What to Send Your NSW Construction Lawyer in the First 24 Hours of a Payment Dispute

Q: What should I send my lawyer in the first 24 hours of a NSW payment dispute?

Send the raw bundle: the contract as signed, every variation and instruction, the payment claim exactly as served, any payment schedule and its date of receipt, the complete email transmission record, your licence and insurance position, and your site diary and payment ledger. Attach one page of dates. Send no commentary.

Q: What happens if I serve a second payment claim for the same month in NSW?

Under sections 13(5) and 13(6) of the Building and Construction Industry Security of Payment Act 1999 (NSW), only one payment claim may generally be served per named month unless the contract expressly allows more. A second claim for the same month is a common jurisdictional objection and does not extend the window on the original claim.

Q: How long do I have to apply for adjudication in NSW?

It depends on what the respondent did. Where a payment schedule was served showing a shortfall, the application is generally due within 10 business days after receiving it. Where a schedule was served but the scheduled amount was unpaid, it is generally due within 20 business days after the due date. Where no schedule was served, a section 17(2) notice must first be served within 20 business days after the due date. The respondent then has 5 business days to serve a schedule, and the application must be made within 10 business days after that period ends. Confirm the pathway against section 17 before diarising the deadline.

John Merlo

21 hours ago

9 min read

Key Takeaways

Send the raw bundle, not a summary. The contract as signed, the payment claim exactly as served, any payment schedule and its date of receipt, the complete email transmission record — in the order they were created, plus one page of dates.
Freeze your communication. Every message you send to the other side before taking advice becomes evidence you cannot retract. Stop writing today.
If you are the respondent, your payment schedule is your only chance to raise reasons. Section 20(2B) of the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOP Act) generally stops you adding a reason for withholding later, and one-line reasons are usually lost.
Diary each deadline from the earliest date the document could arguably have been received, not from a later date a deeming clause might support, and do not serve a second payment claim for the same named month unless the contract expressly allows it.

The First 24 Hours Decide More Than You Think

You have just been served with a payment claim you believe is wrong — or you served one and the payment schedule has come back short. In the next 24 hours you will not win or lose this dispute on the law. You will lose it by sending one more email, tidying up one more project inbox, or serving one more claim. The job tonight is not advocacy. It is preservation, and the fastest way to start is to get early construction payment dispute advice on the raw file before anyone on your side writes anything else.

This is what to preserve, what to send, and what to stop doing today under the SOP Act.

Two dates control everything that follows, and neither is the date printed on the document. The first is the date the payment claim or payment schedule was actually received — not sent, and not the date a contractual deeming clause says it was received. The second is the date the construction contract was entered into. Contracts entered into on or after 21 October 2019 are governed by the monthly claim-entitlement rules in section 13(1A)–(1B) of the SOP Act. Contracts entered into before that date are still analysed under the former reference-date framework, where entitlement disputes are far more common. Get this fork wrong and an otherwise strong position can die on jurisdiction before anyone argues the merits.

Two dates, one diary entry

Write both dates down now, then work forwards. Section 14 gives a respondent the time set by the contract, or 10 business days after the claim is served — whichever expires earlier — to serve a payment schedule. Section 17 gives a claimant 10 business days after receiving a payment schedule showing a shortfall, or 20 business days after the due date where a scheduled amount is not paid, to lodge an adjudication application. Where no payment schedule was served, the claimant must first give a section 17(2) notice within 20 business days after the due date, which gives the respondent a further 5 business days to serve a schedule. These two windows are why tonight matters more than next week.

Why the clock starts at receipt, not at sending

That distinction is not theoretical. Where a claim is emailed as a link rather than an attachment, the respondent often argues the clock only started when the file was opened — and a payment schedule that lands "one day late" on the claimant's calculation can be argued to be on time on the respondent's. The party who can prove the actual moment of receipt, from the email header and the message metadata, is the party who controls the timeline. That is why the transmission record is the first document a lawyer asks for, and why it is the first thing you should preserve.

