Adjudication in NSW Explained: How to Win (or Survive) a Security of Payment Claim
Last reviewed: 12 August 2026
Jurisdiction: New South Wales, Australia
This guide provides general information only and is not legal advice. Legislative references are to the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOP Act) unless otherwise stated. Because Authorised Nominating Authority practices, service rules, time limits, and case law change, critical steps — especially service, time limits, and enforcement — should always be checked against the current legislation and current authorities before you act.
Key Takeaways
Adjudication under the SOP Act is a fast, statutory process for resolving construction payment disputes in New South Wales, built around strict business-day deadlines and procedural compliance. Used properly, it is one of the most effective tools available to recover payment for construction work and related goods and services — and one of the most dangerous to ignore if a claim lands on your desk.
A payment claim must be both validly made and validly served. If it is materially defective, or served in a way you cannot prove, the adjudication pathway can fail at the threshold before the merits are ever reached.
The respondent's payment schedule is the single most important defensive document in the entire regime. A late, inadequate, or missing schedule under section 14 of the SOP Act can crystallise the full claimed amount as a statutory debt and shut down almost every argument the respondent later wants to run in adjudication.
Which adjudication gateway you fall into — and therefore which deadline applies — is dictated entirely by how the respondent reacted to the payment claim. Get the gateway wrong under section 17 and you can lose the right to adjudicate that claim.
Adjudication delivers an interim, binding payment outcome under the "pay now, argue later" principle in section 32 of the SOP Act. It is not a final determination of the parties' contractual rights, and recent NSW authority confirms that overpayments can be clawed back later.
There is no general merits appeal from an adjudicator's decision. The challenge pathway is narrow and expensive, confined principally to judicial review for jurisdictional error — the adjudicator going beyond power, denying natural justice, or proceeding without a valid jurisdictional precondition.
Contents
Introduction
A $500,000 claim lands on a principal's desk with a fortnight to respond. That single image captures why adjudication is where the Security of Payment regime stops being theory and starts moving money. It is the mechanism a subcontractor uses when a head contractor stops paying and the project cannot wait months for a court to sort it out; it is the process that same principal suddenly finds itself defending, against the clock. In the 12 months to 30 June 2025, roughly a thousand payment disputes were pushed through NSW adjudication rather than the courts, with an average claim of around $569,000 — and, strikingly, just under half of all claimants across every size band walked away with 100% of what they claimed. For claimants, that is an emboldening statistic. For respondents, it is a warning.
This guide is written for the people who actually run these disputes commercially: directors, contracts administrators, subcontractor coordinators, and the businesses standing behind them. Because almost every point in adjudication helps one side at the expense of the other, this guide flags, wherever it matters, whether an issue favours the party making the claim or the party defending it. If you want the whole Security of Payment regime end to end — how progress-payment entitlements arise, the Contractors Debts Act, retention trusts, insolvency and preference clawback — start with our broader Security of Payment guide for NSW, which is the pillar this article sits beneath. For urgent matters, our NSW security of payment lawyers can advise on payment claims, schedules and adjudication. What follows here is deliberately narrower and deeper: the adjudication engine itself, from the moment a payment claim is served to the moment a determination is enforced or challenged. Everything the wider regime handles better is linked, not repeated — so if a topic is covered in more depth in the pillar, this guide sends you there rather than duplicating it.
The central message is simple and unforgiving. Adjudication rewards the party that treats every step as a deadline and a proof-of-service exercise, and punishes the party that treats it as paperwork. By the end of this guide you will understand how to build an application that survives a jurisdictional challenge, how to respond to one without handing away your defence, and how to convert a determination into cash.
Adjudication Timeline at a Glance
Every critical step in adjudication is measured in business days, and the whole sequence is driven by one thing: how the respondent reacts to the payment claim. The pillar sets out the full statutory deadline table for the regime as a whole; the version below is built specifically for the adjudication decision-tree, adding the "what happens if you miss it" consequence that decides whether you still have a live adjudication. Always confirm exact dates against your contract and the current Act.
Step | Who acts | The deadline |
Serve a payment claim (s 13) | Claimant | Generally from the last day of the named month in which work was done (or earlier if the contract allows); within 12 months of work last carried out |
Serve a payment schedule (s 14) | Respondent | Time set by the contract, or 10 business days after the claim is served — whichever expires earlier |
Due date for payment (s 11) | Respondent | As per contract, subject to statutory maximums (15 business days principal-to-head-contractor; 20 business days head-contractor-to-subcontractor) |
Apply for adjudication — schedule shows a shortfall (s 17(3)(c)) | Claimant | 10 business days after receiving the payment schedule |
Apply for adjudication — scheduled amount unpaid by due date (s 17(3)(d)) | Claimant | 20 business days after the due date for payment |
Serve a s 17(2) "second chance" notice — no schedule and claimed amount unpaid | Claimant | Within 20 business days after the due date; respondent then has 5 business days to serve a schedule |
Apply for adjudication — the "second chance" (no-schedule) path (s 17(3)(e)) | Claimant | 10 business days after the end of the 5-business-day period |
Serve an adjudication response (s 20(1)) | Respondent | Later of 5 business days after receiving the application, or 2 business days after receiving notice of the adjudicator's acceptance |
Make the determination (s 21(3)) | Adjudicator | Generally within 10 business days after the response is lodged or the response period ends (or after notice of acceptance if the respondent has no right to respond), unless extended by agreement |
Pay the adjudicated amount (s 23) | Respondent | Within 5 business days after the determination is served, or by any later date in the determination |
Notice of intention to suspend (s 27) | Claimant | Must allow 2 business days to pass after written notice before stopping work |
The takeaway is the same one that governs the entire regime: these windows are short, strict, and largely unforgiving. This is the day-one calendar rule — the discipline that runs through everything below: on either side of a claim, you calculate every downstream deadline the day the claim arrives, not the day one of them expires.
Understanding Adjudication in New South Wales
Adjudication is a rapid, interim dispute resolution process created by the SOP Act to keep cash moving through the construction chain. Rather than waiting a year or more for a court or tribunal to resolve a payment fight, a claimant can obtain an enforceable interim determination from an independent adjudicator, usually within weeks of applying. The philosophy is captured in three words that recur throughout this guide: pay now, argue later. The adjudicator decides how much is payable on an interim basis; the parties remain free to litigate the final contractual position afterwards.
What makes adjudication commercially powerful is precisely what makes it dangerous. It runs on statutory deadlines, not on the reasonableness of the parties. A respondent who ignores a claim for a fortnight can find the entire claimed amount has become a debt. A claimant who miscalculates a gateway can lose the right to adjudicate a perfectly good claim. The process rewards discipline and preparation, and it is entirely unsentimental about good intentions.
It is worth being clear about what adjudication is not. It is not a merits appeal system — there is no general right to have an adjudicator's decision reviewed because it is wrong. It is not a final determination of rights, so an adjudicated amount can later be adjusted or clawed back in final proceedings. And it is not a substitute for taking early advice: because the windows are measured in business days, the point at which specialist input adds the most value is when the claim first lands, not after a deadline has already passed.
