Security of payment in South Australia

Who can serve a payment claim in South Australia?

Anyone who carries out construction work, or supplies related goods and services, under a construction contract in South Australia: subcontractors, head contractors, suppliers and consultants. The contract can be written or oral, and the Act applies even if the contract says another state’s law governs it (s 7(1)).

• Domestic building work is excluded where the other party is an owner-occupier: work on premises where the person you contracted with lives or intends to live (s 7(2)(b)). Residential work for builders and developers is covered.
• Employees cannot claim against their employer (s 7(3)(a)), and the work must be carried out in South Australia (s 7(4)).
• Drilling for or extracting oil, natural gas or minerals, including tunnelling and boring for that purpose, is not construction work (s 5(2)).
• Loan, guarantee and insurance contracts with financial institutions are outside the Act (s 7(2)(a)).

When can I serve a payment claim in South Australia?

On and from each reference date. If your contract does not fix one, the reference date is the last day of the month in which you first carried out work, and the last day of each later month (s 4). You get one claim per reference date (s 13(5)), served no later than six months after you last carried out work (s 13(4)).

The claim must identify the work, state the claimed amount, and state that it is made under the Act (s 13(2)). An unendorsed claim is not a valid payment claim in SA.

You can include amounts from earlier claims that remain unpaid (s 13(6)), which is the standard way to keep an old amount alive within the six month window.

How long do I have to serve a payment schedule in South Australia?

Fifteen business days after the payment claim is served, or the time your contract requires, whichever expires earlier (s 14(4)(b)). If you do not serve a schedule in time, you become liable for the full claimed amount on the due date, and the claimant can sue for it as a debt or go to adjudication (ss 14(4), 15).

That is more time than the 10 business days in NSW, Victoria, Tasmania and the ACT, but contracts routinely shorten it, and the shorter contractual period wins. The schedule must identify the claim, state the amount you propose to pay, and give reasons for any difference (s 14(2), (3)).

When is a progress payment due under the SA Act?

On the date your contract provides. If the contract is silent, the payment becomes due 15 business days after the payment claim is made (s 11(1)(b)). Unpaid amounts carry interest at the higher of the Supreme Court judgment rate and the rate your contract sets (s 11(2)), and pay-when-paid provisions are unenforceable (s 12).

When can I apply for adjudication in South Australia?

It depends on the trigger. You have 15 business days after receiving a payment schedule that offers less than you claimed, 20 business days after the due date if a scheduled amount goes unpaid, and a notice-based path when no schedule arrived at all (s 17(3)). Applications go to an authorised nominating authority, which refers them to an adjudicator (s 17(6)).

• Schedule for less than you claimed: apply within 15 business days after receiving the schedule (s 17(3)(c)).
• Scheduled amount not paid by the due date: apply within 20 business days after the due date (s 17(3)(d)).
• No schedule and no payment: notify the respondent of your intention within 20 business days after the due date, give them 5 business days to provide a schedule, then apply within 15 business days after that period ends (ss 17(2), 17(3)(e)).
• The adjudicator must determine the application within 10 business days after the response is lodged or falls due, unless the parties agree to more (s 21(3)), and the respondent must pay within 5 business days of the determination (s 23).

What catches people out under the SA Act?

• The outer claim window is six months after work was last carried out (s 13(4)), half the 12 months most other states allow. Slow finalisation of accounts kills SA claims.
• SA counts 15 business days where NSW counts 10, for both the payment schedule and the first adjudication window. Teams working across the border regularly mis-diarise one or the other.
• The claim must state that it is made under the Act (s 13(2)(c)). NSW dropped its general endorsement requirement in 2019; SA never did.
• A "business day" in SA excludes 27 to 31 December and any day of a statewide building industry shutdown (s 4), a limb no other state has.
• The Act has not been substantively amended since 2011, so newer eastern reforms such as supporting statements and calendar-month claims simply do not exist here.

Frequently asked questions

Primary sources

• Building and Construction Industry Security of Payment Act 2009 (SA), legislation.sa.gov.au

General information, not legal advice. Deadlines depend on your contract and the current Act, and amendments move them. Verify against the Act and your executed contract, or get advice, before relying on any date here.