Civil and earthworks subcontracts in New South Wales: what to check before you sign
In New South Wales, a civil subcontract is read alongside the Building and Construction Industry Security of Payment Act 1999 (NSW), which caps subcontract payment terms at 20 business days. The contract itself still decides the risks that cost civil and earthworks subcontractors most: latent conditions; quantities and remeasurement; standing time for plant and crews.
AI risk report, not legal advice. The scanner gives general information about the risks in a document. It is not a lawyer, does not know your circumstances, and can be wrong. For decisions with legal consequences, get advice from a construction lawyer.
New South Wales rules that override your contract
Statute: Building and Construction Industry Security of Payment Act 1999 (NSW)
- Payment terms for subcontractors are capped at 20 business days after the payment claim. A longer term in the contract doesn't change that.
- If the builder disputes a payment claim, it has to answer with a payment schedule within 10 business days (or any shorter period in the contract).
- Head contractors must pay subcontractors within 20 business days of the claim, retention money on larger projects must be held in trust, and work can lawfully be suspended after non-payment on two business days' notice.
- Adjudication: typically 10 business days from receiving a payment schedule that disputes the claim, through a private authorised nominating authority.
- Retention on larger projects must be held in trust.
Where civil and earthworks subcontractors lose money
Latent conditions
Rock, contamination and services that weren't in the investigation reports can transform the cost of the job. A clause that puts all ground risk on you, regardless of the information provided, is one of the most expensive in civil work.
Quantities and remeasurement
Lump sums on uncertain quantities shift the risk to you. Schedule of rates or remeasure for bulk items protects against swings.
Standing time for plant and crews
When the builder or another party stops the work, your plant still costs money. Make sure stand-downs caused by others are paid.
Weather and wet ground
Wet ground can stop earthworks for days after rain stops. Extension of time and cost for weather should reflect that.
Three things to push for in your departures schedule
- Latent conditions shared, with relief where conditions differ from the reports
- Schedule of rates or remeasure for uncertain quantities
- Standing time paid when others stop the works
The free scanner finds these clauses in your actual contract in about two minutes and writes the departures schedule for you.
What the Index says
Live figures from the Australian Subcontract Index, 90 real subcontracts. The Index holds only 3 civil and earthworks contracts so far, under the 10-contract threshold, so these are national figures across all trades. Nothing under 10 contracts is ever shown.
Civil and earthworks subcontracts in other states
Civil and earthworks subcontracts in NSW: common questions
How long does a builder in NSW have to pay a civil and earthworks subcontractor?
No more than 20 business days after your payment claim, whatever the contract says. If the builder disputes the claim, it has 10 business days to answer with a payment schedule giving its reasons.
Who carries latent condition risk in a civil subcontract?
Whoever the contract puts it on. Many builder subcontracts push all ground risk to the subcontractor. A fairer position gives relief where conditions differ materially from the information provided at tender.
Where do NSW civil and earthworks payment disputes go?
Authorised Nominating Authorities (NSW Fair Trading maintains the list). Timing: typically 10 business days from receiving a payment schedule that disputes the claim, through a private authorised nominating authority.
Is this legal advice?
No. It is general information about common subcontract risks and the state's payment law as recorded in our registry. Statutory details change; check the current Act, and take the scanner's report to a construction lawyer for decisions with legal consequences.
General information, not legal advice. Statutory details are taken from our state law registry and change over time; verify them against the current Building and Construction Industry Security of Payment Act 1999 (NSW) before relying on them. Built by Mat Kennedy, Founder, The Construction Contracts Co.