When Does the SOP Act Apply?
Before adjudication is even on the table, the arrangement has to fall within the Act. The threshold question is simple: is your arrangement even covered? Usually it is. The SOP Act applies to a "construction contract" — broadly, any contract or arrangement under which one party agrees to carry out construction work, or to supply related goods and services, for another (sections 4, 5 and 6). That definition is deliberately broad. It captures commercial building, civil and infrastructure works, and a wide range of related supply and design services, and it does not require a formal written contract at all. As the New South Wales Court of Appeal confirmed in Claire Rewais and Osama Rewais t/as McVitty Grove v BPB Earthmoving Pty Ltd [2025] NSWCA 103, an entirely oral contract can attract the full machinery of the Act, including adjudication.
There are important boundaries. Drilling and extraction of minerals, oil, or gas are carved out (section 5(2)). Certain contracts where consideration is not calculated by reference to the value of the work performed can fall outside the regime — a point that proved decisive in the 2025 case of SE Ware Street v Kwik Flo, where an adjudicator initially found no jurisdiction because the arrangement fell within the section 7(2)(c) exception. And a corporation in liquidation cannot use the Part 3 payment-claim and adjudication machinery at all (section 32B), which is why insolvency status should be checked at the very outset.
Owner-occupier residential contracts entered into from 1 March 2021 are now generally within the Act, meaning builders can adjudicate against homeowners in a way that was not previously available. That expansion has made the licensing and insurance intersections discussed below far more commercially significant, because a large slice of residential work now runs through the same adjudication pipeline as commercial projects.
The Critical Link to Home Building Act Licensing and HBCF Insurance
This is the trap that quietly destroys otherwise strong residential claims, and it deserves attention before anyone drafts a payment claim. Under section 8(2) of the SOP Act, a person is not entitled to a progress payment if the construction contract does not comply with the licensing requirements in section 4 of the Home Building Act 1989 (NSW), or if it involves residential building work carried out in contravention of the insurance requirements in section 92 of that Act — the Home Building Compensation Fund (HBCF) cover, which is the insurance that protects a homeowner if the builder becomes insolvent, dies, or disappears. The HBCF and residential building regulation in NSW are administered by Building Commission NSW.
The commercial effect in adjudication is often brutal. An otherwise well-prepared application, served on time and beautifully particularised, can be reduced to nil simply because the contractor did not hold the right licence category or did not have the required HBCF certificate in place when it was needed. The adjudicator is not exercising discretion here; the entitlement itself does not exist. This does not necessarily extinguish every recovery avenue outside the Act — quantum meruit or other final-rights arguments may survive in separate proceedings — but it closes off the fast statutory route that made adjudication attractive in the first place.
The practical discipline is to treat licence category, the named licensee, and HBCF eligibility and timing as gating items to be checked before a residential payment claim is served or answered — not after a respondent raises them in an adjudication response, by which point it is too late to fix.
If you are unsure whether your licence category or HBCF position is in order for a residential project, that is a question worth resolving before a claim is served — a short conversation with our building and construction team now is far cheaper than a claim reduced to nil later.
Due Dates for Payment: The Hidden Trigger That Controls Everything
Contracts administrators tend to focus on claim dates and schedule deadlines, but the due date for payment is the quiet mechanism that drives two of the three adjudication gateways. Under section 11 of the SOP Act, payment is due as provided by the contract, subject to statutory maximums that the contract cannot exceed: generally no later than 15 business days after a claim is made where a principal pays a head contractor, and no later than 20 business days where a head contractor pays a subcontractor (with shorter defaults in some residential settings).
Why does this matter so much for adjudication? Because if the respondent serves a schedule but then fails to pay the scheduled amount by the due date, the claimant's adjudication clock runs from that due date (the section 17(3)(d) gateway). And if the respondent serves no schedule at all, the "second chance" notice pathway is also anchored to the due date. Miscalculate the due date and you miscalculate the entire downstream timetable. This is one of the most common sources of avoidable jurisdictional argument, and it is entirely within a claimant's control to get right.
Making and Serving the Payment Claim
The payment claim is the jurisdictional foundation on which everything else is built, and it fails at two distinct points: how it is drafted and how it is served. The first goes to whether the document qualifies as a statutory payment claim at all; the second goes to whether the claimant can prove it landed. Both the claim and the later application must clear the same service test, and the 2025 authorities show that service, not substance, is where good claims most often die.
The Foundation Document: Getting the Payment Claim Right
A valid adjudication is only ever as strong as the payment claim underneath it, because the claim is a jurisdictional foundation. If the claim is invalid, everything built on top of it can fall.
Under section 13 of the SOP Act, a payment claim must do three things: identify the construction work or related goods and services to which it relates, indicate the claimed amount, and state that it is made under the Act. That third element — the statutory endorsement in section 13(2)(c) — is mandatory and is one of the first things a respondent's lawyer will check. Omit it and the document risks failing as a statutory payment claim regardless of how commercially compelling it is.
Timing matters too. For contracts entered into on or after 21 October 2019, the old "reference date" concept no longer drives the entitlement. A claimant may generally serve a payment claim from the last day of the named month in which the work was carried out (or earlier if the contract allows), only one claim per named month unless the contract permits more, one further claim on termination, and — importantly — within 12 months of the work last being carried out (section 13(4)). For legacy contracts entered before that date, the older reference-date framework can still apply, so the first question with any claim is always: when was the contract made?
Here the recent case law is genuinely reassuring for claimants and sobering for respondents. In Manariti Plumbing Pty Ltd v Universal Property Group Pty Ltd [2025] NSWCA 135, a plumbing subcontractor served a $221,901 claim on a developer. It was supported by an invoice, a subcontractor's statement, and a spreadsheet that referenced prior invoices and set out costs, margins, and payments received. Notably, it was framed on a cost-plus basis that departed from the earlier fixed-price invoicing. The developer served no schedule, paid nothing, and then resisted summary judgment by arguing the claim was invalid: that it failed to identify the work, and that it was really a claim for damages or restitution rather than "for" construction work.
The Court of Appeal rejected both arguments and entered summary judgment for the full amount plus interest and costs. It confirmed three things that should shape how every claim is drafted and every schedule is decided.
First, work can be "reasonably identified" by attachments and cross-references to earlier documentation — including prior invoices — and a claim is only invalid where the failure to identify work is patent on its face; even though no prior invoices were referenced for a 12-day period within the overall claim, that deficiency was insufficient to prevent the work being reasonably identified or to invalidate the claim.
Second, the Act does not require a payment claim to be "for" construction work as a precondition of validity; whether the amount is truly payable is a merits question for the schedule and, if necessary, adjudication — not a validity question.
Third, and most importantly commercially, a respondent that fails to serve a schedule in time effectively forfeits the ability to resist the claim on those grounds in subsequent debt-recovery proceedings under the Act.
