In this payment scheme the builder is entitled to an amount that is certified due by a designated certifier who works out the certified amount by applying the formula prescribed by the particular standard form contract that is applicable. This certified amount becomes due for payment from the employer to the builder and the amount due is usually reduced by an amount which the employer is entitled to deduct by way of a contractual provision or when the employer exercises his common law right of set-off. In the many cases brought to the courts by builders, the common ground used by employers to justify non-payment is reliance on their right of set-off, whether contractual or common law based.

This article begins by looking briefly at the issue of set-off as regards its evolution independent of the standard forms of building contract as well as in the light of how the common law right of set-off has been excluded by the Singapore Institute of Architects’ (SIA) standard form of building contract. Subsequently, the article examines how this right of set-off is regulated through the use of the legislation in the three jurisdictions of England, New South Wales and Singapore and concludes that the builder’s position cannot be better than before Singapore’s Building and Construction Industry Security of Payment Act 2004 (SOPA 2004) was implemented.