Under the Building and Construction Industry Security of
Payment Act 1999 (NSW) (Act), unless the contract provides
otherwise, a payment claim may only be made within 12 months after
the work to which the claim relates was last carried out (section
13(4)(b)).
In EQ Constructions Pty Ltd v A-Civil Aust Pty Ltd
[2021] NSWSC 1604; and Iridium Developments Pty Ltd v A-Civil
Aust Pty Ltd [2021] NSWSC 1601, the NSW Supreme Court has
confirmed that the question of whether a payment claim has claimed
for work completed within 12 months is a matter for the adjudicator
to determine even though it is considered a jurisdictional
matter.
The Court adopted the distinction between first and second
category jurisdictional matters made by Basten JA in Icon Co
(NSW) Pty Ltd v Australia Avenue Developments Pty Ltd [2018]
NSWCA 339 [at 13]:
