The Risk of Early Claims

In construction, being early usually helps, except when it comes to payment claims.

Under the Building Industry Fairness (Security of Payment) Act 2017 (Qld), a payment claim can only be made on and from the relevant reference date.
If it is served before that date, even by a day, it is no claim at all.

We often see this around Christmas or EOFY when a principal or head contractor says, “Can you get your claim in early this month?”
Or when the reference date falls on a weekend and someone tries to do the “smart thing” by serving it on the Friday.

Those claims might look fine on paper, and there might be good reason to comply with the request, but do so knowing that the claims are likely unenforceable at adjudication.

Even deeming provisions (where a contract says an early claim is deemed to be served on the reference date) do not fix the problem. The case law is clear.

Occasionally, we have been able to salvage a claim because the previous month’s was also early, which gave an earlier reference date to work with. But that brings its own issues concerning claiming for work performed after the reference date — a topic for another day.

The bottom line: reference dates are fundamental.

Unlike project completion, being early with your claim is not a good thing.
If you are unsure whether your next claim date is valid, it is worth checking before you serve, not after you are in adjudication.