Security of payment in Western Australia

Which Act applies to my WA contract?

It depends when the contract was entered into. The 2021 Act applies to construction contracts entered into on or after 1 August 2022 (s 9(1)). Contracts signed before that date stay under the old West Coast regime, now called the Construction Contracts (Former Provisions) Act 2004, with its very different rules and deadlines.

The retention trust provisions commenced in later stages, on 1 February 2023 for contracts over $1 million and 1 February 2024 for lower-value contracts, so check which stage your contract falls under.

Who can serve a payment claim in WA?

Contractors, subcontractors, suppliers and consultants with a right to progress payments under a construction contract (ss 7, 17). Home building work for an individual owner is excluded up to a contract value of $500,000 (s 10(1)); above that, homeowners are covered but the claim must include a prescribed homeowner’s notice (s 24(2)).

• The mining carve-out narrowed: only drilling for oil and gas, constructing shafts, pits and quarries for minerals, and watercraft work are excluded (s 6(3)). Fabricating and assembling process plant, excluded under the old Act, is now covered.
• Adjudication runs up the contracting chain only; the old Act’s principal-initiated adjudications are gone.
• Subcontracts under a home building head contract are always covered, whatever the head contract value.

When can I serve a payment claim in WA?

One claim on or after the last day of each named month in which you carried out work (s 23(2), (7)), earlier if the contract allows (s 23(3)), and on termination (s 23(6)). Progress claims must be served by the later of the contract date and 6 months after the work was last carried out (s 23(4)).

Final claims get the latest of the contract date, 28 days after the last defects liability period ends, and 6 months after completion of all work and supply (s 23(5)).

The claim must state that it is made under the Act (s 24(1)(d)). An invoice can be a payment claim (s 24(3)) but it still needs the endorsement, which the old Construction Contracts Act never required.

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

Fifteen business days after the payment claim, or the shorter time the contract requires (s 25(1)). No schedule in time means liability for the full claimed amount on the due date (s 26), and the claimant can take it to court with no cross-claim or contract defence available (s 27(3)), or to adjudication.

When is a progress payment due under the WA Act?

A principal must pay a head contractor within 20 business days after the claim, and anyone paying a subcontractor has 25 business days (s 20(1)). The contract can only shorten these, never extend them (s 20(2)). Home building work over $500,000 follows the contract or a 10 business day default (s 20(3)), and pay-when-paid provisions are void (s 14(2)).

When can I apply for adjudication in WA?

Within 20 business days after you first become entitled to apply (s 28(4)). Entitlement arises when a claimed or scheduled amount is unpaid at the due date, or a schedule offers less than you claimed (s 28(1)). If no schedule arrived, first notify your intention within 20 business days after the due date and allow 5 business days for a late schedule (s 28(2)).

• Applications go to an adjudicator named in the contract or an authorised nominating authority chosen by the claimant (s 29), with a copy to the respondent within 1 business day (s 30(2)).
• The response is due within 10 business days (s 34(1)), and a respondent who gave no payment schedule is barred from responding.
• The determination follows within 10 business days of the response, with agreed extensions capped at 20 (s 37(2), (3)).
• WA uniquely allows an internal review by a review adjudicator, applied for within 5 business days of receiving the determination, but the respondent must first pay the disputed adjudicated amount into trust (ss 39 to 48).

What catches people out under the WA Act?

• The transition is the trap: a contract signed before 1 August 2022 is still governed by the Construction Contracts (Former Provisions) Act 2004, with different deadlines and a different adjudication model. Check the contract date before anything else.
• Claims must state they are made under the Act (s 24(1)(d)). The old WA regime never required an endorsement, so long-running WA businesses still omit it.
• The single 20 business day adjudication window runs from when you first become entitled to apply (s 28(4)), not from a menu of triggers like NSW. Work out the entitlement date carefully.
• Mining and resources process plant work is now covered (s 6(3)); positions built on the old carve-out no longer hold.
• Review adjudication exists (ss 39 to 48), but a respondent seeking review must first pay the disputed amount into trust, so it is not a free second bite.
• A "business day" excludes every day from 22 December to 10 January (s 4(1)).

Frequently asked questions

Primary sources

• Building and Construction Industry (Security of Payment) Act 2021 (WA), legislation.wa.gov.au
• Building and Construction Industry (Security of Payment) Act 2021 Commencement Proclamation 2022 (WA)

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.