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PARLIAMENT OF VICTORIA
Building and Construction Industry Security of
Payment (Amendment) Act 2006
Act No.
TABLE OF PROVISIONS
Clause Page
1. Purpose 2
2. Commencement 2
3. Principal Act 2
4. Object of Act 2
5. Definitions 3
6. Definition of "construction work" 5
7. Definition of "related goods and services" 5
8. Application of Act 6
9. Rights to progress payments 7
10. Amount of progress payment 8
11. Insertion of sections 10A and 10B 9
10A. Claimable variations 9
10B. Excluded amounts 12
12. Valuation of construction work and related goods and services 13
13. Interest payable on overdue progress payment 13
14. Insertion of section 12A 14
12A. Lien in respect of unpaid progress payment 14
15. Effect of "pay when paid" provisions 15
16. Substitution of section 14 15
14. Payment claims 15
17. Payment schedules 18
18. Consequences of not paying claimant where no payment
schedule 18
19. Consequences of not paying claimant in accordance with
payment schedule 19
20. Adjudication applications 20
21. Adjudication responses 22
22. Adjudication procedures 23
23. Adjudicator's determination 24
24. Section 23A inserted 26
23A. Adjudication determination to be given to parties and
Building Commission 26
25. Correcting mistakes in determinations 27
26. Repeal of sections 25 to 27 27
27. Claimant may make new application if previous application
refused or not determined 27
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Clause Page
28. New Divisions 2A and 2B inserted in Part 3 27
Division 2A--Review of Adjudication 27
28A. Threshold for review 27
28B. Application for review by respondent 28
28C. Application for review by claimant 28
28D. Procedure for making application 29
28E. Right to make submissions 30
28F. Designated trust account 30
28G. Appointment of review adjudicator 31
28H. Adjudication review procedures 32
28I. Adjudication review determination 33
28J. Authorised nominating authority must notify persons
of review determination 36
28K. Withdrawal of adjudication review application 36
28L. Correcting mistakes in review determinations 36
Division 2B--Payment and Recovery of Adjudicated
Amounts 37
28M. Respondent required to pay adjudicated amount 37
28N. Payment after review determination 37
28O. Consequences of respondent not paying adjudicated
amount 38
28P. Consequences of claimant not paying adjudicated
amount 39
28Q. Adjudication certificates 39
28R. Proceedings to recover amount payable under
section 28M or 28N 41
29. Claimant may suspend work 43
30. New section 29A inserted 44
29A. Definitions 44
31. Recovery from principal 44
32. Substitution of Division heading 45
33. Insertion of sections 43A, 43B and 43C 45
43A. Functions of an authorised nominating authority 45
43B. Authorised nominating authority to provide
information 46
43C. Authorised nominating authority fees 47
34. Ministerial guidelines 47
35. Substitution of section 45 48
45. Adjudicator's and review adjudicator's fees 48
36. Liability of adjudicator 50
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Clause Page
37. Insertion of new Part 3A 50
PART 3A--ADMINISTRATION 50
47A. Functions of the Building Commission 50
47B. Register of authorised nominating authorities 50
47C. Recording and publishing of determinations 51
38. Substitution of sections 48 and 49 51
48. No contracting out 51
49. Confidentiality 52
39. Service of notices 52
40. Supreme Court--limitation of jurisdiction 52
41. Insertion of additional regulation-making powers 53
42. Substitution of section 53 53
53. Transitional provision--Building and Construction
Industry Security of Payment (Amendment)
Act 2006 53
43. Repeal of section 54 54
ENDNOTES 55
iii
551298B.A1-14/6/2006 BILL LA AS SENT 14/6/2006
PARLIAMENT OF VICTORIA
Initiated in Assembly 7 February 2006
As amended by Assembly 13 June 2006
A BILL
to amend the Building and Construction Industry Security of
Payment Act 2002 to make further provision with respect to
payments for construction work and for the supply of related goods
and services under construction contracts and for other purposes.
