Progress Payments and Failing to Provide Supporting Statements

1 min read
SOP Act Supporting Statement

Supporting Statement under the SOP Act

In news for our clients in the construction industry, recent case law has highlighted the importance of providing a Supporting Statement with claims made under the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOP Act).

Whilst section 13(9) of the SOP Act is already quite clear on the definition of a Supporting Statement, that being it must require a statement that all subcontractors under the applicant have been listed and note whether paid or unpaid, the recent case of Central Projects Pty Ltd v Davidson [2018] NSWSC 523 now drives home the importance above requirement.

In that case, the respondent resisted that claim on the basis that the payment claim served by Central Projects (the applicant) was not accompanied by a supporting statement, which is considered mandatory, that met the requirements of s 13(7), (8) and (9) and, therefore, was not validly and effectively served on him.

Ultimately, Justice Ball still ordered in favour of the applicant, but only did so on the basis that the subcontractors unpaid invoices formed part of the payment claim as a whole and their identities were at least addressed in the payment claim. In Justice Ball’s ruling however, the point was reiterated that a supporting statement will be false or misleading in a material particular if it omits one or more subcontractors from the list of subcontractors and that omission is material.

It will also be false or misleading in a material particular if, contrary to the declaration, not all subcontractors have been paid (apart from those in respect of whom a dispute exists) and the amount owed to an unpaid subcontractor is material. In either case, if a head contractor knows that the supporting statement is false or misleading, the head contractor will commit an offence by serving the statement.

In summary, the SOP Act has many pitfalls, requirements and tight time frames to be mindful of. You must also be wary of section 13 of the SOP Act when making an adjudication application, and be sure to list and highlight your subcontractors, whether paid or unpaid, to avoid being in breach of the Act and committing an offence.

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Picture of Authored By<br>Reuben Hernandez

Authored By
Reuben Hernandez

Director Lawyer, PBL Law Group

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Anita Bradley has been an absolute dream to deal with. Anita's conveyancing skills and knowledge knows absolutely no boundaries along with her effective communication skills which has made selling and buying a completely stress free exchange for us. We recommend PBL Law to everyone looking for outstanding service. We will definitely be returning clients.
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PBL Law Group were fantastic. Anita from PBL worked with us closely during our property search and made the exchange and settlement process smooth and stress free. Highly recommended.
Gail Whitford
PBL handled my late mothers estate, they were very obliging and patient with any and all questions that we had, thank you to David , Sharon and the other staff that we dealt with, everyone was so easy to talk to and friendly .David came to the home where my Mother was living and helped her to get her will in order, Sharon helped us through the process of executing her wishes when the time came even doing a house call which was so much easier, thank you all so much
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I have experienced an excellent service from PBL (especially from Anita) during the sale of my recent property on Central Coast, and during the purchase of our current property in Sydney. Throughout many challengers, especially with the sale, Anita presented her very professional and knowledgeable conveyancer, positively solving all obstacles. "Above and Beyond" Award going to Anita!!! :-)
Amanda Reitzin
The five-star reviews are well-deserved. I needed a motion and a bylaw drawn up for urgent repairs of my strata unit and the AGM was in two weeks' time. My solicitor was friendly, efficient, knew what documents to ask for, and had all the paperwork prepared well within the timeframe. She also took the time to run through all the legalese and the different possible scenarios with me to make sure I understood. I am so glad to have found this firm and I will not hesitate to use their services again in future if the need arises.
Ricky Cooper
Anita is amazing! So attentive, approachable and communicates everything every step of the way. I have now bought and sold property with Anita and I cannot recommend her highly enough.
Ron Thomsen
Our Commercial Property conveyancing was handled very professionally. Anita’s experience and responsiveness was an asset in this transaction.
Trace M
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Tricia Wheatstone
For almost 18 months I have been a client of Alex Ilkin. Alex is very knowledgeable and professional and has consistently provided me with thorough, honest and well set out advice, including steering my case through appeal proceedings. He always worked for my best interests with integrity and compassion. I recommend Alex and his team at PBL.