Section 14: What happens if I still don’t get paid?
If the adjudicator has made a determination and payment has not been received within the time specified, then there are two steps that should be taken.
The first step is to suspend works on the construction project.
Under the Act, a contractor may give notice to the head contractor (or principal) that they intend to suspend works where the head contractor (or principal) has failed to pay a determination. The notice may be given three business days after payment was ordered in the determination. The notice must be in writing and contain certain information, including:
- the name of the appointed adjudicator;
- the principal’s name and contact details;
- the contractors name and contact details;
- the date and identification number of the determination;
- the amount to be paid by the head contractor (or principal) under the determination;
- the date by which the head contractor (or principal) was to pay the amount under the determination; and
- the date on which the contractor intends to suspend performance of works.
The notice must be given at least three business days before works are suspended. Once works have been suspended in accordance with the notice then the contractor is not liable for any damage suffered by the head contractor (or principal) as a result of the suspension of works.
If the head contractor (or principal) subsequently pays the determination, then work must be commenced within three business days of receiving payment.
If the suspension of works has failed to result in payment, or the works had finished prior to the determination, then the second step is to enforce the determination through the courts.
Determinations may be enforced as a court order by filing a copy of the determination and an affidavit as to the outstanding amount with the relevant court. This requires the making of an application to the:
- Magistrates Court if the payment under the determination is less than $75,000;
- District Court if payment under the determination is less than $750,000; or
- Supreme Court if payment under the determination is greater than $750,000.
Before making an application to the relevant court you need to obtain a certified copy of the determination. This can be obtained by applying directly to the Building Commission. Applications are made to the court using the relevant forms and procedures for enforcing civil judgments. It is recommended that you contact the relevant court registry or seek professional advice before commencing proceedings to enforce a determination.
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