If our client did not serve the PC as required by the act. Should we have them issue a new PC that is served properly or is it ok to proceed to litigation even though the PC was emailed?
It would be prudent to re issue the PC in accordance with the Act. Below is an extract from our commentary:
The scheduled amount must be paid on or before the due date for the progress payment to which the payment claim relates: section 16.
If this scheduled amount is not paid in full, the claimant can make an adjudication application under section 17(1)(a)(ii) in relation to the payment claim. Alternatively, the claimant can sue for the unpaid portion as a debt due in any court of competent jurisdiction. See the matter plan for an example Letter of Demand Scheduled Amount not Paid in Time and Statement of Liquidated Claim - Scheduled Amount not Paid in Time.
The claimant can claim interest at the rate in the contract, if any, or the rate prescribed by regulation 36.7 of the Uniform Civil Procedure Rules 2005. If the claimant commences proceedings, the respondent is not entitled to bring any cross-claim against the claimant, or raise any defence in relation to matters arising under the construction contract. At this time, the claimant may also suspend work or the supply of related goods and services under the contract on giving the respondent 2 business days notice.
At this time, the claimant may also suspend work or the supply of related goods and services under the contract on giving the respondent 2 business days notice. See the matter plan for an example Notice to Suspend Work Scheduled Amount not Paid in Time. This notice must state that it is made under the Act.