 |
 |
Payments Act (BCIPA)
Fed up of not getting paid?
How the Building and Construction Industry Payments Act (Qld) 2004 can help you
The Building and Construction Industry Payments Act ("Act") introduced on 1st October 2004 applies to the carrying out of construction work and to the provision of related goods and services in Queensland. It also applies to residential building work except where the party for whom the work is carried out is a resident owner as defined in Section 3(5) of the Act.
It is vital that builders and subcontractors have an understanding of what it is designed to do for them. It can help you to resolve any under payment or non-payment issues you might have and is now being extensively used with over 1000 adjudications to date (April 2008).
The Act follows the NSW legislation and is designed to ensure the rapid adjudication of ‘payment on account’ disputes. The Act establishes a procedure for securing payments and to which a principal, builder, subcontractor or supplier cannot contract out of. Put simply, any contract terms agreed between parties that are not in accordance with the Act are void and cannot be enforced.
For each ‘reference date’ under a construction contract there is an entitlement to a progress payment which becomes payable a maximum of 25 business days for a management trade contract or subcontract after a payment claim has been issued for building work (as defined by s 67U of the Queensland Building Services Act (QBSA)) or 15 days for a head contract. If the builder fails to secure a payment schedule within 10 business days of receiving the claim, the full account claimed is payable and cannot be disputed by the Builder.
If a progress payment is not paid by the due date, there is an option of applying for an adjudication, commencing court proceedings or notifying its intention to suspend the works. An adjudication decision is enforceable as a judgement debt, but do not finally determine the rights between the parties.
Our legislation in Queensland.is distinguished from the NSW legislation in that by virtue of amendments which were also made in the QBSA a provision in a contract allowing for progress payments must provide for payment to occur no longer 15 business days for head contracts and 25 business days for trade contracts and subcontracts after the progress claim is lodged. If the contract provides otherwise, the provision will be void and the contractor will be entitled to payment within 10 business days of having lodged the payment claim. Consequently a party should not use standard form contracts e.g. AS2124 & AS2545 without amendment
A party is also forced to chose between the remedies available under the Subcontractors’ Charges Act (SCA) and the Act under comment. Although a party may lodge both a payment claim under the Act and a Subcontractors’ claim under the SCA, the party receiving the payment claim under the Act is not required to make a payment in accordance with the Act, nor can the party making the claim seek adjudication in relation to its claim.