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The Building and Construction Industry Security of Payment Act 1999 (NSW) (the “Act”) governs the rights and obligations of all parties to a contract for building works. The ordinary process requires you as subcontractor to serve your Progress Claim on the Head Contractor who gets paid by the Principal and then pays you. However, what do you do when the Head Contractor becomes insolvent or is placed under external administration?
The Act provides the mechanism for you to pursue payment of your progress claim directly from the Principal provided that the Head Contractor has not already been paid on your behalf. It is essential that you comply with the deadlines stipulated by the Act in order for your claim against either the Head Contractor or the Principal to succeed. It all begins with your contract with the Head Contractor which should contain the relevant dates for service and payment of progress claims.
It is important to note that your ability to claim from the Principal as outlined above is only possible if the Head Contractor has not already been paid for the work for which you are making your progress claim.
Unfortunately, if the Head Contractor has already been paid you will be required to lodge your Proof of Debt with the Administrator/Liquidator and pursue your claim along with all of the other secured creditors involved in the insolvency proceedings.