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NSW Builders Guide to
Security of Payment Law
Protect your cashflow and enforce your payment rights under SOPA with confidence.
You can be confident that you are getting the right legal advice.
The Building and Construction Industry Security of Payment Act 1999 (SOPA) provides builders in NSW with powerful statutory rights to secure payment for construction work. Understanding how to properly exercise these rights—from serving valid payment claims to enforcing adjudication determinations—is essential for maintaining healthy cashflow and protecting your business. This comprehensive guide explains your rights under SOPA and provides practical strategies to recover unpaid money quickly and effectively.
BOOK YOUR FREE FIRST CONSULTUnderstanding Your Rights
Under SOPA
SOPA creates a statutory entitlement to progress payments and provides a fast-track adjudication process to resolve payment disputes. For builders, this means you have legal mechanisms to enforce payment without waiting for lengthy court proceedings. The legislation is designed to keep money flowing through the construction supply chain by prioritising cashflow over finalised disputes.
The Purpose of SOPA
SOPA was introduced to address the chronic problem of delayed and unpaid payments in the building industry. The Act gives builders a statutory right to receive progress payments and provides an expedited adjudication process to determine payment disputes quickly—typically within 40-50 business days from serving a payment claim to receiving a determination. Importantly, SOPA applies to virtually all construction contracts in NSW, including residential building work for owner-occupiers since 1 March 2021. Learn more about the Security of Payment Act NSW.
Who Can Use SOPA
Any person who carries out construction work or supplies related goods and services under a construction contract can use SOPA to recover payment. This includes head contractors building for owners, subcontractors working for head contractors, and suppliers providing materials. The Act creates a cascading system of payment rights throughout the construction supply chain, ensuring everyone who contributes to a project has access to the same enforcement mechanisms.
Key Benefits for Builders
SOPA provides builders with several critical advantages: the right to serve payment claims at regular intervals, strict timeframes that work in your favour if the other party fails to respond, a rapid adjudication process that delivers binding interim determinations, the statutory right to suspend work if payment is not made, and powerful enforcement mechanisms including court judgments and garnishee orders. Understanding and properly exercising these rights can mean the difference between maintaining cashflow and facing financial distress.
The Purpose of SOPA
SOPA was introduced to address the chronic problem of delayed and unpaid payments in the building industry. The Act provides an expedited adjudication process to determine payment disputes quickly—typically within 40-50 business days from serving a payment claim to receiving a determination.
Who Can Use SOPA
Any person who carries out construction work or supplies related goods and services under a construction contract can use SOPA to recover payment. This includes head contractors, subcontractors, and suppliers.
Key Benefits for Builders
SOPA provides the right to serve payment claims at regular intervals, strict timeframes that work in your favour, a rapid adjudication process, the statutory right to suspend work, and powerful enforcement mechanisms.
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Preparing Valid Payment Claims
A payment claim is the foundation of your SOPA rights. Getting it right is critical because an invalid payment claim cannot support an adjudication application. While SOPA sets a relatively low threshold for validity, builders should ensure their payment claims meet all statutory requirements and include sufficient detail to withstand scrutiny.
Payment Claim Timing
Your right to serve a payment claim is governed by when you can make a claim under the contract and the Act. Most building contracts specify when progress claims can be made based on completion of stages, calendar intervals (such as monthly), or submission of claims. Under the current law (since October 2019), section 13(1A) allows payment claims to be served "on and from the last day of the named month" for work performed in that month. You can only serve one payment claim per named month for work in that month, though claims can include work from previous months. Understanding your claim timing is important for maintaining regular cashflow.
Mandatory Requirements Under Section 13
Section 13 of SOPA sets out the requirements for a valid payment claim. Your payment claim must: (1) identify the construction work or related goods and services to which the claim relates, (2) specify the amount of the progress payment claimed, and (3) state that it is made under the Act. Including the words 'This is a payment claim made under the Building and Construction Industry Security of Payment Act 1999' removes any ambiguity about the nature of the document.
Supporting Documentation and Detail
While not strictly required by SOPA, including supporting documentation strengthens your payment claim and improves your prospects if the matter proceeds to adjudication. Consider attaching: progress photos showing work completed, variation records for any additional works claimed, invoices from suppliers or subcontractors supporting your costs, and calculations showing how the claimed amount was derived. Good record-keeping throughout the project makes preparing detailed payment claims much easier.
