Variation claims in Victorian adjudication: ss 10A–10B gone, s 13A in

This page is the Victorian working layer of the Australian variations cluster, under the Victorian hub. The common-law rules on what a variation is, who must direct it and how it is valued do not change at the Murray River (domestic building aside, where the Domestic Building Contracts Act 1995 (Vic) adds its own variation rules). The statute that decides how fast a disputed variation turns into cash does.

A note on sources. Section 13A, s 54 and the Act's endnotes were read verbatim from the authorised PDF of the Victorian Act (version 015, in force from 24 June 2026) on 26 September 2026, and are quoted from that read. The amended ss 12, 14C and 21(2)(d) and the pre-reform ss 10A–10B and 21(2B) (authorised version 013) were also read. Yuanda [2021] VSCA 44 was read on AustLII. The abolition of reference dates and the performance-security notice come from law-firm summaries and are labelled as such.

Sections 10A–10B: what the "claimable variation" gateway excluded

The repeal itself is certain. The authorised version's endnotes record that ss 10A and 10B were "inserted by No. 42/2006 s. 11, repealed by No. 43/2025 s. 9". Sections 10A–10B had been in the Act since they were inserted by No. 42/2006.

Read from the pre-reform authorised version (version 013, as at 1 February 2024):

• First class (s 10A(2)): the parties agreed the work was done, its scope, that it was a variation, the entitlement, the value or valuation method, and the time for payment. Claimable.
• Second class (s 10A(3)): the work was done at the respondent's request or direction, but the parties disagreed on whether it was a variation, the entitlement, the value, the valuation method or the time for payment. Claimable only if the contract sum was $5 million or less, or the contract had no dispute-resolution method. Once second-class claims exceeded 10% of the contract sum at formation, the $5 million figure became $150,000 (s 10A(4)).
• Excluded amounts (s 10B(2)): any variation that was not claimable; any amount (other than a claimable variation) claimed as compensation for an event, including latent conditions, time-related costs and changes in regulatory requirements; damages for breach; claims arising at law other than under the contract; and prescribed classes.

Read those thresholds against a real project. Almost every head contract above $5 million contains a dispute-resolution clause. (Opinion.) So on the projects where variation accounts are largest, a disputed variation was an excluded amount, and a variation the principal agreed was rarely the one anyone needed to adjudicate. The money that most needed a fast forum was the money the Act kept out of it.

It was worse than an exclusion. In Yuanda Vic Pty Ltd v Façade Designs International Pty Ltd [2021] VSCA 44, the Court of Appeal (McLeish and Niall JJA; Sifris JA dissenting) held that where a payment claim included any excluded amount, a court asked to give judgment under s 16 for an unanswered claim could not give judgment at all ([27]), and could not sever the excluded part ([36]). The claim itself remained valid; the adjudication route could recover it less the excluded amounts, and the same work could go into a fresh claim ([26]). The practical result was a dual track: claimants learned to keep disputed variations out of payment claims entirely and pursue them in court or arbitration, often years later. (Opinion.) No other Australian security-of-payment Act located has an equivalent gateway, as this library's security-of-payment page records (Jones Day's 2020 national survey describes Victoria's as unique).

What is claimable now

Everything the contract entitles the claimant to be paid for. With ss 10A–10B gone there is no statutory class of variation, and no category of latent-condition or delay money, that the Act excludes from a progress payment. That is the reading of every firm summary consulted, and it follows from the repeal: the concept that did the excluding no longer exists. Ashurst (23 April 2026) puts it plainly: "There is no longer any concept of claimable or non-claimable variations."

Three things do not change. The adjudicator still values the contractual entitlement, so a variation never validly directed is worth no more in adjudication than in court. The determination is still interim. And the rules this library sets out, state by state, on extension of time and security of payment, including the narrow grounds for judicial review, now apply to Victorian variation money in the same way they apply to delay money.

The same amending Act rebuilt the payment timetable around the variation account. Rows 2 and 3 were read from authorised version 015; rows 1 and 4 are from firm summaries.

Section 54: which payment claims still run on the old rules

Whether a pre-2026 contract gets the new regime was a live conflict between firm summaries. The statute settles it. Section 54 reads, in its operative parts:

(1) Subject to this section, this Act as amended by Part 2 of the amending Act applies in respect of a construction contract that is entered into before, on or after the commencement of Part 2 of the amending Act.

(2) Subject to this section, the amendments (including repeals) made to Part 3 by Part 2 of the amending Act do not apply in respect of a payment claim served under section 14, or an adjudication application made under section 18 but not determined, before the commencement of Part 2 of the amending Act.

