A claimant is a person who is or who claims to be entitled to a progress payment. The claimant must have carried out construction work or supply of related goods and services under a construction contract - whether written, oral, partially written and partially oral. A claimant can serve a payment claim on a respondent, which sets out the amount that the claimant says is due for work performed.

In addition to this information, it is mutually beneficial if claimant's understand the responsibilities of the >> The Respondent

A claimant is entitled to make a progress payment claim if they have undertaken to carry out construction work, or the supply of related goods, under a construction contract that commenced on or after the 1st of October, 2004. Construction work and related supply of goods and services must have occured within Queensland.

Claimants' serve claims on the person who is liable to make payment under the construction contract (the respondent).

Typical claim scenarios are as follows:

• Contractors against developers / principals
• Contractors against Owner-Builders
• Subcontractors against contractors
• Suppliers against customers
• Consultants against customers
• Plant and equipment hiriers against customers

Residential construction is excluded from the jurisdiction of the Act where the respondent resides or intends to reside. This means that domestic building work is not covered by the Act. However, the Act does cover licensed owner-builders as well as those who should possess an owner-builder's license.

What can a claimant claim?

Strictly speaking, a claimant can claim for whatever they believe is their entitlement in relation to the construction work, or supply of related goods and services, that has been undertaken with respect to the construction contract. Entitlements may also included:

• Monies held in retention that are due for release
• Damages associated with the suspension of work (in reference to section 33(3) of the BCIP Act)
• Interest on overdue progress payments
• Monies claimed to be owing at practical completion
• Extension of times costs
• Variations and any other claims under the contract (i.e. insurance claims)

When can a claimant claim?

A claimant can claim from each reference date under a contruction contract, where the claimant has undertaken to carry out construction work or supply of related goods and services. The reference date refers to the date on which a claimant can make progress claims for payment. If the contract does not stipulate a specific date for the lodging of claims, the reference date is taken to be the date at the end of the month in which the work was undertaken. An important fact to note is that while a payment claim can be valid under the Act, it must also adhere to the strictures of the contract. In this situation, a payment claim must also be submitted with regards to the construction contract.

Only one claim can be submitted under the Act for each reference date but the claimant may chose to submit seperate claims under the Act and the contract. Within these claims, the claimant may include amounts that have been the subject of previous claims.

In accordance with section 17 of the Act, the payment claim may only be served within the later of the period worked out under the construction contract, or, the period of 12 months after the construction work/supply of related goods and service, to which the claim relates, was last carried out. A claim made within this period may be treated as a normal claim whether or not there existed a right to make such a claim in relation to the construction contract. For example, if construction work was performed up to and including the 30th of September 2005, a payment claim for this work can be made at any time up until the 30th of September 2006.

The payment claim must have the following aspects in order to be considered valid:

• The claim must identify the construction work or related goods and services to which the progress payment relates
• The claim must state the amount of the progress payment that the claimant claims to be payable
• The claim must state that it is made under the Act - typically the claim must have these words situated on the claim - This is a payment claim made under the Building and Construction Industry Payments Act QLD 2004

These three requirements can be easily adopted into a tax invoice, and thus the tax invoice can function as a payment claim.

A claimant can only serve one payment claim per reference date under the construction contract. The claimant may include in a payment claim, an amount which has been the subject of a previous claims. A payment claim may be valid under the BCIP Act, but the claim must also adhere to the conditions imposed by the construction contract. Frequently, contracts state that claims can only be made at certain times, on or after reference dates. Refer to section >> Who Can They Claim Against? What Can They Claim and When Can They Claim It?

A payment claim must be served on the company or person liable to make payment. It is recommended that the claimant keep a record of when payment claims were served, the method of service, and to whom they were served (eg. signed registered post dockets).