Common Mistakes to Avoid
Builders should avoid several common mistakes when preparing payment claims: serving multiple payment claims for the same named month (only one claim per named month for work in that month is permitted), failing to clearly state the claim is made under SOPA, providing insufficient detail about the works claimed, claiming for work not yet completed or goods not yet supplied, and serving payment claims before the end of the relevant month. Any of these errors can render your payment claim invalid.
Payment Claim Timing
Under the current law, you can serve one payment claim per named month for work in that month. Claims can be served on and from the last day of the named month under section 13(1A). Claims can include work from previous months.
Mandatory Requirements
Your payment claim must: identify the construction work, specify the amount claimed, and state that it is made under SOPA. Include the words 'This is a payment claim made under the Building and Construction Industry Security of Payment Act 1999'.
Supporting Documentation
Include supporting documentation: progress photos, variation records, invoices from suppliers or subcontractors, and calculations showing how the claimed amount was derived.
Common Mistakes
Avoid: serving multiple claims for the same named month, failing to state the claim is under SOPA, insufficient detail about works, claiming for uncompleted work, and serving claims before the end of the month.
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Serving Payment Claims Properly
Proper service of your payment claim is essential. If service is defective, your payment claim may be invalid and you will lose your SOPA rights for that reference date. Understanding the service requirements and maintaining proof of service protects your position if the matter is later disputed.
Methods of Service
SOPA does not prescribe specific methods of service, so you should follow the service provisions in your construction contract. Common methods include: registered post to the address specified in the contract, personal delivery to the respondent or their authorised representative, email to the email address specified in the contract for notices, or courier service with confirmation of delivery. If your contract does not specify a service method, use a method that provides proof of delivery.
Maintaining Proof of Service
Always maintain clear evidence that you served your payment claim. This might include: registered post tracking numbers and delivery confirmations, email sent confirmations with timestamps, statutory declarations from the person who personally delivered the claim, or courier delivery receipts. If service is later challenged in adjudication, you will need to prove that you served the payment claim in accordance with the contract. Without proof of service, you may lose your SOPA rights.
Timing Considerations
Serve your payment claim as soon as practicable after the reference date. While you generally have up to 12 months from the reference date to serve a payment claim, delays can create practical problems: the respondent may query why you waited so long, evidence of completed works may be harder to gather, and the respondent may have already committed the funds elsewhere. Prompt claiming also maintains healthy cashflow and reduces the risk of disputes.
Methods of Service
Follow the service provisions in your construction contract. Common methods include registered post, personal delivery, email, or courier service. Use a method that provides proof of delivery.
Maintaining Proof of Service
Maintain clear evidence of service: tracking numbers, email confirmations, statutory declarations, or courier receipts. Without proof of service, you may lose your SOPA rights.
Timing Considerations
Serve your payment claim as soon as practicable after the reference date. Prompt claiming maintains healthy cashflow and reduces the risk of disputes.
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When the Respondent Serves
a Payment Schedule
After you serve a payment claim, the respondent must either pay the claimed amount or serve a payment schedule within the timeframe specified in the contract (typically 10 business days). The payment schedule must state the amount the respondent proposes to pay and, if less than the claimed amount, the reasons for the difference.
Evaluating the Payment Schedule
Carefully review any payment schedule you receive. Check whether it was served within the required timeframe—if served late, it may be invalid. Review the scheduled amount and compare it to your claim. Examine the reasons given for any reduction—are they legitimate? Do they rely on contract terms? Are they supported by evidence? Understanding the respondent's position helps you decide whether to accept the scheduled amount, negotiate a resolution, or proceed to adjudication.
Your Options After Receiving a Payment Schedule
If the respondent serves a valid payment schedule, you have several options. If the scheduled amount is acceptable, you can agree to accept it and the matter is resolved. If the scheduled amount is unacceptable, you can negotiate with the respondent to reach a compromise. If negotiation fails, you can lodge an adjudication application within 10 business days of receiving the payment schedule.