The lesson is blunt: relying on imperfections in a claim to justify not scheduling is a high-risk strategy that usually fails. If you think a claim is defective or overstated, the answer is to serve a properly particularised schedule saying exactly that — not to sit on your hands and hope a court will later agree the claim was invalid.
Where a head contractor serves a claim on a principal, the claim must be accompanied by a supporting statement in the approved form (section 13(7)–(9)), declaring the payment position of subcontractors. Failing to include it is an offence, and knowingly serving a false statement is a separate and more serious offence, both carrying executive liability exposure. Treat the supporting statement as a compliance document, not a clerical attachment.
The legal significance of a defective or misleading supporting statement should not be overstated. While non-compliance may have statutory consequences and may create separate regulatory exposure, the authorities concerning supporting statements should be distinguished from the Bitannia line of cases, which dealt with alleged misleading conduct in connection with the service of a payment claim and the creation of a statutory entitlement, rather than the content of a supporting statement itself.
Service Rules: The Procedural Trap That Can Void the Entire Process
If there is one area where good claims go to die, it is service. Section 31 of the SOP Act allows service by personal delivery, by lodging the document at the recipient's ordinary place of business, by post, by email to an address specified for service, by any method authorised by the regulations, or in the manner provided by the construction contract. The claimant bears the burden of proving valid service, and every layer of intermediation between "sent" and "received" is a layer a respondent will exploit if the timeline is tight.
The most instructive recent authority is Rewais v BPB Earthmoving (2025). BPB emailed a payment claim to the Rewais parties, who claimed not to have seen it for approximately seven weeks until it was brought to their attention by solicitors. The Court of Appeal ultimately held that service was valid on the date of sending, on two important footings. First, an email address can be "specified" for service through conduct — not only by express written agreement — where the parties have repeatedly used that address for project communications and invoicing. Second, drawing on section 13A of the Electronic Transactions Act 2000 (NSW), the claimant only needs to show the email was capable of being retrieved by the recipient; it does not matter that the recipient did not open it. That is a claimant-friendly outcome, but the case is a cautionary tale for everyone: the Rewais parties came perilously close to setting the determination aside, and the costs of the fight eroded the sum recovered. The safest position remains a written contract with clearly specified service addresses on both sides.
The second essential 2025 decision is Roberts Co (NSW) Pty Ltd v Sharvain Facades Pty Ltd (Administrators Appointed) [2025] NSWCA 161 (Roberts Co v Sharvain Facades), which deals with the after-hours service trap. A subcontract deemed documents sent after 5pm to be served at 9am the next business day. A payment claim arrived at 7:18pm on a Friday, and the head contractor calculated its schedule deadline from the following Monday — and served one day late. The primary judge held the deeming clause void under section 34 (no contracting out) because it purported to modify the operation of the Act. On appeal, however, the Court of Appeal found it unnecessary to finally determine the clause's validity, holding instead that section 14 permits parties to agree to a shorter period for serving a payment schedule, but not a longer one. As a result, the statutory 10-business-day period ran from actual service of the payment claim, irrespective of the deeming clause.
The commercial lesson for respondents is unambiguous: diary your payment-schedule deadline from actual receipt, take the most conservative interpretation available, and never rely on a deeming clause to buy yourself extra time.
Two practical service disciplines follow from these cases. First, attach the payment claim and supporting statement as PDFs directly to the email rather than sending a download link, because the theory that service only occurs when a link is opened becomes very real when a deadline is tight. Second, where a party operates multiple inboxes, serve all addresses that have been used for project correspondence and retain the full transmission record — because, as Rewais shows, a subsidiary address adopted by conduct can be perfectly good for service, cutting both ways.
Serving the Application, Not Just the Claim
The service discipline the 2025 cases demand of the payment claim applies with equal force to the adjudication application itself, and this is where an otherwise well-run claimant can still lose. Section 17(5) of the SOP Act requires that a copy of an adjudication application must be served on the respondent. Lodging with the ANA is not enough; the respondent must actually receive the application, and the safest position is that what is served on the respondent should match what was lodged — the same submissions and the same supporting documents. A claimant who lodges a full evidentiary bundle with the ANA but serves the respondent with a thinner package invites an argument that the respondent was denied the opportunity to respond to material the adjudicator went on to consider, which shades directly into natural-justice and jurisdictional-error territory. NSW authority has also confirmed that the method of serving the application must be a valid section 31 method: delivery of a USB stick, for instance, has been held not to constitute valid service. The practical rule is the same one that governs the claim — serve the complete application by a provable section 31 method, attach the documents themselves rather than a link, retain the transmission record, and conduct a document-by-document check that what the respondent received is what the ANA received.
The following table summarises the section 31 service methods by risk and proof burden, and should guide how you serve anything that carries a deadline — the payment claim, the schedule, the section 17(2) notice, and the application itself.
Method (s 31) | Risk level | What you must be able to prove | Practical note |
Personal delivery | Lowest | Delivery occurred, to whom, when | Safest for tight deadlines; retain a file note or witness |
Lodging at ordinary place of business | Low | The address is the recipient's ordinary place of business, and lodgement occurred | Useful where email is contested |
Post to ordinary/last-known address | Medium | Correct address; posting date; deemed-service timing | Build in postal delay; deemed receipt is not instant |
Email to a specified address | Medium | The address was "specified" (expressly or, per Rewais, by conduct) and the email was capable of retrieval | Attach PDFs, not links; keep the transmission record |
Method provided by the contract | Varies | Strict compliance with the contractual mechanism | A deeming clause cannot lengthen a statutory maximum (Roberts Co) |
The underlying point drawn from the 2025 authorities is that the claimant carries the burden of proof at every step. The method that is cheapest to use is often the most expensive to prove, and the party that documents service contemporaneously is the party that wins the jurisdictional argument.
The Respondent's Response and the Adjudication Application
Once a claim is served, the initiative shifts between the parties in a tightly sequenced exchange: the respondent must decide whether and how to schedule, and the claimant must then select the correct adjudication gateway and, if entitled, the respondent must answer. Each step is gated by what happened in the step before it, and a misstep at any point can shut a party out of the process entirely.
The Respondent's One Real Chance: The Payment Schedule
For a respondent, the payment schedule is the whole ballgame. The good news is that a respondent's entire defence usually comes down to getting one document right and on time — so a principal or builder who has just received a large claim is far from powerless, provided it moves quickly. Under section 14 of the SOP Act, a respondent who intends to pay less than the claimed amount must serve a payment schedule within the time fixed by the contract or within 10 business days after the claim is served, whichever expires earlier. The schedule must identify the claim it responds to, state the amount the respondent proposes to pay (the "scheduled amount"), and — critically — state the reasons for any shortfall.
