Liquidated damages claimed by a respondent/principal are 'excluded amounts' under s 10B(2) of the Building and Construction Industry Security of Payment Act 2002 (Vic) and cannot be deducted from a progress payment under the Act; the principal must pursue such claims through contractual remedies or litigation. An agreement for the purposes of s 10A(2) claimable variations must be in place at the time of service of the payment claim, not formed during the payment schedule or adjudication process. Inclusion of non-claimable variations in a payment claim does not invalidate the entire claim or adjudication determination; the invalid portion is severable under s 23(2B)(b).
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