The RICS DRS has provided an example payment claim with the necessary factors to be considered valid under the act. Download >> Example Payment Claim

The RICS DRS also has an example payment claim validity flowchart, which shows graphically the necessary information to determine whether your claim is valid or not. It is available to >> download here

Once the claimant has served a valid payment claim on the respondent, the Act dictates a number of scenarios.

Payment of the claim should be received within the earlier of:

• The date for payment under the construction contract
• 10 Business days after the respondent has received the payment claim.

However, the other scenarios that may occur include:

• Within ten (10) business days from reciept of the payment claim, the respondent pays the claimant the claimed amount
• If the claimed amount is dispute, within the earlier of - (1) 10 business days from receipt of the payment claim, or (2) the time required by the relevant construction contract - the respondent must provide the claimant with a document that outlines the amount the respondent proposes to pay. This is known as the payment schedule. In order to be considered valid, the payment schedule must identify the payment claim to which it relates and states the amount the respondent is proposes to pay. If the payment schedule is less than the claimed amount, the reasons why this is so must be provided.

If the respondent does not pay the claimed amount by the due date for payment, nor provides a valid payment schedule, the respondent is then liable to pay the claimed amount. Refer to section >> No Valid Payment Schedule Provided.

If the respondent has provided a valid payment schedule but it is less than the claimed amount, the claimant has a number of options. These include:

• The claimant may accept the scheduled amount. The respondent must pay the amount that they have set out in the schedule without deductions.
• The claimant may apply for adjudication under section 21.a.i of the BCIP Act, within ten business days of receipt of the valid payment schedule. Refer to section >> Applying for Adjudication

If the respondent has provided a payment schedule but has not forwarded the scheduled amount by the due date for payment, then the claimant has access to the following options:

• The claimant may apply for adjudication under section 21.a.ii of the BCIP Act, within twenty business days after the due date for payment. Refer to section >> Applying for Adjudication
• The claimant may opt to suspend work or supply of related goods and services under section 33 of the Act. Refer to section >> Suspending Work

This situation arises when a claimant has put in a claim for a progress payment, but no schedule, nor full payment, has been received.

In order to be considered valid, a payment schedule must have the following aspects:

• Must identify the payment claim to which it relates
• Must state the amount of the payment, if any, the respondent proposes to make. This is the scheduled amount
• If the scheduled amount is less than the claimed amount , the schedule must state why the scheduled amount is less, and, if it is less because the respondent is withholding payment for any reason, the respondent's reasons for withholding payment are to be included.

An invalid payment schedule should be treated as if no payment schedule has been issued at all.

If the respondent has NOT provided a valid payment schedule, and has failed to pay the whole or any part of the claimed amount on or before the due date for payment, the claimant has a number of options. These include:

• The claimant may apply for adjudication under section 21.1.a.b of the BCIP Act, within 10 business days of receipt of the valid payment schedule. Through this route, the claimant will have to provide a Notice of Intent to Apply for Adjudication (>> Example Notice of Intent) to the respondent within 20 business days immediately following the due date for payment. This notice must state that the respondent may service a payment schedule on the claimant within 5 business days after receiving the claimant's notice. For more details, refer to the appropriate section in >> Applying for Adjudication.
• The claimant may opt to suspend work or supply of related goods and services under section 33 of the Act. Refer to section >> Suspending Work

The claimant gains the statutory right to suspend work if a valid payment schedule has not been provided, or a scheduled amount has not been paid. In regards to the Act, any expense or loss in relation to the suspension can be claimed by the Claimant. Also, a claimant who suspends work or the supply of related goods and services is not liable for any loss or damage suffered by the Respondent. Section 33 is the relevant section of the Act.

Prior to suspension, a Claimant must provide the Respondent with written notice of thier intention to suspend. Suspension may occur 2 business days after the notice has been reciepted by the repsondent. Furthermore, this right exists until the end of the period of 3 business days after the climant received payment from the respondent.

The RICS DRS have provided an example >> Notice of Intent to Suspend Work