Practice note: The most common service dispute in NSW arises when a claimant emails a payment claim as a link rather than an attachment. If you are the claimant, you carry the burden of proving service. If you are the respondent, do not plan your payment schedule around a late-receipt argument: count from the earliest date the claim could arguably have been received, because a schedule found to be late leaves you liable for the full claimed amount under section 14(4). Either way, the first thing a lawyer needs is the transmission record — the header, the timestamp, the addresses, the attachment itself. Send that tonight.

What to Preserve, and What to Send, Tonight

The answer to "what do I send?" is more boring than most contractors expect: send the raw bundle. Not a summary. Not a chronology written from memory. Not screenshots. The actual files in the order they were created, plus one page of dates.

Preservation means three specific things: do not delete, do not edit, do not overwrite. That includes the email thread, the project messaging, the site diary, the variation instruction and any superseded version of a document. Where a document exists in two forms, keep both — the earlier version is often what proves what was known, and when.

The bundle to preserve and send

Preserve this	Because it decides
The construction contract as signed, plus every variation and instruction	Which claim-timing regime applies and what the parties agreed
The payment claim exactly as served	Whether the section 13 elements and the statutory endorsement are present
Any payment schedule you served or received, and its date of receipt	Default liability, and what reasons are still available later
The complete email transmission record, incl. headers and all project addresses	Valid service — usually the first jurisdictional battleground
Your licence details and any Home Building Compensation Fund position evidence	Whether you can recover for residential building work under the Home Building Act 1989 (NSW)
Retention and trust records, where the project is qualifying	Exposure if the party above you fails — see the Security of Payment Regulation 2020 (NSW), and whether the SOP Act applies at all (it does not apply to a contract with an owner who lives, or proposes to live, in the premises)
The site diary, program and payment ledger	Commercial context the other side will characterise for you

If you are unsure what in your particular file qualifies, that is the point at which early construction law advice is worth more than another weekend of drafting.

Service records — the evidence most claimants lose

The transmission record is the item most often incomplete by the time a lawyer sees the file, because it lives in someone's inbox rather than the project folder. Preserve the sent item, the received item, the delivery and read receipts if they exist, and every address the claim was sent to — the nominated contractual address, the address used in ordinary project correspondence, and any address adopted by conduct across the project. If multiple addresses were in play, the record of which one was used, and when, is itself the evidence.

How to send it

One email. Raw files attached — PDFs where they are already PDFs, otherwise native format. One page of dates: contract date, claim served date, schedule served date (if any), due date, today's date. No commentary, no admissions, no narrative of the dispute.

The Communication Freeze

For the next 24 hours, assume every message you send to the other side will be read aloud later by someone who is not on your side. That is not paranoia — it is how these files are actually run.

Stop the informal channel. No "we'll sort it out between us" emails. No undertaking to accept a reduced amount. No confirming a variation was approved when you are not certain it was. Unless a message is a genuine settlement communication that your lawyer has helped you frame as without prejudice, assume nothing you write now is confidential and nothing you write now can be withdrawn.

Practice note: Adjudicators work to tight statutory timeframes and will not do your work for you. That cuts both ways: a claimant cannot rely on the adjudicator to piece together a claim that was never properly described, and a respondent cannot rely on the adjudicator to find a reason for withholding that was never written down. The party whose position is properly documented in the statutory documents usually holds the advantage. Tonight is your last clean opportunity to document.

Three Ways Contractors Destroy Their Own Case

WARNING. Each of the moves below is made by someone who believes they are being helpful, responsive or commercial. Each one can be difficult or impossible to undo.

