Suspending performance for non-payment
The Act gives a right to stop work when payment does not arrive. It is a strong remedy, it survives any contract term to the contrary, and it is lost by a single procedural slip.
QScope Team · 5 May 2026 · 6 min read
Section 112 of the Construction Act gives a payee the right to suspend performance of any or all of its obligations where the notified sum is not paid in full by the final date for payment.
It is a statutory right. It cannot be excluded by the contract, and a clause purporting to remove it has no effect. That makes it one of the few genuinely reliable levers available to a party that is not being paid.
The conditions
Three things must be true before the right arises:
- A sum has been notified, whether by payment notice, default notice or otherwise
- The final date for payment has passed without that sum being paid in full
- No effective pay less notice reduced the sum
Then the payee must give not less than seven days' notice of its intention to suspend, stating the ground on which it is doing so. The right to suspend arises only after that period, and it ends when payment in full is made.
What may be suspended
Since the 2011 amendments the right extends to any or all obligations, not merely the works themselves. That includes obligations such as providing information or attending meetings, which matters where the immediate leverage is not on site.
Partial suspension is permitted, and is often more proportionate. Stopping one trade or one activity may produce the necessary effect without the disruption and cost of clearing a site.
Costs and time
This is the part that changed most in 2011, and it is frequently underused.
Where performance is suspended for a valid reason, the payee is entitled to an extension of time for the period of suspension and for the period taken to remobilise, and to reasonable costs and expenses reasonably incurred as a result of the suspension.
Remobilisation costs are real and often substantial: plant returning, labour re-engaged, subcontractors rescheduled, sometimes at worse rates than before. They are recoverable, but only if they are recorded as they happen.
Why it is used less than it could be
Three reasons, and only one of them is good.
Relationship. Suspension is a visible act. On a repeat client it can cost more in future work than it recovers today. That is a genuine commercial judgement and it belongs to the business, not to the surveyor alone.
Uncertainty about validity. Parties hesitate because they are not sure the notified sum is established or the final date has genuinely passed. That hesitation is a symptom of poor date keeping, not of a difficult legal question.
Not knowing the payment is overdue. The least defensible reason, and more common than anyone admits. On a portfolio of jobs with different payment cycles, the day a payment became late is not obvious unless something is tracking it.
The safer sequence
- Confirm the notified sum and how it arose
- Confirm the final date for payment from the contract particulars, not from habit
- Confirm no pay less notice was validly served
- Serve the seven day notice in the manner the contract requires for notices, stating the ground
- Record what is suspended and when, in detail, from the first day
- Record remobilisation as it happens, not once work has resumed and the pressure is off
Suspension is a remedy of last resort and it should feel like one. But a party that cannot say with certainty whether a payment is overdue has already given up the option, quietly, without deciding to.
This is a general summary and not legal advice. Wrongful suspension carries real risk, so take advice before suspending on a contract of any size.
QScope holds the final date for payment for every certificate you issue, so the day a payment becomes overdue is a fact on the screen rather than something recalled in a phone call.