RAA In Practice | Contract Administration & SOPA - Areas of Risk for Architects | Fiona Clark

Wednesday 20th May 1pm – 2pm AEST

This 1 hour session offers 1 formal CPD point, performance criteria addressed are 48, 57 and 58 from the AACA National Standard of Competency for Architects 2021.

The Session
Barrister Fiona Clark will speak about contract administration, the Security of Payment Act, where the risks are for Architects and how they can be avoided.

Architects appointed as both the agent for their client and the Superintendent of a Contract are required to comply with SOPA when assessing and certifying claims made by the contractor for payment.

Progress Claims under a contract act as a Payment Claim under SOPA by the mere inclusion of this wording on the face of the Claim. This is now the norm. Once the Contract Administrator or Superintendent receives this document the time-limits under SOPA start to run. Asking the contractor to withdraw the claim is an invalid request under SOPA, and so are any agreements to require the contractor to meet conditions before being entitled to lodge a Payment Claim. The usual negotiation prior to agreeing on a sum does not displace the obligations of a principal to put on a Payment Schedule within the time required- which is 10 working days.

Regardless of what else is going on with the negotiations on payment, if the ten days runs and there is no Payment Schedule served then the contractor has a right to proceed straight to obtaining a summary judgment for the amount claimed OR can elect to go to an adjudication and the principal’s rights to put on submissions regarding why payment should be withheld are removed due to the failure to raise any reasons for withholding payment in a Payment Schedule.

Architects must not only be aware of these issues but must also be aware of what is required in terms of preparing a valid Payment Schedule. If the Schedule does not have sufficient information in it- it can be invalid and this will allow the contractor to proceed to judgment or adjudication with the same prohibitions on the principal putting its position as if there was no Payment Schedule in existence.

These mistakes can cost a client dearly and Architects need to understand how to avoid them.

Fiona Clark
Fiona Clark is a barrister who specialises in construction and infrastructure. She has been at the Bar in NSW since 1999 (with a brief hiatus where she moved to San Francisco and Washington DC) and prior to this she was a solicitor at the NSW Office of Fair Trading.

She has appeared in large multi-million dollar building contract disputes for developers, builders and owners and has appeared in the High Court and the New South Wales Court of Appeal in complex and often novel disputes which all involve the interpretation of building contracts and the obligations of contractors, owners and design consultants. She has acted for Architects and Engineers in professional negligence and breach of contract proceedings and is currently developing online courses for non-lawyers to teach contract administration to people who do not have legal qualifications.

She has also taught in the University of Wollongong and University of Western Sydney Law Schools and has published articles in the Australian Law Journal and given papers on building contracts, expert evidence in building disputes, and contract administration for various institutional bodies such as the Master Builders’ Association and the Institute of Architects, as well as to solicitors CPD forums.