1. Emails that show you suspected insolvency

Where a party upstream later collapses and a liquidator pursues an unfair preference claim under section 588FA of the Corporations Act 2001 (Cth), the recipient's good faith defence under section 588FG turns on whether that party had reasonable grounds to suspect insolvency, judged by what it knew and what a reasonable person in its circumstances would have suspected. Contemporaneous emails complaining that the contractor "never pays on time" or "is clearly going under" are exactly the material that defeats the defence. If the party above you is deteriorating, that is a reason to take advice — not a reason to fire off speculative commentary. Keep your records accurate and factual, and remember that not writing a suspicion down does not change what a reasonable person in your position would have suspected. Where enforcement escalates, court proceedings and the recovery strategy need to be assessed together rather than separately.

2. A second claim against the same monthly entitlement

Under section 13(5)–(6) of the SOP Act, only one payment claim may generally be served in respect of each named month unless the contract expressly allows more. Serving a fresh claim for the same month to "fix" a defect is one of the fastest ways to hand the respondent a jurisdictional argument — and the new claim does not restart the clock on the original.

3. One-line reasons for withholding

If you are the respondent, the payment schedule is your only clean opportunity to state why you are withholding. Section 20(2B) generally prevents you raising in your adjudication response any reason not already in the schedule. "Defective works — deduct $80,000" tells an adjudicator nothing. An item, a location, the standard breached, a quantified deduction and the supporting quote tells them everything.

Running It Yourself vs Instructing a NSW Security of Payment Lawyer

	Running it yourself	Instructing a lawyer at the 24-hour mark
Best suited to	A single, clearly defined claim with clean service records and a respondent who served a compliant schedule	Any file where service is arguable, a jurisdictional point has been raised, or the amount is material to cash flow
Main risk	Missing a statutory window while working out the process — the windows are short and unforgiving	The cost of advice. The statutory windows keep running while you obtain it, so send the raw bundle rather than a summary
What you still must do	Preserve everything and diary the dates	Preserve everything and diary the dates
What you should not do	Correspond with the other side while deciding	Correspond with the other side while waiting for advice

If you want your file reviewed, contact Merlo Law and attach the bundle, not a description of it.

Conclusion

The first 24 hours are not about winning an argument. They are about making sure the argument is still available when you need it: the raw documents intact, the service record provable, the dates diarised, and nothing in writing you would have to explain later. Do that tonight and your position is preserved. Then decide who runs it. Speak with a NSW security of payment lawyer before you send anything further to the other side.

FAQs

What should I send my lawyer in the first 24 hours of a NSW payment dispute?

The raw bundle: the contract as signed, every variation and instruction, the payment claim exactly as served, any payment schedule and its date of receipt, the complete email transmission record, your licence and insurance position, and your site diary and payment ledger. Attach one page of dates. Send no commentary.

Do I need to send the original payment claim or just a copy?

Send the exact document that was served or received, in the form it was served — including how it was transmitted. A re-typed or reformatted version cannot prove what the other side actually received, and service is frequently the first jurisdictional issue raised.

Can I delete project emails after a payment dispute starts in NSW?

No. Delete nothing. Correspondence, including messaging applications and superseded documents, may be evidence in an adjudication or later court proceeding, and deleting it can be more damaging than its contents. Preserve the complete thread, including headers.

What happens if I serve a second payment claim for the same month in NSW?

Under section 13(5)–(6) of the SOP Act only one payment claim may generally be served per named month unless the contract expressly allows more. A second claim for the same month is a common jurisdictional objection, and it does not extend the window on the original claim.

How long do I have to apply for adjudication in NSW?

It depends on what the respondent did. Where a schedule was served showing a shortfall, generally 10 business days after receiving it. Where a schedule was served but the scheduled amount was unpaid, generally 20 business days after the due date. Where no schedule was served, a section 17(2) notice must first be served within 20 business days after the due date. The respondent then has 5 business days to serve a schedule, and the application must be made within 10 business days after that period ends. Confirm the pathway against section 17 before you diarise. General guidance is also available from Building Commission NSW. This guide states the law as at 29 September 2026.

This guide is for informational purposes only and does not constitute legal advice. For advice tailored to your specific circumstances, please contact Merlo Law