Miss this window and the consequences follow almost automatically. The respondent becomes liable to pay the full claimed amount on the due date (section 14(4)), that amount is recoverable as a statutory debt (section 15), and the respondent's ability to participate in any adjudication is drastically curtailed. The CBEM Holdings Pty Ltd v Sunshine East Pty Ltd [2025] NSWCA 250 illustrates how little discretion there is. The principals paid amounts claimed under the Security of Payment regime, including a payment claim for which no payment schedule had been served in time and which they were therefore obliged to pay. The payments were later found to exceed the contractor's contractual entitlement. The principals ultimately recovered the overpayment through restitutionary proceedings, with the Court of Appeal emphasising the interim nature of Security of Payment payments and the availability of subsequent restitutionary adjustment under section 32.
The schedule is also the place where respondents most often undercut themselves through vagueness. Because a respondent generally cannot introduce reasons in adjudication that were not raised in the schedule, whatever is left out at this stage is usually lost for the entire dispute. "Defective works — deduct $80,000" tells an adjudicator nothing. A defensible schedule identifies the specific item, the location, the contractual or code standard allegedly breached, and a quantified deduction supported by a quote or assessment. Use the following as a model: "Item 14 — Level 3 bathroom waterproofing to units 301–304 fails to comply with AS 3740 and clause 8.2 of the subcontract. Water testing on 12 March 2026 identified membrane failures at floor-to-wall junctions. Estimated rectification $47,500 ex GST per ABC Waterproofing quote dated 14 March 2026 (attached). Amount withheld: $47,500." The difference is not cosmetic. Adjudicators working under tight statutory timeframes will not do a respondent's work for it, and an unparticularised reason is likely to be given little or no weight. The disciplined approach is to draft the schedule as though it were the adjudication submission itself.
The same discipline governs set-offs and cross-claims, which is where respondents most often assume they have more room than the Act allows. A back-charge, a delay claim, or liquidated damages can only reduce the adjudicated amount if it is raised as a reason for withholding in the schedule itself — quantified, and with its contractual basis stated. Left out of the schedule and produced for the first time in the adjudication response, it runs straight into the "no new reasons" rule in section 20(2B) and the adjudicator must disregard it, however meritorious it might have been. How far an adjudicator can go in actually determining a cross-claim that reaches beyond the four corners of the payment claim — a substantial liquidated damages claim, for instance — is a more contested question that turns on how the issue is framed and on the current authorities. But the threshold point is not in doubt: an unquantified, unexplained assertion of set-off gives the adjudicator nothing to act on, and a set-off omitted from the schedule is a set-off surrendered for the entire dispute.
Choosing the Right Gateway: The Adjudication Application
If the payment dispute is not resolved by the schedule, the claimant's next move is to apply for adjudication under section 17. This is the most deadline-sensitive step in the entire process, because which deadline applies depends entirely on how the respondent behaved. There are three gateways, and choosing the wrong one — or missing the window — removes the right to adjudicate that claim. Where the fight is genuinely about how the works should be valued rather than a clean debt, early dispute resolution advice can shape which pathway serves you best.
The first gateway (section 17(3)(c)) applies where the respondent served a payment schedule showing a shortfall. The claimant then has 10 business days after receiving the schedule to apply. The second gateway (section 17(3)(d)) applies where the respondent served a schedule but failed to pay the scheduled amount by the due date. The claimant then has 20 business days after the due date to apply. The third gateway (section 17(3)(e)) applies where the respondent served no schedule at all and did not pay the claimed amount. Here the claimant must first serve a section 17(2) "second chance" notice within 20 business days after the due date, giving the respondent a final 5 business days to serve a schedule; the adjudication application must then be lodged within 10 business days after that 5-business-day period ends. Notably, roughly half of all NSW adjudications are "second chance" adjudications, where claimants elect to adjudicate rather than pursue summary judgment despite no schedule having been served.
Because this pathway carries so much of the traffic, it is worth walking through it with dates. Assume a payment claim is served on Monday 2 March, the contract fixes payment 15 business days later, and the respondent serves no schedule and pays nothing.
The sequence then runs as follows:
Due date for payment: Monday 23 March (15 business days after the claim).
Section 17(2) "second chance" notice — deadline to serve: within 20 business days after the due date, so by around Monday 20 April. Say the claimant serves it earlier, on Wednesday 15 April.
Respondent's final chance to schedule: 5 business days after the notice, expiring Wednesday 22 April.
Adjudication application window (if the respondent still does nothing): opens Thursday 23 April and closes around Wednesday 6 May (10 business days).
Every one of those hops is a business-day count anchored to the one before it, which is why a single miscalculated due date cascades through the entire timetable. The disciplined practice is to build the whole sequence in a calendar the day the claim is served, not the day the notice is due.
The application must be made to an Authorised Nominating Authority (ANA). NSW does not have a central registrar; instead, applications go to one of the ANAs authorised by the State (the current list is maintained by Building Commission NSW), which then appoints an adjudicator. As at this guide's review date, the authorised nominating authorities include Adjudicate Today, the Australian Building & Construction Dispute Resolution Service, the Australian Solutions Centre, Expert Adjudication, the Master Builders Association of NSW, the Resolution Institute, and RICS Dispute Resolution Service. The application must be in writing, identify the payment claim and schedule (if any), be lodged within the relevant gateway window, and be accompanied by the applicable fee.
A word on withdrawal, because it produced a cautionary 2025 decision. In SE Ware Street Dev Pty Ltd v Kwik Flo Pty Ltd (later affirmed on appeal in Kwik Flo Pty Ltd v SE Ware Street Dev Pty Ltd), a claimant whose first adjudication produced a "no jurisdiction" outcome withdrew and re-ran the application before a different adjudicator, winning the second time. The court restrained enforcement of the second determination, holding that the first "no jurisdiction" ruling was itself a determination for the purposes of the SOP Act and that re-running the dispute was an abuse of process. The lesson is that a no-jurisdiction result is not a free reset; fresh entitlement analysis is required, and repetition alone is not a strategy.
Answering the Application — If You Still Can
Once an application is served, the respondent may lodge an adjudication response — but only if it cleared a critical hurdle earlier. Under section 20(2A), a respondent can lodge a response only if it provided a payment schedule within the time allowed by section 14(4) or section 17(2)(b). In other words, a respondent that failed to serve a schedule in time has no right to respond in the adjudication at all. This is the single harshest consequence of missing the schedule deadline, and it is why the schedule, not the response, is the respondent's real defence.
Where a response is permitted, it must be lodged quickly under section 20(1): by the later of 5 business days after receiving the application, or 2 business days after receiving notice that the adjudicator has accepted the appointment. And under section 20(2B), the response cannot raise any reason for withholding payment that was not already included in the payment schedule. This "no new reasons" rule is the reason the schedule must be comprehensive from the outset — it prevents claimants being ambushed with fresh arguments and keeps the process fast.
Given how compressed these windows are, this is usually the point at which a respondent should already have advice in hand rather than seeking it. The response is the last opportunity to shape the adjudicator's view, and it must be built entirely from foundations laid in the schedule.
