Important Reminder - NSW Construction Projects

You Are Here:

Do you use sub-contractors or sub-consultants to perform some part of the work or services you are undertaking as part of a building and construction project in NSW?

If your answer is ‘YES’ then:

  • you are a ‘head contractor’ as far as the Security of Payment (SoP) Act is concerned; and
  • you MUST provide a Supporting Statement with every payment/progress claim you make to the party for whom you are doing the work or providing the service to.

Unless your payment claim is ‘accompanied’ by a properly completed and signed Supporting Statement, a recent Supreme Court decision by Justice McDougall makes it clear that:

  • your claim will not be validly served under the SoP Act; and
  • you will not be able to rely on such a claim to make an Adjudication Application.

What is a Supporting Statement?

Simply put, it is a statement that at the time of making your payment claim, you have paid all sub-contractors or sub-consultants all the amounts that are due and payable to them.

And, before you ask, ‘NO’ the time honored Statutory Declaration that you have previously used is almost certainly not ‘good enough’.

The prescribed form of Supporting Statement requires you to list:

  • all sub-contractors that have already been paid in full; and
  • separately list all sub-contractors that you have not paid in full.

You need to take particular care when completing any Supporting Statement as fines of up to $22,000 may apply for anything that is found to be false or misleading.

ITC can assist all stakeholders in implementing appropriate processes to manage the strict compliance required.

Please contact Leonard Smith if you would like a copy of the ‘prescribed Supporting Statement’ or guidance regarding the declaration that you need to make.