The purposive approach to payment schedule validity

There are only four criteria to be satisfied before a document will be characterised as a payment schedule under the Building and Construction Industry Security of Payment Act 1999 (NSW) (Act), being that it:>

1. identifies the payment claim to which it relates;
2. indicates the amount of payment (if any) the Respondent proposes to make; and
3. indicates, if applicable, why the proposed payment is less than the amount claimed; and
4. is provided to the claimant by the applicable time.

This piece focusses on the third criterion.

The New South Wales Court of Appeal has recently confirmed the lens through which that criterion is evaluated. In most cases it is clear and unambiguous that a document is a payment schedule and the reasons for withholding payment are relatively clearly stated. But where any doubt exists, the question is not to be taken lightly. The existence of a valid payment schedule determines the correct route to adjudication, whether a statutory