Valuation and the Determination
This is where the adjudicator does the substantive work: fixing the value of the construction work, resolving retention, and confining the decision to what the Act permits. Understanding the valuation rules and the limits on the adjudicator's power is what separates a claim that recovers its full worth from one that is discounted — and what tells a losing party whether a challenge is even arguable.
How Construction Work Is Valued in Adjudication
An adjudicator does not simply pick a number between the claimed amount and the scheduled amount. Section 10 of the SOP Act supplies the valuation rules, and understanding them is what separates a claim that recovers its full value from one that is discounted. Construction work is to be valued in accordance with the contract, or, if the contract makes no express provision, having regard to the contract price, any other rates or prices in the contract, any variation agreed between the parties, and — where the work is defective — the estimated cost of rectifying the defect. Related goods and services are valued on a similar basis under the same section.
Three practical consequences flow from this for the parties.
First, before an adjudicator can value anything, there is often a threshold fight about whether the contract even supplies a valuation mechanism at all. Section 10 directs the adjudicator to value the work in accordance with the contract, and only where the contract makes no express provision does the statutory fallback engage — the contract price, other rates or prices in the contract, agreed variations, and, where work is defective, the estimated cost of rectification. Parties routinely dispute whether a particular schedule of rates, bill of quantities, or lump-sum breakdown was intended to govern the specific work in issue, and settling that preliminary point can decide the whole adjudication before a single figure is valued. The claimant should identify, and be ready to defend, exactly which limb of section 10 it says applies.
Second, variations are where most valuation fights are won and lost, and the rule is simpler than it looks: if a variation was agreed, the agreed price wins; if it was not, you have to prove two things before you are paid a cent — that the work was actually directed, and what it was worth. In technical terms, where a variation was not agreed the adjudicator must first decide whether it was in fact directed and falls within the contract's variation machinery (or is otherwise payable at a reasonable rate) before it can be valued at all — and the quality of the contemporaneous records (site instructions, dockets, correspondence) usually decides both questions. A claimant who cannot evidence direction and value should expect the adjudicator to value the disputed variation at nil.
Third, valuation is constrained by what is properly before the adjudicator under the statutory scheme. As discussed in the next section, disputes can arise about whether particular submissions or documentation have been duly made and therefore may be considered. Although Builtcom confirms that a claimant is entitled to include submissions and supporting documentation with an adjudication application, and rejects a rigid Cardno-style rule that material is automatically excluded merely because it was not included with the payment claim, the case also illustrates the commercial risk of leaving significant evidentiary detail until that stage. The prudent discipline is therefore to include, wherever reasonably possible, the core valuation case — quantities, rates, variation evidence, and responses to anticipated defects — in the payment claim itself.
There is also a mirror-image risk that cuts in the claimant's favour and is worth understanding as a challenge point. Valuation is not a discretionary courtesy; it is the adjudicator's central statutory task. Where a respondent has properly put defects and a quantified rectification cost before the adjudicator, section 10(1)(b) obliges the adjudicator to have regard to that estimated cost — but equally, an adjudicator who accepts defects exist yet simply fails to value them, or who ignores the applicable contractual valuation mechanism or a materially significant item altogether, may have failed to perform the very function the Act requires. That failure can, in an appropriate case, support a jurisdictional-error argument on review. The lesson runs both ways: respondents must quantify defects to get the deduction, and claimants faced with an adjudicator who has plainly refused to engage with the valuation task should not assume the "no merits appeal" rule leaves them without a remedy.
Retention Within an Adjudication
Retention is one of the most frequently contested line-items in a progress claim, and it is valued inside adjudication like any other component of the payment claim. Where a respondent withholds retention, that withholding is only as good as the schedule that supports it: the schedule should identify the amount retained and the contractual basis for retaining it, and where the claimant says retention is due for release, the application should put the release conditions squarely in issue. Because NSW now imposes a retention money trust regime on certain projects, a retention position that does not comply with the applicable trust and release requirements is exposed, and a bare "retention withheld" line with no contractual anchor is as weak in adjudication as any other unparticularised reason. The detailed mechanics of the retention trust framework — thresholds, trust-account obligations, and release timing — are covered in our broader Security of Payment guide; the point for adjudication is narrower: treat retention as a valued item that must be justified in the schedule, not as an automatic entitlement the adjudicator will assume.
Inside the Determination: What the Adjudicator Can and Cannot Decide
The adjudicator's task under section 22 is to determine the amount of the progress payment (the "adjudicated amount"), the date on which it became or becomes payable, and the rate of interest payable. In doing so, the adjudicator is confined to a defined set of considerations: the provisions of the Act, the construction contract, the payment claim and schedule together with their submissions, and the results of any inspection. The determination must be in writing and must include reasons unless the parties agree otherwise. Under section 21(3), it is generally due within 10 business days after the adjudication response is lodged or, if none is lodged, after the response period ends — or, if the respondent has no right to respond, after notice of the adjudicator’s acceptance is served on the parties — unless the parties agree to extend.
A recurring battleground is what material the adjudicator can and cannot take into account. Historically, much of the debate stemmed from the NSW Supreme Court's decision in Cardno, but the current appellate guidance is found in Builtcom. Under section 22(2)(c), an adjudicator may consider only the payment claim together with submissions "duly made" by the claimant — a limit designed to protect the respondent from being ambushed by material it never had a chance to answer in its schedule (the same policy behind the "no new reasons" rule in section 20(2B)).
Builtcom Constructions Pty Ltd v VSD Investments Pty Ltd as trustee for the VSD Investments Trust (No 2) [2025] NSWCA 134 (Builtcom) shows how sharp that limit can be. Builtcom relied on substantial additional material supplied only with its adjudication application, not with its payment claim. The adjudicator applied the so-called Cardno test — derived from the earlier decision in John Holland Pty Ltd v Cardno MBK (NSW) Pty Ltd [2004] NSWSC 258 — asking whether the new material would have changed the respondent's payment schedule and, concluding it would, refusing to consider a large part of the claim. All three Court of Appeal judges agreed that a strict application of the Cardno test was wrong in law: section 21(4) lets an adjudicator call for further submissions, and section 17(3)(h) expressly lets a claimant include the submissions and documentation it chooses, so a rigid counterfactual test has no place in the scheme. To that extent, Builtcom is now the operative appellate authority on the treatment of material first provided with an adjudication application.
But — and this is the point that matters commercially — the majority (Leeming JA, Free JA agreeing) held that this error of law was not jurisdictional, because deciding whether a submission is "duly made" is a task the Act entrusts to the adjudicator; getting it wrong does not, without more, invalidate the determination. Adamson JA dissented, finding the adjudicator had misapprehended his task and thereby fallen into jurisdictional error. The determination stood, and VSD was liable for the $8.5 million awarded.
The lesson for claimants is unambiguous and expensive to learn the hard way: an error of law in your favour will not necessarily rescue you, and an error against you will not necessarily be reviewable. Equally, Builtcom does not establish a rigid rule that all supporting material must accompany the payment claim or that material first provided with an adjudication application is necessarily inadmissible. Rather, the case demonstrates the commercial risk of leaving important substantiating material until the adjudication application, because disputes may then arise about the scope and treatment of that material. The prudent course remains to place, wherever reasonably possible, the core substance of the claim — including quantities, rates, variation evidence, and key supporting documentation — within the payment claim itself.