The 10 Business Day Adjudication Window
If you decide to pursue adjudication, you must lodge and serve your adjudication application within 10 business days of receiving the payment schedule. This timeframe is strict and cannot be extended. Missing this deadline means you lose your right to adjudicate that payment claim, though you may still have other legal remedies. Because the timeframe is so tight, builders should engage a construction lawyer immediately upon receiving an unsatisfactory payment schedule.
Evaluating the Payment Schedule
Check whether it was served within the required timeframe. Review the scheduled amount and examine the reasons given for any reduction. A late payment schedule may be invalid.
Your Options
Accept the scheduled amount, negotiate a compromise, or lodge an adjudication application within 10 business days of receiving the payment schedule.
10 Business Day Window
The 10 business day timeframe to lodge an adjudication application is strict and cannot be extended. Engage a construction lawyer immediately upon receiving an unsatisfactory payment schedule.
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When No Payment Schedule
Is Served
If the respondent fails to serve a payment schedule within the required timeframe and also fails to pay the claimed amount, the claimed amount becomes a statutory debt under section 14(4) of SOPA. This is one of the most powerful provisions in SOPA for builders, as it converts your payment claim into an immediately enforceable debt without needing to prove the merit of your claim.
The Section 17(2) Notice Process
When no payment schedule has been served, you can issue a section 17(2) notice to the respondent. This notice must be served within 20 business days of the due date for payment and must state that you intend to apply for adjudication. The respondent then has 5 business days from receiving the notice to serve a payment schedule. If they serve a payment schedule within this 5 business day period, you then have 10 business days from the end of that period to lodge an adjudication application.
Direct Adjudication Without Section 17(2) Notice
Alternatively, you can skip the section 17(2) notice and proceed directly to adjudication. If no payment schedule has been served, you have 20 business days from the due date for payment to lodge an adjudication application. In this scenario, the respondent cannot serve a payment schedule after you lodge the adjudication application. This means the adjudicator will determine your claim without considering any reasons for non-payment from the respondent—often the strongest position for a claimant under SOPA.
Court Proceedings as an Alternative
Instead of adjudication, you can commence court proceedings to recover the statutory debt. Section 14(4) creates a debt due and payable by the respondent, which you can sue for in court. Court proceedings take longer than adjudication but may be appropriate in certain circumstances, such as when you also need other remedies like termination of the contract. Importantly, if you commence court proceedings, you cannot also pursue adjudication for the same payment claim.
Section 17(2) Notice Process
Issue a section 17(2) notice within 20 business days of the due date for payment. The respondent then has 5 business days to serve a payment schedule before you can proceed to adjudication.
Direct Adjudication
Skip the section 17(2) notice and proceed directly to adjudication within 20 business days. The respondent cannot serve a payment schedule after you lodge the application—often the strongest position.
Court Proceedings
Commence court proceedings to recover the statutory debt. Court proceedings take longer but may be appropriate when you need other remedies like termination of the contract.
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Preparing Your
Adjudication Application
The adjudication application is your opportunity to present your case to an independent adjudicator. A well-prepared application significantly improves your prospects of success. Builders should engage a construction lawyer to prepare the adjudication application to ensure all technical requirements are met and your case is presented persuasively.
Choosing an Authorised Nominating Authority
SOPA requires you to lodge your adjudication application with an authorised nominating authority (ANA). In NSW, the currently recognised ANAs include Adjudicate Today, Resolution Institute, ABC Dispute Resolution Services, MBA NSW, and RICS Dispute Resolution Service. Each ANA has its own procedures and fee structures, but the substantive law applied is the same. Your construction lawyer can advise which ANA is most appropriate for your matter based on factors such as processing times, adjudicator experience, and costs.
Required Contents of the Application
Your adjudication application must include: a copy of the construction contract or evidence of its terms, the payment claim and evidence of service, the payment schedule (if one was served) and evidence of receipt, submissions explaining why you are entitled to the claimed amount, supporting evidence such as contracts, variations, invoices, photos, correspondence, and expert reports if relevant, a schedule of costs if you are seeking costs, and the application fee required by the ANA.
