Date of the Payment Claim in Cost Plus Payment Claims
⚠️ Compliance Warning
Serving a payment claim outside the statutory 12-month limitation period renders the entire claim invalid, resulting in a loss of rights under the Act and significant cash flow prejudice.
1. Field Name and Definition
Date of the Payment Claim is the specific calendar date when a Payment Claim is issued or served on the person liable to make payment. This date establishes the precise commencement of all statutory timelines under the Building and Construction Industry Security of Payment Act 1999 NSW (the Act).
This field appears on every Payment Claim because it serves as the critical timestamp that triggers the respondent's obligation to provide a Payment Schedule within 10 business days and establishes the foundation for all subsequent enforcement actions under the Act.
2. Legal Requirements
Relevant Legislation
The Date of the Payment Claim is governed by several key provisions of the Building and Construction Industry Security of Payment Act 1999 NSW:
- Section 13(4) - Time Limits for Claims: A payment claim may only be served within the period determined by the contract, or 12 months after the construction work was last carried out, whichever is later.
- Section 14(4) - Payment Schedule Response Timeline: A respondent must provide a payment schedule within 10 business days after receiving the payment claim.
- Section 15 - Consequences of No Payment Schedule: Failure to provide a payment schedule makes the respondent liable for the full claimed amount.
Case Law Clarifications
Estate Property Holdings Pty Limited v. Barclay Mowlem Construction Limited [2004] NSWCA 393 established that some element of the Payment Claim must have been completed within the 12 months prior to the date of the claim for it to be valid.
Fitz Jersey v Atlas Construction Group [2017] NSWSC 340 confirmed that the 12-month time limit is almost certainly a jurisdictional fact, meaning failure to comply renders the payment claim invalid.
3. Practical Guidance
Step-by-Step Instructions
- Determine the Last Work Date: Identify when construction work was last carried out or related goods and services were last supplied.
- Check Contract Terms: Review your construction contract for any specific timing requirements for payment claims.
- Calculate Allowable Period: Ensure the claim date falls within either the contractual period or 12 months from last work, whichever is later.
- Select Appropriate Date: Choose a date that allows adequate time for claim preparation whilst remaining within statutory limits.
- Document the Date: Record the date in DD Month YYYY format (e.g., 15 March 2024).
Where to Find This Information
- Site Diary Entries
- Delivery Dockets
- Timesheet Records
- Construction Contract
- Project Management Systems
4. Common Mistakes and How to Avoid Them
- Pre-dating Claims: Attempting to backdate claims is fraudulent and voids the claim. Always use the actual date of service.
- Missing the 12-Month Deadline: Failing to track when work was last completed can result in serving claims outside the statutory time limit. Use project management tools to track key dates.
- Ignoring Contractual Requirements: Some contracts specify monthly claim dates. Adhere to these provisions to ensure validity.
- Inconsistent Dating: Using different dates on supporting documentation versus the main claim creates ambiguity. Ensure all documents are consistent.
5. Risks of Not Including This Information
| Risk Type | Consequence |
|---|---|
| Legal Risks | The claim is invalid and loses all statutory protections under the Act. Adjudicators will lack jurisdiction. |
| Financial Risks | Significant delays in payment recovery, loss of interest, and disruption to project cash flow. |
| Dispute Risks | Claims face immediate dismissal at adjudication. Respondents will challenge validity based on dating errors. |
| Long-term Risks | Damaged client relationships and a reputation for poor contract administration. |
6. Examples
Properly Completed Examples
Date of Payment Claim: 15 April 2024
(Work was completed on 10 April 2024 and contract allows monthly claims)
Date of Payment Claim: 22 March 2025
(Last work was completed on 15 March 2024, within the 12-month limit)
8. Frequently Asked Questions
Q: Can I change the date on a Payment Claim after it has been served?
A: No. Once served, the date cannot be changed as it establishes all statutory timelines. If you discover an error, you must withdraw the claim and serve a new, correctly dated one if the time limits still permit.
Q: What happens if I accidentally serve a Payment Claim outside the 12-month limit?
A: The Payment Claim is invalid and cannot be enforced under the Act. You lose the right to claim payment for that work through the statutory process, though you may still have rights under general contract law.
Q: How do I prove the date I served the Payment Claim?
A: Maintain detailed records of service, such as postal receipts, email delivery confirmations, or signed delivery acknowledgements. Digital timestamps provide the strongest evidence.
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