So both earlier summaries were partly right. A payment claim served before 15 April 2026, and an adjudication application made but undetermined before that date, keep the old Part 3 procedure. Every payment claim served on or after 15 April 2026 runs on the new Act, whatever the contract's date. Section 54(1) also settles a smaller point: the amendments to the SOP Act sit in Part 2 of the amending Act.

★ One point s 54 does not answer. Section 54(2) preserves the old Part 3 rules. Sections 10A–10B sat in Part 2 of the SOP Act ("Rights to progress payments and release of performance securities"). Whether a pending payment claim that contained a variation still meets the old excluded-amounts regime therefore turns on something other than s 54(2)'s words: the old Part 3 provisions that referred to excluded amounts, the Interpretation of Legislation Act 1984 (Vic), and any regulations under the new s 55. (Inference: neither answer is stated here as law.) For a claimant still holding a pre-15 April claim with a disputed variation in it, the safer course is a fresh payment claim now. (Opinion.) Section 13A sits in Part 2 as well, so whether it can be invoked in an adjudication of a payment claim served before 15 April 2026 is not answered by s 54's words either. (Inference.)

The payment schedule now carries the case

The repeal changes the respondent's job more than the claimant's. Under the old regime, "excluded amount" was a complete answer to a disputed variation, and it was a jurisdictional one: an adjudicator had to exclude it whatever the payment schedule said. That shortcut is gone. A respondent that disputes a variation now has to say why (no direction, no variation, wrong value, time-barred) in the payment schedule.

Section 21(2)(d)(i) of the amended Act (read from version 015) bars an adjudication response from giving a reason for not paying that was not set out in the payment schedule. This is new. Before 15 April 2026, s 21(2B) let a respondent raise new reasons in its response, and the adjudicator had to give the claimant two business days to reply (s 54(2) keeps that old rule for claims already served). Both changes point the same way: the excluded-amounts objection is gone, and so is the second chance at reasons.

Put the two together and the payment schedule becomes the respondent's only pleading. A schedule that says "variation rejected: not claimable" answers a question the Act no longer asks. (Opinion.)

The claimant carries the other half. An adjudicator on a business-day timetable decides a variation on what is in front of them: the direction, its date, the scope it changed, the notice, the valuation. And a determination is not the final account. In New South Wales, Kaloriziko v Calibre Construction (No 2) [2025] NSWCA 259 held that a principal's approval of a claimed "variation" that was in truth within the contract works did not make it a variation. Because progress payments were "on account only", approval and payment did not close the question: "The pricing of a non-variation does not convert it to a variation." As the headnote puts it, approval was no more than an implied admission capable of being displaced by the true contractual position. The developer received a $133,175 credit on an item it had approved but not paid. Five approved and paid items were also held not to be variations, but the builder kept that money because the contract made them separately payable. An adjudicated variation is exposed in the same way. (Inference: Kaloriziko is a NSW contract case on amended AS 4902-2000-format conditions, not a Victorian or security-of-payment decision.)

Where Storia fits

The repeal makes eight-figure variation adjudications practical in Victoria, and a respondent can no longer dispose of one by calling it an excluded amount. It has to engage the merits, in the payment schedule, on the record. Storia turns drawings, RFIs, schedules, correspondence and field reports into one source-linked project record, built as the work happens, so that each variation in a payment claim or schedule traces back to the direction, the notice and the cost documents it depends on. On a business-day timetable, the party that can show who directed what, and when, has the easier adjudication.

Section 13A: the text, read from the authorised Act

Section 13A ("Notice-based time bar provisions") was inserted by No. 43/2025 s 13. Its structure matters more than its headline, so it is set out here piece by piece.

What can be declared. Subsection (1): a notice-based time bar provision "may be declared under this section to be unfair in relation to a particular entitlement under the contract if compliance with the provision": "(a) is not reasonably possible; or (b) would be unreasonably onerous."

Who can declare it. Subsection (2): an adjudicator "for the purposes of adjudicating matters under Part 3"; a court in a proceeding for the recovery of money, the release of a performance security or the enforcement of other rights under the contract; an arbitrator; or an expert appointed by the parties. It is not an adjudication-only power.

What a declaration does. Subsection (3): the provision "(a) has no effect on the particular entitlement that is the subject of an adjudication or proceeding in which it was declared to be unfair; and (b) continues to have effect in other circumstances or proceedings arising under the contract or a related contract." A declaration does not strike the clause. It disapplies it for one entitlement, in the adjudication or proceeding in which it is made.

Who must prove it. Subsection (4): the party alleging unfairness "bears the onus of establishing that it is unfair."

