the claimant; or

                  (ii)         to raise a defence in relation to matters arising under the construction contract.