Victoria scrapped the excluded amounts, but most guides still say they exist.

For two decades, Victoria's security of payment regime carried a feature no other Australian jurisdiction had: excluded amounts.

Certain claims — notably some variation claims and damages — could not be included in a payment claim or considered by an adjudicator. It made Victoria the outlier, it generated a substantial body of case law, and it is the single most-cited peculiarity in any comparison of Australian security of payment law.

It has been repealed.

Act No. 43/2025 removed the definition of excluded amount from section 4(1) of the Building and Construction Industry Security of Payment Act 2002. It also removed claimable variation, adjudication review, adjudication review application, review adjudicator and review determination.

The repeals commenced on 15 April 2026. Most published guidance still describes the old position.

What was repealed

Section 5 of Act 43/2025 repealed the following definitions from section 4(1):

All six were repealed by section 5(2) of Act 43/2025.

The loss of adjudication review is significant in its own right. Victoria had a review mechanism; Western Australia retains one under Division 3 of its 2021 Act. Victoria no longer does.

What was added: performance security claims

The reforms did not only subtract. Act 43/2025 inserted an entirely new claim type.

New definitions inserted by section 5(3) include performance security, performance security claim, performance security schedule, performance bond, retention money and release, alongside defects liability period, practical completion, named month and GST.

One caution for anyone reading the amending Act rather than the current consolidation: Act 43/2025 also inserted a definition of adjudicated amount, but a later Act — No. 22/2026, in force from 24 June 2026 — repealed it again. Reading the 2025 amendments alone will give you a definition that is no longer there.

A new Division 1A — Claims for release of performance securities was inserted, covering sections 17A to 17H:

• s17A — claims for release of performance securities
• s17B — earliest time a performance security claim may be served
• s17C — latest time a performance security claim may be served
• s17D — overriding contract provisions have no effect
• s17E — performance security schedules
• s17F — consequences of not releasing performance security where no schedule
• s17G — consequences of not releasing in accordance with a schedule
• s17H — entitlement to have recourse to a performance security

Section 18A provides for adjudication applications relating to performance security claims, mirroring the progress payment process in section 18.

In plain terms: retention and performance security can now be pursued through the same statutory machinery as progress payments. For subcontractors, that is a material expansion of what security of payment can be used for.

The timing rules were rewritten

Sections 14A to 14D were inserted by section 16 of Act 43/2025:

s14A — earliest time a payment claim may be served. On and from the last day of the named month in which construction work was first carried out, and on and from the last day of each subsequent named month.

s14B — certain contract provisions have no effect. A contract cannot push the earliest day for serving a claim later than the last day of each named month, nor require milestone payment claims to be served less frequently than monthly. There is a specific carve-out allowing a contract to set 31 January as the earliest service date for work carried out between 22 and 31 December.

s14C — latest time a payment claim may be served. No later than the day before the latest of: the date determined under the contract; six months after practical completion of all construction work; or six months after the supply of all related goods and services.

s14D — frequency. One payment claim per named month, unless the contract provides otherwise.

The six-month figure matters. Secondary sources commonly describe Victoria's claim window as three months — the shortest in the country. Section 14C, as inserted in 2025, gives six months from practical completion.

Payment terms are now capped

Section 12(1B), inserted by section 11(2) of Act 43/2025, provides that a term of a construction contract has no effect to the extent it provides for payment of a progress payment, or release of a performance security, later than 20 business days after the claim is served.

Where a contract is silent, section 12(1)(b) sets the due date at 10 business days after the earliest day a payment claim may be served.

What did not change

Payment schedules are still 10 business days. Section 15(4), as amended, requires a respondent to serve a payment schedule within the time required by the contract or 10 business days after the payment claim is served, whichever expires earlier. Failure means liability for the claimed amount on the due date.

Adjudication timing is unchanged in structure. Under section 18(3):

• Schedule given for less than claimed — 10 business days after receiving the payment schedule
• Schedule given but not paid — 10 business days after the due date for payment
• No schedule given — 5 business days after the end of the 5-business-day period in section 18(2)(b)

And the no-schedule path still requires a notice first: under section 18(2), a claimant must serve notice on the respondent within 10 business days after the due date, and the respondent then has 5 business days to serve a payment schedule in response.

Does it apply to your contract?

This is the question most guidance skips, and the answer is not the one people expect.

It does not turn on when the contract was signed. Section 54(1) applies the amended Act to construction contracts entered into before, on or after commencement. An old contract does not keep the old rules.

It turns on when the payment claim was served. Section 54(2) is the operative carve-out: the Part 3 amendments do not apply to a payment claim served under section 14, or an adjudication application made under section 18 and not yet determined, before 15 April 2026.

Put together:

The practical consequence: a contractor working under a 2019 subcontract who serves a claim next month is in the new regime. Excluded amounts do not apply to that claim, and retention can be pursued through Division 1A. Advice given on that contract before April 2026 is now wrong about it.

What to do about it

If you hold Victorian contracts, three practical steps:

1. Stop relying on excluded amounts advice. Any guidance, template or internal process referring to excluded amounts or claimable variations is describing repealed law.
2. Review whether retention can now be claimed through the performance security process in Division 1A. For subcontractors carrying long-held retention, this is the most commercially significant change.
3. Check your contract's payment terms against the 20 business day cap in section 12(1B). Anything longer has no effect to that extent.
4. Date your claims deliberately. The dividing line is service of the payment claim, not the age of the contract. Where a claim could reasonably have been served either side of 15 April 2026, which regime it falls under was decided by the date on the claim.

Published 31 August 2026 · Updated 7 September 2026