What the decision-maker must weigh. Subsection (5) lists mandatory matters:

Two presumptions, of different strength. Subsection (7): it is "conclusively presumed" that the parties have read and understood the contract, and "presumed" that the notice-giver has a reasonably competent contractor's competence. The drafting difference implies the second can be displaced and the first cannot. (Inference.) "I did not read the clause" is never an argument under s 13A.

What the decision-maker must ignore. Subsection (6): "the provisions of any related contract or the things that happened under any related contract." A subcontractor cannot argue that its notice period was unfair because the head contract gave the principal longer. (Inference.)

What is a notice-based time bar provision. Subsection (8): a provision "that makes any of the following contingent or dependent on the provision of notice by a party to the contract": "(a) an entitlement to be paid for": "(i) construction work carried out or undertaken to be carried out; or (ii) related goods and services supplied or undertaken to be supplied, under the contract; (b) an extension of time for doing a thing that affects an entitlement referred to in paragraph (a); (c) the release of a performance security". Notice "includes" notice of the actual or estimated time of doing a thing, of its actual or estimated cost, of an intention to do a thing, of the description of a thing, and of a prescribed matter.

Section 13A does not strike a clause. It disapplies it for one entitlement, in one adjudication or proceeding, on the applicant's proof, against a presumption that the applicant read the contract.

What s 13A catches in a variation clause

None of the following has been tested.

A variation claim notice. A clause that bars payment for a directed variation unless the contractor notifies its claim, or its estimated cost, within a set number of days makes "an entitlement to be paid for construction work" contingent on "notice by a party", and the notice is of cost or of the description of a thing. It is within the definition. (Inference, and a strong one.) Being within the definition is the start, not the end: the claimant still has to prove unfairness against s 13A(5) and (7).

A clause limiting recovery to costs incurred after notice. Clayton Utz (4 March 2026) says the definition of notice "is expansive and likely to cast a wider net than perhaps originally envisaged", and that "determiners might also be empowered to invalidate notice clauses which disentitle recovery of costs incurred prior to (but not after) the giving of notice. Such clauses are commonly used in connection with contractual regimes regulating scope variations". The same authors observe that "some of the factors that the determiner must consider do not neatly fit in this context", because s 13A(5)(a) and (d) "appear to contemplate time bars which entirely prevent payment claims". Strength: "might". It is a flag, not a prediction.

A written-direction requirement. That is the next section.

AS 4000 cl 36.1 (1997 and 2025) and s 13A: the open question

AS 4000 cl 36.1 (Directing Variations) provides, in the wording common to two independent amended copies (an AS 4000-1997 tender copy and the AS 4902-based conditions in Kaloriziko), that the Contractor shall not vary the work except as directed in writing, and that the Superintendent may direct a variation before the Date of Practical Completion. Firm summaries report that the 2025 edition keeps the rule. No licensed copy of either edition was read.

Does s 13A reach it? NEGATIVE FINDING No decision, determination or reported award on the point was located; an AustLII search found no decision applying s 13A at all (to about June 2026). It should be stated at exactly that strength. Two things about where the question comes from:

• Clayton Utz's flag is narrower than it is usually reported. Their article does not mention AS 4000, cl 36 or written directions. Its concern is clauses that bar recovery of costs incurred before the contractor's notice. Carrying that concern across to a written-direction requirement is this library's own extension. (Inference.)
• The text points both ways. (Inference, each limb.) Against capture: s 13A(8) speaks of "notice by a party", and s 13A(1) and (5) test whether compliance was possible for "the party required to give notice". Under cl 36.1, the act the entitlement depends on is the Superintendent's direction, not anything the contractor must give: the contractor cannot "comply" with a requirement that someone else write. For capture: the definition of notice is inclusive, a direction is plausibly "notice of the description of a thing", and amended forms often add a contractor-side step (request a direction, or notify that a direction is a variation within a set time) that plainly is notice by a party. (One public amended AS 4000-1997 copy, in a 2025 tender bundle, adds exactly that: a condition-precedent notice within five business days that the Contractor considers a direction to be a variation.)

The practical reading follows from that split. (Opinion.) A contractor-side step bolted onto the variation clause is the likelier target of s 13A; a pure written-direction requirement is the least likely. If a decision-maker did hold cl 36.1's requirement to be a notice-based time bar, the main protection that AS 4000 (in both the 1997 and 2025 editions) and AS 4902 give principals would be materially weakened in Victoria. Worth watching; not worth planning on.

