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ARTICLE · 05 JUNE 2020

Security Of Payment Update | Absence Of Supporting Statement Not Fatal

Vincent Young
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Since supporting statements were introduced into the Building and Construction Industry Security of Payment Act 1999 NSW (Act) a question has been whether a payment claim served without one...

AustraliaReal Estate and Construction
Mark Irwin
Mark Irwin

Since supporting statements were introduced into the Building and Construction Industry Security of Payment Act 1999 NSW (Act) a question has been whether a payment claim served without one (or with deficiencies in one) is still valid.

The answer

The Court of Appeal in TFM Epping Land Pty Ltd v Decon Australia Pty Ltd [2020] NSWCA 93 has provided a definitive answer: the absence of (or deficiencies in) a supporting statement does not invalidate a payment claim.

The sanction for a failure to comply with subsection 13(7) of the Act is a penalty (only).

Subsection 13(7) of the Act provides as follows:

A head contractor must not serve a payment claim on the principal unless the claim is accompanied by a supporting statement that indicates that it relates to that payment claim.

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