Options if a respondent doesn’t release the amount claimed or respond

A respondent who receives a performance security claim must release the amount claimed in full by the due date for release or give the claimant a performance security schedule within 10 business days after being served with the claim (or sooner, if the contract sets a shorter deadline).

If you are the claimant, you can take action against a respondent if the respondent:

• neither provides a performance security schedule nor releases the whole of the claimed amount on time
  or
• provides a performance security schedule and the amount proposed to be released is less than the claimed amount
  or
• provides a performance security schedule but does not release the proposed amount for release by the due date for release.

You have the option of applying for adjudication or going to court to recover the unreleased amount.

Apply for adjudication or go to court to recover the unreleased amount

Adjudication is a process created by the SOP Act to resolve a disputed claim for release of a performance security under a construction contract. For more information see SOP Adjudication.

Instead of applying for adjudication, you may choose to go to court to recover an unreleased amount.

For example, if the respondent does not release a performance security in accordance with their performance security schedule, or has given you a performance security schedule showing they propose to release less than the amount you claimed, you may decide to go to court rather than apply for adjudication.

You can commence proceedings in court for any dispute that may otherwise be adjudicated under the SOP Act.

This is done by lodging a complaint in the Magistrates’ Court or a writ in the County Court or Supreme Court (depending on the amount owed) and paying a filing fee, if any. Your lawyer can advise you about this process.