Adjudication fees are dealt with separately under section 29, and where a claimant has paid the respondent's share and not been reimbursed, that unpaid share can be added to the adjudicated amount via the certificate under section 24(5).
Recovery, Enforcement and Challenge
A determination is not money, and this section covers everything that happens after it issues: the alternative of suing for the debt outright, converting a determination into an enforceable judgment, applying commercial pressure through suspension, and the narrow circumstances in which a determination can be challenged. The recurring theme is that delay and error at this stage are almost always self-inflicted.
Adjudicate or Sue? The Statutory Debt Alternative Under Section 15
Adjudication is not the only statutory route to the money, and for one common fact pattern it is often not the fastest. Where a respondent serves no payment schedule and does not pay, or serves a schedule and then fails to pay the scheduled amount by the due date, the claimant has a direct alternative under section 15 of the SOP Act: recover the unpaid amount in court as a statutory debt, rather than running it through adjudication. This is the pathway the guide has already flagged when it noted that roughly half of all NSW adjudications are "second chance" adjudications where a claimant elects to adjudicate despite no schedule having been served — section 15 is the road not taken in those cases, and every claimant should make that election deliberately rather than by default.
Under section 15(2), where a respondent becomes liable to pay the claimed amount because it failed to provide a payment schedule and has not paid by the due date, the claimant may recover that unpaid amount as a debt in any court of competent jurisdiction. The commercial force of the section lies in section 15(4): in those proceedings, judgment in favour of the claimant is not to be given unless the court is satisfied of the existence of the circumstances entitling the claimant to judgment, and — critically — the respondent is not entitled to bring any cross-claim against the claimant or to raise any defence in relation to matters arising under the construction contract. In other words, a respondent that missed the schedule deadline cannot litigate the contractual merits of the payment dispute in the debt proceedings any more than it can in adjudication; the contest is generally confined to the statutory preconditions for recovery, subject to the limited possibility identified in Bitannia that a defence directed to the creation or enforcement of the statutory entitlement itself may fall outside the expression "matters arising under the construction contract". Section 16 provides the equivalent debt route where a schedule was served but the scheduled amount went unpaid.
The strategic choice between the two pathways turns on a handful of factors. Where no schedule was served and the debt is clean, court recovery by summary judgment under section 15 is frequently faster, cheaper, and less exposed to jurisdictional skirmishing than adjudication, because there is no application to particularise, no adjudicator to appoint, and no "duly made" material fight of the kind seen in Builtcom. Where the works are ongoing, or the amount genuinely payable is contestable, adjudication is usually preferable, because an adjudicator actually values the work and that interim valuation carries commercial weight into later payment cycles in a way a bare debt judgment does not. One important qualification: the section 15(4) bar is not absolute at the margins. In Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2006] NSWCA 238, the Court of Appeal held that a defence based on misleading or deceptive conduct was not necessarily excluded by section 15(4)(b)(ii), because the alleged conduct related to the creation and enforcement of the statutory entitlement rather than a matter arising under the construction contract. The decision should not be read as establishing that every statutory cause of action may be raised in section 15 proceedings. Rather, it illustrates that a defence directed to the validity or enforceability of the statutory payment process itself may, in an appropriate case, fall outside the prohibition on defences concerning matters arising under the construction contract.
The disciplined practice, therefore, is to decide the pathway the moment the schedule deadline passes with no schedule and no payment: if the money is the only objective and the debt is clean, section 15 summary judgment is often the sharper tool; if the relationship is live or the valuation is contested, adjudication earns its keep.
Factor | Adjudication (s 17) | Statutory debt recovery (s 15) |
Precondition | Valid claim + correct gateway under s 17 | Valid claim; no schedule (s 15) or scheduled amount unpaid (s 16) |
Respondent's ability to defend on the merits | Confined to reasons in the schedule (s 20(2B)); none at all if no schedule (s 20(2A)) | Cannot raise any cross-claim or contract-based defence (s 15(4)) |
Does anyone value the work? | Yes — adjudicator values under s 10 | No — court confirms the debt, it does not value |
Speed | Fast statutory timetable; weeks to determination | Summary judgment can be very fast where debt is clean |
Exposure to jurisdictional challenge | Higher — service, "duly made" material, gateway | Lower — confined to statutory preconditions |
Best fit | Ongoing works; contested value; schedule served | Completed works; no schedule; clean debt |
The bottom line: clean debt, completed job, and no schedule served? Sue under section 15. Live relationship or genuinely contested value? Adjudicate.
Turning a Determination Into Cash: Payment and Enforcement
Winning the determination is only half the job; the money still has to be recovered. Under section 23, the respondent must pay the adjudicated amount within 5 business days after the determination is served, or by any later date the determination fixes. If it does not, the enforcement machinery is quick and deliberately claimant-friendly.
The claimant requests an adjudication certificate from the ANA under section 24 and files it, together with an affidavit confirming the amount remains unpaid, as a judgment for a debt in a court of competent jurisdiction under section 25. Registration is largely an administrative filing rather than a contested hearing, which is why claimants who have their affidavit ready can move from an unpaid determination to an enforceable judgment in a matter of days. The lag that catches people out is rarely the court — it is delay in obtaining the certificate or a defect in the affidavit. Once judgment is entered, ordinary execution tools such as writs and garnishee orders become available.
Where the immediate contracting party is distressed but the project remains funded, the upstream tools in the wider regime become important: the payment withholding request to the principal under sections 26A–26E, and direct recovery from the principal via a debt certificate under the Contractors Debts Act 1997 (NSW). Those mechanisms, along with statutory demands and retention-trust protections, are covered in our broader Security of Payment guide and are beyond the scope of this adjudication-focused piece.
In practice, the recovery sequence runs in a fixed order, and moving through it without drift is what turns a determination into cash. The claimant pays the adjudicated amount into the timeline: request the certificate from the ANA (section 24), file it with a supporting affidavit as a judgment debt (section 25), and, where recovery from the immediate respondent looks doubtful, layer the upstream tools on top — a payment withholding request to freeze funds at the principal (sections 26A–26E) and, once judgment is secured, a debt certificate under the Contractors Debts Act to redirect payment from the principal directly. The bottleneck is almost never the court; it is delay in obtaining the certificate or a defective affidavit. The detailed mechanics of those upstream tools, together with statutory demands, retention-trust protections, and unfair-preference clawback risk, are covered in our broader Security of Payment guide.