Addressing Jurisdictional Requirements
The adjudicator must first determine whether they have jurisdiction. Jurisdictional requirements include: a valid construction contract exists, a valid payment claim was served on a reference date, the payment claim complies with section 13 of SOPA, the claimant is entitled to make a progress payment, and the adjudication application was lodged within time. Your application should specifically address these requirements and provide evidence supporting each one.
Presenting Your Substantive Case
After establishing jurisdiction, your application should address the merits of your claim. Explain the work performed or goods supplied, provide evidence that the work was completed in accordance with the contract, respond to any reasons for withholding payment raised in the payment schedule, quantify your entitlement with supporting calculations and invoices, and address any relevant contract terms. Use clear headings, number your paragraphs, and cross-reference your evidence.
Choosing an ANA
Lodge your application with an authorised nominating authority (ANA). Currently recognised ANAs include Adjudicate Today, Resolution Institute, ABC Dispute Resolution Services, MBA NSW, and RICS Dispute Resolution Service.
Required Contents
Include: construction contract, payment claim and evidence of service, payment schedule (if served), submissions, supporting evidence, schedule of costs, and the ANA application fee.
Jurisdictional Requirements
Address: valid construction contract, valid payment claim served on reference date, section 13 compliance, entitlement to progress payment, and application lodged within time.
Substantive Case
Explain work performed, provide evidence of completion, respond to reasons for withholding, quantify your entitlement with calculations, and address relevant contract terms.
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Your Right to Suspend Work
Section 27 of SOPA gives builders a statutory right to suspend work if payment is not made. This right exists regardless of whether the construction contract permits suspension and cannot be contracted out of. However, suspension must be exercised carefully and in strict compliance with SOPA to avoid breaching the contract or incurring liability.
When You Can Suspend
You can suspend work under section 27 if: you have served a payment claim, the respondent has served a payment schedule proposing to pay less than the claimed amount, and the respondent has not paid the scheduled amount by the due date. You can also suspend if you have obtained a favourable adjudication determination and the respondent has not satisfied the determination within 5 business days. The right to suspend is a powerful enforcement mechanism that often prompts payment without needing to pursue further legal action.
Proper Suspension Notice Requirements
Before suspending work, you must serve a written notice of suspension on the respondent at least 2 business days before the intended suspension date. The notice should clearly state: that you are suspending under section 27 of SOPA, the date from which suspension will commence, the reasons for suspension (non-payment), the amount outstanding, and what the respondent must do to have the suspension lifted. Proper notice protects you from allegations that you have wrongfully abandoned the contract.
What Suspension Means in Practice
Suspension means you stop performing work under the contract but do not terminate the contract. You are entitled to leave the site and stand down your workers. The respondent cannot treat the suspension as a breach of contract or take action against you under the contract for suspending. However, you must resume work within a reasonable time after the outstanding amount is paid. Failure to resume can give the respondent grounds to terminate the contract.
Risks and Strategic Considerations
While suspension is a powerful right, it should be used strategically. Suspending work may damage the commercial relationship with the other party, impact your reputation in the industry, delay project completion, and create cash flow issues if you have ongoing costs. Consider whether suspension is likely to prompt payment or simply escalate the dispute. In some cases, proceeding directly to court enforcement of an adjudication determination may be more effective.
When You Can Suspend
You can suspend if the respondent fails to pay the scheduled amount by the due date, or fails to satisfy an adjudication determination within 5 business days. This right often prompts payment.
Notice Requirements
Serve written notice at least 2 business days before suspension. State that you're suspending under section 27, the date, reasons, amount outstanding, and what the respondent must do.
What Suspension Means
Stop performing work but don't terminate the contract. The respondent cannot treat suspension as a breach. You must resume work within a reasonable time after payment.
Strategic Considerations
Suspension may damage relationships, impact reputation, and delay project completion. Consider whether it will prompt payment or escalate the dispute.
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Enforcing Adjudication
Determinations
If you obtain a favourable adjudication determination, SOPA provides powerful enforcement mechanisms if the respondent fails to pay. Understanding these enforcement options allows you to convert the determination into actual payment quickly.
The Adjudication Certificate
After the adjudicator makes a determination in your favour, the ANA will issue an adjudication certificate. This certificate certifies the determination and the amount payable. The respondent must pay the certified amount within 5 business days. If they fail to do so, you can file the adjudication certificate with the court and the court must enter judgment for the certified amount.
