How do I make a new payment claim if I’ve missed the BIFSOPA time limit?

What you can do to get paid, once the time limit has expired

If 25 days have gone by from your payment claim and you didn’t notice, you now have no payment and no payment schedule from the developer. The reality is, you have missed your chance for payment this month, because under BIFSOPA you cannot re-issue a payment claim in the same calendar month.  Where to from here?

Your options for getting paid

Now that BIFSOPA is in effect, you have:

1) Contractual rights

2) BIFSOPA rights 

If you haven’t received payment, you need to choose whether to take action through one, or do both.

In this news post the MDL Construction Law team run you through the consequences of each option, so that you can choose the right one for your situation.

Your contractual rights

If you decide to pursue your contractual rights, you have a few options to choose between:

  • Do you suspend works?
  • Do you issue notice of breach?
  • Do you terminate and walk away?

Each of these options has consequences – some very serious – which is why you should carefully discuss them with your lawyer before you decide on a course of action.

Your BIFSOPA rights

Note that you must take action immediately. You must issue a new form of tax invoice and payment claim that meets BIFSOPA requirements (not the former BCIPA requirements).

You then wait for a payment schedule (with a 25 day limit), or if none is forthcoming (or if you receive one and you want to dispute it), apply for adjudication to see if it is determined as a valid schedule.

Taking action on both your contractual and BIFSOPA rights

If you decide to simultaneously enforce your contractual rights and your BIFSOPA rights, you should talk to your lawyer before going down this path.

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Action to take for your future contracts under BIFSOPA

You should double check that your invoices are compliant under BIFSOPA. Note the new time limitations in your contractual administration systems, so you don’t get caught out next time.

As painful as it is to lose a month’s cash flow, it is still likely to be faster than working through contractual rights dramas.

Got questions about BIFSOPA? Talk to MDL

If you’re not sure how the new BIFSOPA will affect your business, McCarthy Durie Lawyers can help. Contact our experienced Building and Construction Law team on 3370 5100 or fill out the contact form here. 

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