Making a performance security claim under the SOP Act

A performance security claim is a claim under the SOP Act for the release of a performance security.

Before making a performance security claim

Before preparing a performance security claim, you should ask the following questions.

Does the SOP Act apply to this contract?

The SOP Act applies to most contracts to carry out construction work or supply related goods and services. The contract may be written, oral or a combination of both.

It does not apply to contracts to carry out domestic building work with a building owner unless the building owner is in the business of building residences and the contract is entered into in the course of, or in connection with, that business.

When can I make a performance security claim?

A performance security claim can be served in accordance with the contract or 20 business days after the end of the relevant defects liability period (whichever is earlier).

The latest time a performance security claim can be served is the latest of the day (if any) determined under the contract or the last day of the month following the last month in which the last defects liability period under the contract ends.

Information required in a performance security claim

The performance security claim must:

1. Identify the construction work or related goods and services to which the performance security and the claim relates
   To find out what kinds of work and services are covered by the SOP Act, see our Security of Payment webpage.
2. Specify the type and amount of performance security claimed
   The claim must specify the type of the performance security held and the amount of the performance security the claimant wants released.
3. Include the 'Security of Payment Statement'

The payment claim must notify the respondent that it is made under the SOP Act.

It must say: 'This is a performance security claim under the Building and Construction Industry Security of Payment Act 2002'.

Serving a copy on the respondent

A copy of the performance security claim must be served on the client or purchaser (the 'respondent') in the manner (if any) required by the construction contract. In any other case, it can be served by one of the following means:

• by delivering it in person
• by leaving it at the respondent’s ordinary place of business
• by posting it to the respondent’s ordinary place of business
• in any manner instructed by the respondent as being an acceptable manner for service.

The performance security claim can also be served on the respondent’s agent.

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