Entering Judgment
To enter judgment, you file the adjudication certificate with the court registry along with an affidavit verifying that the respondent has not satisfied the determination. The court enters judgment as a matter of course without needing a hearing. This judgment has the same force and effect as a judgment made by the court after a full trial. The respondent cannot dispute the merits of the determination at this stage.
Enforcement Options After Judgment
Once you have a court judgment, you can use various enforcement mechanisms: writ of execution allowing the sheriff to seize and sell the respondent's property, garnishee orders directing third parties who owe money to the respondent (such as employers or banks) to pay you instead, bankruptcy proceedings against an individual respondent, winding up proceedings against a corporate respondent, or charging orders over the respondent's real property.
The Contractors Debt Act
The Contractors Debt Act 1997 (NSW) provides an additional enforcement mechanism where the respondent is a head contractor who has received payment from the principal for work you performed. Under this Act, you can apply for an order making the principal jointly liable with the head contractor for your debt. This is particularly useful where the head contractor has been paid but has not passed the payment down the supply chain.
Adjudication Certificate
The ANA issues an adjudication certificate after a favourable determination. If the respondent fails to pay within 5 business days, file the certificate with the court to obtain judgment.
Entering Judgment
File the adjudication certificate with an affidavit. The court enters judgment without a hearing. The respondent cannot dispute the merits at this stage.
Enforcement Options
Use writs of execution, garnishee orders, bankruptcy proceedings, winding up proceedings, or charging orders over real property.
Contractors Debt Act
Apply for an order making the principal jointly liable with the head contractor. Useful where the head contractor has been paid but hasn't passed payment down.
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Accessing Retention Money
Many construction contracts provide for retention money—a percentage of each progress payment withheld by the head contractor as security for defect rectification. Since 1 September 2020, retention money held under certain NSW construction contracts must be held on trust in a dedicated account, with thresholds progressively expanding.
Retention Trust Requirements
Under amendments to the Building and Construction Industry Security of Payment Act, retention money must be held in a retention trust account with an authorised deposit-taking institution. The head contractor must notify you of the trust account details within 5 business days of receiving your first payment claim. The retention money must be deposited into the trust account within 10 business days. The retention trust regime commenced on 1 September 2020 for projects valued at $20 million or more, with thresholds progressively reduced over time.
When Retention Should Be Released
Your contract should specify when retention money is released—typically after practical completion and the expiry of the defects liability period. If the head contractor fails to release retention money when it becomes due, this may constitute wrongful withholding. SOPA provides specific mechanisms for recovering wrongfully withheld retention money, including the ability to make a retention money claim and pursue adjudication.
Making a Retention Money Claim
If you are entitled to retention money that has not been released, you can serve a retention money claim on the head contractor. This claim operates similarly to a payment claim under SOPA but specifically relates to retention money. The head contractor must respond with a retention money schedule or pay the claimed amount. If they fail to do so, you can pursue adjudication or court proceedings to recover the retention money.
Retention Trust Requirements
Retention money must be held in a trust account. The head contractor must notify you of trust details within 5 business days and deposit retention within 10 business days.
When Retention Is Released
Typically after practical completion and the expiry of the defects liability period. If wrongfully withheld, SOPA provides specific recovery mechanisms.
Making a Retention Claim
Serve a retention money claim on the head contractor. If they fail to respond, pursue adjudication or court proceedings to recover the retention money.
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SOPA Compliance and
Licensing Requirements
Builders must hold the appropriate licences to access SOPA rights. Section 8(2) of SOPA specifically addresses licensing requirements and can prevent builders from serving payment claims if they do not hold the necessary licences at the relevant time.
Section 8(2) Licensing Requirements
Section 8(2) provides that a payment claim cannot be made for work requiring a licence under the Home Building Act 1989 unless the claimant held the appropriate licence when the work was performed. This means if you perform work requiring a contractor licence or supervisor licence, you must hold that licence throughout the period when the work is performed. If you allow your licence to lapse or work outside your licence class, you may lose your right to claim payment for that work under SOPA.
