Effect of some of the amendments to the Building and Construction Industry Payments Act [“BCIPA”]
The Building Construction Industry Payments Amendment Bill has been introduced to Parliament.
Parties should be aware that one of the proposed amendments is to reduce the time for making a payment claim from 12 to 6 months from the date the relevant work ceases.
This is important because the Bill, if passed as introduced, could, depending on specific contract terms and whether it is a final payment or not, see the existing arrangements for service of the claim (i.e. 12 months) applying only to payment claims served before the commencement (See proposed ss17A and 114). Further, even if a Claimant has a valid payment claim at the time of the commencement, any adjudication application not already made to an Authorised Nominating Authority will have to be made through the Queensland Building and Construction Commission, and the new respondent-friendly provisions will apply.
This could mean that where a client has:
a. an accrued entitlement to payment at (say) 8 months post work ceasing,
b. at the time of commencement of the proposed changes,
c. and no payment claim had then been made,
that the payment claim (and consequential right to go to adjudication) under the Building and Construction Industry Payments Act could not proceed.
Finally, where a payment claim is served before commencement, and no payment schedule (or a schedule conceding that money is owing) is served, the right to obtain judgment from a court for the undisputed sum may become subject to a mandatory ‘second chance notice’ and may be extinguished entirely, on the Bill’s current wording.
If you are considering making a possible claim under the Building and Construction Industry Payments Act (or generally in relation to this area of practice) now or prior to the Bill being considered and/or passed it is critical to consider the application of the proposed amendments to the specific circumstances or risk delay issues (consider execution risks on any judgment) when pursuing any claims through the more expensive Court process.
Contact Managing Director – Bruce Johnstone, who is a Registered Adjudicator under the Building and Construction Industry Payments Act , or Senior Associate – Mark Taylor, for down to earth, straight to the point advice.