Suspending Work for Non-Payment
A claimant who is not paid a scheduled or adjudicated amount by the due date has a statutory right to suspend work under section 27 — a genuine commercial lever, provided it is exercised carefully. The claimant must first serve written notice of its intention to suspend and then allow 2 business days to pass before ceasing operations. The Act protects a claimant who validly suspends from liability for loss or damage suffered by the respondent (section 27(3)), and where the respondent removes work from the contract during a valid suspension, the respondent is liable for the resulting loss or expense (section 27(2A)). Suspension is powerful precisely because it hurts, but the timing requirements are strict at both ends — the 2-business-day notice period before stopping, and the 3-business-day window to resume after payment — and getting either wrong can convert a lawful suspension into a repudiation of the contract.
The suspension right is not open-ended once payment arrives. Under section 27(2), the right to suspend exists only until the end of the period of 3 business days immediately following the date on which the claimant receives the amount owed, which in practical terms means the claimant must be ready to resume work within that 3-business-day window once it is paid. A claimant that stays off site beyond that period is no longer exercising a statutory right and re-exposes itself to the very breach and repudiation risk the suspension mechanism was protecting it from. Any loss and expense flowing from the period of valid suspension can itself be pursued as part of a later claim.
Challenging an Adjudicator's Determination: Judicial Review
There is no general merits appeal from an adjudication determination. You cannot have a determination overturned simply because the adjudicator got the numbers wrong or reached a conclusion you disagree with. The only real avenue is judicial review in the Supreme Court for jurisdictional error — the adjudicator exceeding power, denying natural justice, failing to consider something the Act requires, or proceeding without a valid jurisdictional precondition (such as a valid claim, valid service, or a claimant not in liquidation).
Even where jurisdictional error is established, relief is not guaranteed. Under section 32A, a court may sever the parts of a determination affected by jurisdictional error and leave the balance on foot. And the 2025 decisions confirm just how reluctant courts are to interfere. In Builtcom, an error of law that was not jurisdictional was not enough to disturb the determination. In DECC Credit Pty Ltd v Australia Wide Lining Pty Ltd [2025] NSWSC 826, a respondent seeking to restrain enforcement of an adjudication determination largely failed, despite alleging both significant defects in the adjudication determination and a risk that the claimant would be unable to repay the money if the challenge ultimately succeeded. The court lifted most of the injunction and emphasised that the SOP Act's "pay now, argue later" policy means enforcement will rarely be restrained absent strong evidence of insolvency risk or a compelling jurisdictional challenge.
It is worth distinguishing two different ways insolvency intersects with adjudication, because they cut in opposite directions. DECC Credit concerns a respondent seeking discretionary relief to restrain enforcement of an adjudication determination on the basis of alleged adjudicator error and the asserted risk that the claimant may not be able to repay the money later. In that context, the courts remain reluctant to interfere absent cogent evidence of insolvency risk.
The harder gate sits on the other side. Unlike the discretionary stay question considered in DECC Credit, section 32B imposes a jurisdictional prohibition: a corporation in liquidation cannot serve a payment claim or take action to enforce one, including making an adjudication application.
A determination obtained by a claimant that was in liquidation at the relevant time is therefore vulnerable at the jurisdictional-precondition level, not merely on the balance-of-convenience discretion that governs a stay. This is why insolvency status is not just an outset checklist item but a live challenge point: a respondent facing enforcement should confirm the claimant's solvency status as at the date of the claim and the application before assuming the only available argument is a discretionary stay. In DECC Credit itself, the respondent failed to establish a real insolvency risk, with the court finding the evidence insufficient to justify continuing most of the injunction. Stays are the exception, not the rule. The court's power to grant a stay of a section 25 judgment remains available, but must be exercised consistently with the Security of Payment regime's strong policy favouring prompt payment and enforcement. Though Black Label Developments Pty Ltd v McMenemy [2025] NSWCA 114 shows they remain available in genuinely exceptional circumstances. There, the Court upheld a stay in the context of an owner-occupier residential building dispute where the homeowner had a strong prima facie case that a deed of variation underpinning the adjudication was void or unenforceable by reason of alleged duress, undue influence and unconscionable conduct. The stay was granted on condition that the judgment sum be paid into court.
The disciplined approach for a respondent is to lead with the single strongest jurisdictional point, articulate precisely why the statutory precondition was not satisfied, and prove it with documents — not to throw every conceivable objection at the wall, which usually dilutes the one argument with real prospects.
Practical Guidance
The preceding sections explain how the regime works; this one distils it into what each party should actually do. Separate playbooks for claimants and respondents set out the disciplines that consistently separate full recoveries from discounted ones, followed by the clawback and insolvency realities that both sides tend to underestimate once they think the risk has passed.
The Claimant's Playbook
For a claimant, adjudication rewards preparation done before the dispute crystallises, not after. Six disciplines consistently separate full recoveries from discounted ones. Confirm the contract date first, because it decides whether the modern monthly-claim rules or the legacy reference-date framework apply. Check licensing and HBCF position before serving any residential claim, because section 8(2) can reduce an otherwise perfect claim to nil. Build the valuation case as fully as practicable within the payment claim, including quantities, rates, variation evidence, and answers to anticipated defects. While Builtcom confirms that claimants may provide submissions and supporting documentation with an adjudication application, and rejects a strict Cardno-based exclusionary approach, it also demonstrates the commercial risk of leaving important evidentiary material until that stage. Serve in a way you can prove, attaching PDFs and retaining transmission records across every project inbox. Diarise the whole gateway sequence the day the claim goes out, so the due date, the section 17(2) window, and the lodgement window are calculated once and correctly. And move promptly from determination to certificate to judgment, because delay in enforcement is almost always self-inflicted.
The Respondent's Playbook
For a respondent, the entire defence lives or dies on the payment schedule, not the adjudication response. The first and most important rule is to diarise the schedule deadline from actual receipt of the claim, take the most conservative interpretation of any deeming clause (which Roberts Co confirms cannot buy you extra time), and never let the window pass — because section 20(2A) can shut a non-scheduling respondent out of the adjudication entirely. The second rule is to make the schedule comprehensive, because section 20(2B) bars any reason not raised in it: identify every ground for withholding, tie a quantified figure to each, and attach the supporting material. The third is to resist the temptation to gamble on the claim's technical validity instead of scheduling; Manariti shows where that road ends. If the claim genuinely lacks a jurisdictional foundation — served before entitlement, outside the timing window, by a claimant in liquidation (section 32B bars a corporation in liquidation from serving a claim or applying for adjudication at all), or missing the mandatory section 13(2)(c) endorsement — lead with that single strongest point and prove it, rather than diluting it among weaker objections.
Interim, Not Final: The Clawback Reality
It is essential — for both sides — to remember that adjudication produces an interim result. Under section 32, the "pay now, argue later" policy means that paying an adjudicated amount does not end the commercial contest. A party can later pursue restitution or rebalancing in final-account or court proceedings if the ultimate contractual position differs from the interim determination. CBEM Holdings v Sunshine East Pty Ltd [2025] NSWCA 250 is the current textbook illustration: principals who had paid amounts under the Security of Payment regime successfully recovered overpayments through restitution once the true contractual entitlement was determined. The Court of Appeal held that section 32(3) expressly contemplates restitutionary adjustment of amounts paid under or for the purposes of the Act, reinforcing the interim nature of the "pay now, argue later" regime.