Impact on Payment Claims
If you serve a payment claim but did not hold the required licence when the work was performed, the respondent can challenge the validity of your payment claim on licensing grounds. If successful, your payment claim will be invalid and you will lose your SOPA rights for that claim. This can have serious consequences, especially if the respondent also disputes liability for the work under the contract on the same licensing grounds. Maintaining current licensing and working within your licence class is therefore essential.
Broader SOPA Compliance
Beyond licensing, builders should ensure compliance with all SOPA requirements: serve payment claims on proper reference dates, include all required information in payment claims, serve documents in accordance with the contract, lodge adjudication applications within time, and maintain accurate records of all SOPA-related documents and deadlines. Non-compliance with SOPA procedures can result in loss of payment rights, exposure to costs, and damage to your reputation in the industry.
Section 8(2) Requirements
You must hold the appropriate licence when work is performed. If your licence lapses or you work outside your licence class, you may lose SOPA rights for that work.
Impact on Payment Claims
The respondent can challenge payment claims on licensing grounds. If successful, your claim will be invalid and you'll lose SOPA rights for that claim.
Broader Compliance
Serve claims on proper reference dates, include all required information, serve documents correctly, lodge adjudication applications on time, and maintain accurate records.
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Risks and Considerations
for Builders
While SOPA provides powerful rights for builders, there are also risks and potential consequences to be aware of. Understanding these risks helps you exercise your SOPA rights strategically and avoid unintended negative outcomes.
Invalid Payment Claims
Serving an invalid payment claim can result in losing your SOPA rights for that reference date. Invalid claims cannot support adjudication applications, and you may be exposed to costs if you lodge an adjudication application based on an invalid payment claim. Always ensure your payment claims strictly comply with section 13 requirements.
Missed Deadlines
SOPA imposes strict timeframes that cannot be extended. Missing the 10 business day deadline to lodge an adjudication application after receiving a payment schedule means you lose your right to adjudicate that claim. Similarly, failing to lodge within 20 business days after the due date when no payment schedule has been served can bar your application.
Licensing Non-Compliance
Working without the appropriate licence or allowing your licence to lapse during construction can invalidate your payment claims under section 8(2). This not only prevents you from using SOPA enforcement mechanisms but may also give the other party grounds to terminate the contract or refuse payment altogether.
Blacklisting Concerns
Some builders worry that exercising SOPA rights may result in being blacklisted by head contractors or principals. While the law prohibits victimisation for exercising SOPA rights, the practical reality is that commercial relationships matter. Consider the long-term relationship and reputation implications before aggressively pursuing SOPA enforcement, especially for disputes over smaller amounts.
Invalid Payment Claims
Serving an invalid payment claim can result in losing your SOPA rights for that reference date. Invalid claims cannot support adjudication applications.
Missed Deadlines
SOPA imposes strict timeframes that cannot be extended. Missing deadlines means losing your right to adjudicate that claim.
Licensing Non-Compliance
Working without the appropriate licence can invalidate your payment claims under section 8(2) and may give grounds to terminate the contract.
Blacklisting Concerns
Consider the long-term relationship and reputation implications before aggressively pursuing SOPA enforcement.
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Practical Tips for Builders
Successfully exercising your SOPA rights requires careful planning, good record-keeping, and strategic decision-making. Here are practical tips to help you maximise your SOPA rights and maintain healthy cashflow on your building projects.
Review Contracts Before Signing
Have your construction contracts reviewed by a construction lawyer before signing. Identify unfavourable payment terms, shortened response periods, special conditions that may reduce your SOPA rights. Prevention is always better than dispute resolution.
Maintain Detailed Records
Keep comprehensive records throughout the project: progress photos with dates, daily site diaries, variation approvals in writing, all correspondence, invoices from suppliers and subcontractors, and timesheets for labour. Good records make preparing payment claims and adjudication applications much easier.
Serve Payment Claims Regularly
Do not wait until the end of the project to claim payment. Serve payment claims at every reference date to maintain regular cashflow and reduce your exposure if payment problems arise. Regular claiming also makes it harder for the other party to dispute the quantum of works.
Respond Quickly to Payment Schedules
When you receive an unsatisfactory payment schedule, engage a construction lawyer immediately. The 10 business day timeframe to lodge an adjudication application is very tight. Early engagement allows time to gather evidence and prepare comprehensive submissions.