The "notice of an event" gap

The definition of notice in s 13A(8) is inclusive, but it does not list notice of an event occurring. Holding Redlich (9 October 2025, on the Bill) put it this way: "Interestingly, the definition of 'notice' does not expressly include notice of an event occurring. It remains to be seen whether a court would find that this falls into 'the description of a thing'." The same article notes that, unlike the WA Act, the Victorian provision "does not expressly capture 'notices of any other kind'". (Secondary for the WA comparison; WA s 16 was not read.)

For variations the gap matters less than for delay. A variation clause usually runs off a direction, whose description is a "thing". A delay clause that runs off notice of an event that "will probably cause delay" is the natural target of drafting into the gap. (Inference.) Because the definition says "includes", a decision-maker could read notice of an event in as the description of a thing; nothing yet says one will. Untested.

WA s 16 and Queensland: a comparison, clearly labelled

This section compares regimes. Nothing in it is authority for a Victorian proposition.

Section 16 of the WA Act, for contracts entered into on or after 1 August 2022, is the older power on the same "not reasonably possible" / "unreasonably onerous" test. NEGATIVE FINDING No reported decision applying s 16 was located. An AustLII search of Victorian and Western Australian case databases (current to about June 2026) located no decision applying or construing WA s 16 or Vic s 13A. One WA hit, Rock JV Pty Ltd v Thiess Pty Ltd [No 2] [2023] WASC 455, could not be opened and is unverified. Clayton Utz (4 March 2026) states that s 16 "has not been judicially considered in Western Australia", and Holding Redlich (9 October 2025) was "not aware of any cases that have applied or examined the boundaries" of it. Adjudication determinations are not generally published, so a declaration at adjudication could exist unreported.

Queensland has no equivalent power. The Building Industry Fairness (Security of Payment) Act 2017 (Qld) contains no provision allowing a notice-based time bar to be declared unfair; Holding Redlich's October 2025 survey names only Western Australia as having a similar provision before Victoria. A missed variation notice in Queensland is answered by ordinary contract law.

Edition note

The Victorian Act has been amended again since 15 April 2026. [EDITION ALERT] The Building Legislation and Treasury Legislation (Tax Relief) Amendment Act 2026 (Vic), No. 22/2026, assented to 23 June 2026, amends the SOP Act by ss 77–81, which commenced 24 June 2026: it amends s 4 (including repealing the definition of "adjudicated amount"), s 46 and s 50(2), and inserts s 50A ("Recurring reviews and reports"). They were not read in detail, and nothing here depends on them. Quote the Act from authorised version 015 or later.

The strongest case against this page's framing

A careful opponent would say this page overstates the change. Most disputed variation money on large Victorian projects was always going to be fought over in arbitration or court, and still will be; adjudication is interim, and a principal who loses one can recover in the final account, as Kaloriziko shows in New South Wales. On that view the repeal changes the timing of the argument, not its outcome.

That is right about the outcome and wrong about what timing is worth. (Opinion.) Who holds the money during a two-year dispute decides whether a subcontractor survives it. The stronger objection is to the s 13A sections: a page that spends this long on an untested provision may encourage contractors to treat notice periods as negotiable. They are not. The onus is on the applicant, the parties are conclusively presumed to have read the contract, and no reported decision declaring a construction notice clause unfair under either statute was located.

What to do about it

(Opinion, offered as working practice rather than as authority.)

1. Put disputed variations into payment claims served on or after 15 April 2026. For a claim served before that date, serve a fresh claim rather than argue what s 54 preserves.
2. Build each variation line to stand on its own: the direction, its date and author, the scope changed, any notice, and the valuation basis, cross-referenced to documents.
3. If you are the respondent, write the payment schedule as if it were your adjudication response, because in substance it now is. Give every reason, for every line.
4. Serve every notice the contract requires, on time. Treat s 13A as a fallback that you must prove, not a plan. The variation notice templates are built for that.
5. If you must rely on s 13A, prove it on the s 13A(5) factors: when the last day became apparent, how notice had to be given, bargaining power, and why a competent contractor could not comply. Keep related contracts out of the argument.
6. Principals drafting now: a contractor-side notice step in the variation clause is the part most exposed to s 13A. Decide whether you need it, and keep the written-direction requirement distinct from it.

For the doctrine that decides whether an adjudicator should value the variation at all, see written instruction and waiver in Australia and the Australian variations hub. For the same statutory overlay applied to extension-of-time notices, see notice and time bars in Australia.

About this material Library content is general information about construction claim practice, not legal advice. Entitlement, deadlines and procedure are governed by your own contract and by the law of the place the work is performed. Reviewed September 26, 2026 · Report a correction