There is a corresponding insolvency risk that recovery-focused claimants should keep in view. A subcontractor that aggressively pursues adjudication and statutory demands against a head contractor that later collapses can find a liquidator characterising that very conduct as evidence it suspected insolvency — a difficult position when defending an unfair preference claim. This is a genuine and often underappreciated exposure, and it is examined in detail in our broader Security of Payment guide.
Practical Closing Observations
A few themes recur across the current NSW landscape and repeatedly decide real disputes. Service still turns on the margins: Rewais and Roberts Co v Sharvain between them are why the service disciplines set out earlier in this guide — diary from actual receipt, serve every project inbox, keep transmission records, distrust after-hours deeming clauses — remain the difference between a claim that survives and one that fails at the threshold. Payment-claim perfectionism is a weak respondent strategy: Manariti confirms a claim need only reasonably identify the work and amount, so a respondent who gambles on technical defects instead of serving a proper schedule courts summary judgment. The schedule is everything for a respondent, because section 20(2A) can shut a non-scheduling respondent out of the adjudication entirely. And no-jurisdiction outcomes are not clean resets, as Kwik Flo makes plain — fresh entitlement analysis is required, and re-running the same dispute risks an abuse-of-process finding.
Above all, the courts continue to decide these cases by reference to the underlying policy of the Act, sometimes against claimants and sometimes against respondents. Parties who treat adjudication as a set of forms rather than a contested interim code keep losing money after they thought the legal risk had passed.
Conclusion
Adjudication under the SOP Act is the fastest, most commercially potent tool available for resolving construction payment disputes in New South Wales — and one of the least forgiving of error. Its power flows from strict business-day deadlines, rigid service requirements, and a "pay now, argue later" philosophy that the courts continue to enforce robustly. For claimants, that means a well-founded, properly served, and correctly timed application can convert an unpaid invoice into an enforceable judgment within weeks. For respondents, it means the payment schedule — not the adjudication response — is the real line of defence, and that missing a single deadline can crystallise liability with no hearing and no second chance.
The recurring commercial lesson is that adjudication rewards preparation and punishes drift. Confirm the contract date and entitlement, draft a section 13-compliant claim, serve it in a way you can prove, and calculate your gateway with care. Respondents must schedule comprehensively and on time, treating the schedule as though it were the adjudication itself. Because every deadline in this guide is measured in business days, the value of advice drops with each day you wait — and a window closed is a right lost. If a payment claim has just landed on your desk, if you need to issue one, or if you are chasing an unpaid determination, that is the moment to act, not after a deadline has expired. Contact our team now for tailored advice on protecting your position while you still have every option open.
FAQs
What is adjudication under the Security of Payment Act in NSW?
Adjudication is a fast, statutory dispute-resolution process under the SOP Act that allows a party who has carried out construction work or supplied related goods and services to obtain a rapid, interim determination of a payment dispute from an independent adjudicator, usually within weeks. It reflects the Act's "pay now, argue later" policy and keeps cash flowing while final contractual disputes are resolved separately.
How long do I have to apply for adjudication in NSW?
It depends on how the respondent reacted to the payment claim. If a schedule showed a shortfall, you generally have 10 business days after receiving it (section 17(3)(c)). If a schedule was served but the scheduled amount was not paid by the due date, you generally have 20 business days after the due date (section 17(3)(d)). If no schedule was served, you must serve a section 17(2) "second chance" notice within 20 business days of the due date, and then apply within 10 business days after the respondent's 5-business-day period expires (section 17(3)(e)).
Can a respondent take part in adjudication if it did not serve a payment schedule?
Largely no. Under section 20(2A), a respondent can lodge an adjudication response only if it served a payment schedule within the time allowed. A respondent that missed the schedule deadline generally cannot respond in the adjudication and faces the full claimed amount, which is why the schedule is the respondent's real defence.
Does a payment claim have to be perfect to be valid?
No. As the Court of Appeal confirmed in Manariti Plumbing v Universal Property Group (2025), a payment claim need only reasonably identify the construction work and the amount claimed, and state that it is made under the Act. Relying on minor defects in a claim as a reason not to serve a payment schedule is a high-risk strategy that often results in summary judgment against the respondent.
Can I serve a payment claim by email in NSW?
Yes, where the email address is one specified for service — which, following Rewais v BPB Earthmoving (2025), can be established by the parties' conduct in using that address for project communications, not only by express agreement. Service is generally effective when the email is capable of being retrieved, regardless of whether the recipient opens it. The safest practice is a written contract specifying service addresses, PDFs attached directly to the email, and full transmission records retained.
Can an adjudication determination be appealed?
There is no general merits appeal. The only real avenue is judicial review in the Supreme Court for jurisdictional error, and even then relief is discretionary. Consistent with the "pay now, argue later" policy, courts are generally reluctant to restrain enforcement of an adjudication determination absent a sufficiently strong jurisdictional challenge or compelling evidence that payment would cause irreparable prejudice. A court may sever parts of a determination affected by jurisdictional error under section 32A while leaving the rest on foot.
Is an adjudicated amount the final word on what I owe?
No. Adjudication is interim. Under section 32, a party can later pursue restitution or rebalancing in final proceedings if the ultimate contractual position differs. In CBEM Holdings v Sunshine East (2025), a principal successfully clawed back overpayments made under the Act once a court determined the true value of the work.
Should I adjudicate or sue for the debt if the respondent served no payment schedule?
Either is available, and the choice is strategic. If the works are complete and the debt is clean, recovering the claimed amount as a statutory debt under section 15 by summary judgment is often faster and cheaper, because the respondent cannot raise any cross-claim or contract-based defence (section 15(4)). If the works are ongoing or the value is genuinely contested, adjudication is usually preferable, because an adjudicator actually values the work and that valuation carries into later payment cycles. Take advice before running both pathways for the same claim.
How is retention dealt with in an adjudication?
Retention is valued as a component of the payment claim. A respondent withholding retention must justify it in the payment schedule with a clear contractual basis, and a claimant seeking release should put the release conditions in issue in the application. Because NSW imposes a retention money trust regime on certain projects, a non-compliant retention position is vulnerable, and an unparticularised "retention withheld" line is as weak as any other unsupported reason.
How long does adjudication take from start to finish?
Faster than most people expect. Once an application is lodged and an adjudicator accepts the appointment, the determination is generally due within 10 business days after the adjudication response is lodged or the response period ends (or after notice of acceptance if the respondent has no right to respond), unless the parties agree to extend, and the respondent must then pay within 5 business days of service. Add the gateway and response windows and a straightforward adjudication commonly runs from application to enforceable determination within a matter of weeks — which is precisely why front-loading your preparation before you lodge pays off.
This guide is for informational purposes only and does not constitute legal advice. For advice tailored to your specific circumstances, please contact Merlo Law
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