Engage Specialist Construction Lawyers
SOPA is a highly technical area of law. Engage a lawyer who specialises exclusively in construction law and has extensive experience with SOPA matters. Generalist lawyers may not be familiar with the nuances of SOPA procedure and case law.
Consider Commercial Factors
Before pursuing aggressive SOPA enforcement, consider the commercial context: your ongoing relationship with the other party, the size of the dispute relative to the project value, your reputation in the industry, and the likelihood of future work with that party.
Review Contracts Before Signing
Have contracts reviewed by a construction lawyer before signing. Identify unfavourable payment terms and special conditions that may reduce your SOPA rights.
Maintain Detailed Records
Keep progress photos, site diaries, variation approvals, correspondence, invoices, and timesheets. Good records strengthen payment claims and adjudication applications.
Serve Claims Regularly
Serve payment claims at every reference date to maintain regular cashflow and reduce exposure if payment problems arise.
Respond Quickly
Engage a construction lawyer immediately upon receiving an unsatisfactory payment schedule. The 10 business day deadline is strict.
Engage Specialists
SOPA is highly technical. Engage a lawyer who specialises exclusively in construction law with extensive SOPA experience.
Consider Commercial Factors
Consider ongoing relationships, dispute size, your reputation, and likelihood of future work before aggressive enforcement.
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Navigating the Security of Payment Act requires specialist knowledge of construction law, adjudication procedures, and strategic enforcement options. Whether you need to prepare a payment claim that will withstand scrutiny, respond to a payment schedule within tight timeframes, lodge an adjudication application, or enforce a determination through the courts, John Dela Cruz provides focused expertise in SOPA matters. With over 17 years concentrating exclusively on construction law, John helps builders protect their cashflow rights and recover unpaid money efficiently.
Why Choose Contracts Specialist
John Dela Cruz
Principal Lawyer, Contracts Specialist
When you work with Contracts Specialist, you receive legal advice directly from John Dela Cruz — Principal Lawyer with over 17 years of exclusive construction law experience.
John is an Australian Legal Practitioner and he services NSW, Queensland, Victoria, and Tasmania. He has dedicated his entire legal career to specialise in construction law. As a former Divisional President of the Master Builders Association NSW, he combines deep legal expertise with comprehensive industry knowledge. He maintains daily experience in building dispute tribunals (NCAT, VCAT, QCAT, TASCAT) and courts across multiple jurisdictions.
Unlike generalist lawyers who handle various legal matters, John specialises exclusively in construction law matters affecting homeowners, builders, contractors, and subcontractors. You receive focused expertise from a lawyer who understands both the legal framework and the practical realities of the building industry.
How to Get Started
1
Book Your Free Consultation
Book your free consultation through our online calendar - choose a time that suits you. No cost, no obligation. You will have direct access to our Principal Lawyer from your very first conversation.
2
Discuss Your Matter with Our Principal Lawyer
Speak directly with John Dela Cruz, Principal Lawyer, about your construction law matter. We may request additional documents such as your building contract, payment claims, or correspondence to fully understand your situation.
3
Receive Your Cost Disclosure & Proceed
Receive a detailed cost disclosure outlining the scope of work and fees. Review and agree to proceed when you are ready - no hidden costs. Our fixed-fee approach means you know exactly what you are paying for.
1
Book Your Free Consultation
Book your free consultation through our online calendar. No cost, no obligation. Direct access to our Principal Lawyer from your very first conversation.
2
Discuss Your Matter
Speak directly with John Dela Cruz about your construction law matter. We may request additional documents to fully understand your situation.
3
Receive Cost Disclosure & Proceed
Receive a detailed cost disclosure outlining scope and fees. No hidden costs. Our fixed-fee approach means you know exactly what you are paying for.
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Get Expert Advice on Security of Payment Matters
Whether you need to prepare a payment claim, respond to a payment schedule, lodge an adjudication application, or enforce a determination, our Principal Lawyer provides specialist guidance with transparent fees and direct access.
Book your free consultation today - protect your cashflow rights under SOPA with no cost and no obligation.
Frequently Asked Questions
Common questions about Security of Payment for NSW builders.
How often can I serve payment claims under SOPA?
