Obtaining summary judgment under the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOPA)
When a payment claim is served by a Claimant, the Respondent has 10 business days (or shorter if provided in the Construction Contract) to prepare and serve a payment schedule on the Claimant within that timeframe.
If a Respondent does not serve a payment schedule in time, a statutory debt arises for the amount of the payment claim.
If a Respondent does serve a payment schedule in time, a statutory debt arises for the amount of the payment schedule.
The statutory debt may be enforced in one of two ways by a Claimant by commencing proceedings in a court to enforce the statutory debt.
If proceedings are commenced in Court to enforce a statutory debt, a Claimant may apply for summary judgment.
Summary judgment is a judgment without a trial where a Claimant satisfies the court that there is no triable issue. Generally, this requires a Claimant to show that there is no factual matter that involves oral evidence that is in dispute.
Because SOPA restricts a Respondent from making a cross-claim or raising a defence in relation to matters arising under the construction contract in those proceedings, provided it can be shown that the statutory debt arose, a Claimant will often be able to readily satisfy the Court that there is no issue to be tried and that summary judgment should be entered for the claimed amount.
*This article was prepared with the assistance of Priyanka Ram*
If you have any questions or concerns please contact Michael Terry-Whitall of our Building & Construction Team on 02 6188 3600