Under the current law (since October 2019), you can serve one payment claim per named month for work performed in that month. Payment claims can be served on and from the last day of the named month under section 13(1A) of SOPA. Claims can include work from previous months that has not been previously claimed. Planning your payment claims ensures regular cashflow throughout the project.
What happens if the owner does not respond to my payment claim?
If the owner fails to serve a payment schedule within the required timeframe and does not pay the claimed amount, the claimed amount becomes a statutory debt under section 14(4) of SOPA. You can then either serve a section 17(2) notice giving the owner one last chance to respond, proceed directly to adjudication within 20 business days, or commence court proceedings to recover the debt.
How long does the adjudication process take?
Adjudication is designed to be fast. After you lodge your adjudication application, the respondent has the later of 5 business days after receiving the application or 2 business days after receiving notice of the adjudicator's acceptance to serve a response. The adjudicator then has 10 business days from accepting the application to make a determination. From serving a payment claim to receiving a determination typically takes 40-50 business days.
Can I suspend work if I am not paid?
Yes, section 27 of SOPA gives you a statutory right to suspend work if the respondent fails to pay a scheduled amount by the due date or fails to satisfy an adjudication determination within 5 business days. You must give at least 2 business days written notice before suspending. This right cannot be contracted out of and the respondent cannot treat the suspension as a breach of contract.
Do I need to hold a licence to use SOPA?
If the work requires a licence under the Home Building Act 1989, section 8(2) of SOPA requires you to hold the appropriate licence when the work was performed. If you do not hold the required licence, you cannot serve a valid payment claim for that work under SOPA. Maintaining current licensing and working within your licence class is essential to protect your SOPA rights.
What happens after I get a favourable adjudication determination?
If the adjudicator determines in your favour, the respondent must pay the determined amount within 5 business days. If they fail to pay, you can file the adjudication certificate with the court to obtain a judgment, then use court enforcement mechanisms such as garnishee orders, writs of execution, or proceedings under the Contractors Debt Act to recover the money.
How often can I serve payment claims?
Under the current law, you can serve one payment claim per named month for work in that month. Claims can be served on and from the last day of the named month.
What if the owner doesn't respond?
The claimed amount becomes a statutory debt under section 14(4). You can serve a section 17(2) notice, proceed to adjudication, or commence court proceedings.
How long does adjudication take?
From serving a payment claim to receiving a determination typically takes 40-50 business days.
Can I suspend work if not paid?
Yes, section 27 gives you a statutory right to suspend on 2 business days notice. This right cannot be contracted out of.
Do I need a licence to use SOPA?
If the work requires a licence under the Home Building Act, you must hold the appropriate licence when the work was performed.
What happens after a favourable determination?
The respondent must pay within 5 business days. If they fail, file the adjudication certificate with the court to obtain judgment.
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Related Resources
Explore more resources about Security of Payment and protecting your rights as a builder.
Security of Payment Act NSW
Comprehensive overview of the Building and Construction Industry Security of Payment Act 1999 and how it applies to builders in NSW.
Learn More →SOPA Payment Claim Guide
Detailed guidance on preparing valid payment claims that comply with section 13 requirements and withstand scrutiny in adjudication.
Learn More →Security of Payment Adjudication
Everything you need to know about the adjudication process under SOPA, from lodging applications to receiving determinations.
Learn More →Recovering Unpaid Payments NSW
Explore your enforcement options when payments are overdue, including adjudication, court proceedings, and suspension rights.
Learn More →Retention Trust and Wrongfully Withheld Money
Understand retention trust requirements and how to access retention money that is wrongfully withheld under SOPA.
Learn More →Section 8(2) SOPA Licence Requirement
Learn about licensing requirements under section 8(2) of SOPA and how they affect your right to make payment claims.
Learn More →SOPA Compliance NSW
Essential compliance requirements for builders using SOPA to ensure your payment claims and adjudication applications are valid.
Learn More →Resuming Work After Suspension
Practical guidance on properly resuming work after exercising your suspension rights under section 27 of SOPA.
Learn More →Can Head Contractor Blacklist for Using SOPA
Understand the legal protections against victimisation for exercising SOPA rights and the practical realities of industry relationships.
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