Building and Construction Industry
Security of Payment (Amendment) Act
2006
The Parliament of Victoria enacts as follows:
1
551298B.A1-14/6/2006 BILL LA AS SENT 14/6/2006
Building and Construction Industry Security of Payment
(Amendment) Act 2006
s. 1
Act No.
1. Purpose
The main purpose of this Act is to amend the
Building and Construction Industry Security of
Payment Act 2002 to make further provision with
respect to payments for construction work and for
5
the supply of related goods and services under
construction contracts.
2. Commencement
(1) This section and sections 1, 3, 38, 39 and 41 come
into operation on the day after the day on which
10
this Act receives the Royal Assent.
(2) The remaining provisions of this Act come into
operation on a day or days to be proclaimed.
(3) If a provision referred to in sub-section (2) does
not come into operation before 30 March 2007, it
15
comes into operation on that day.
3. Principal Act
See: In this Act, the Building and Construction
Act No.
Industry Security of Payment Act 2002 is called
15/2002.
LawToday: the Principal Act.
20 www.dms.
dpc.vic.
gov.au
4. Object of Act
(1) In section 3 of the Principal Act--
(a) in sub-section (1)--
(i) for "carries out construction work or
who supplies" substitute "undertakes
25
to carry out construction work or who
undertakes to supply";
(ii) omit "specified";
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Building and Construction Industry Security of Payment
(Amendment) Act 2006
s. 5
Act No.
(b) in sub-section (2), for "circumstances where
the relevant construction contract fails to do
so" substitute "accordance with this Act";
(c) in sub-section (3)(d) omit "or the setting
aside of money as security for payment of
5
the progress payment".
(2) For section 3(4) of the Principal Act substitute--
"(4) It is intended that this Act does not limit--
(a) any other entitlement that a claimant
may have under a construction contract;
10
or
(b) any other remedy that a claimant may
have for recovering that other
entitlement.".
5. Definitions
15
In section 4 of the Principal Act--
(a) insert the following definitions--
' "adjudication certificate" means a
certificate provided by an authorised
nominating authority under
20
section 28Q;
"adjudication determination" means a
determination made by an adjudicator
under section 23;
"adjudication fees" means any fees or
25
expenses charged by an authorised
nominating authority or by an
adjudicator or review adjudicator under
this Act;
"adjudication review" means a review of
30
an adjudication determination under
Division 2A of Part 3;
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Building and Construction Industry Security of Payment
(Amendment) Act 2006
s. 5
Act No.
"adjudication review application" means
an application under section 28B
or 28C;
"claimable variation" has the meaning
given in section 10A;
5
"excluded amount" has the meaning given
in section 10B;
"review adjudicator" in relation to an
adjudication review application, means
the adjudicator appointed in accordance
10
with this Act to determine the
application;
"review determination" means the
determination made by a review
adjudicator under section 28I in respect
15
of an adjudication review application;
"variation" in relation to a construction
contract, means a change in the scope
of the construction work to be carried
out, or the related goods and services to
20
be supplied, under the contract.';
(b) in the definition of "designated trust
account" omit "adjudicated";
(c) for the definition of "progress payment",
substitute--
25
' "progress payment" means a payment to
which a person is entitled under
section 9, and includes (without
affecting that entitlement)--
(a) the final payment for--
30
(i) construction work carried out
under a construction
contract; or
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Building and Construction Industry Security of Payment
(Amendment) Act 2006
s. 6
Act No.
(ii) related goods and services
supplied under the contract;
or
(b) a single or one-off payment for--
(i) construction work carried out
5
under a construction
contract; or
(ii) related goods and services
supplied under the contract;
or
10
(c) a payment that is based on an
event or date (known in the
building and construction industry
as a "milestone payment");
15 Note: The amount of a progress payment is
calculated in accordance with
sections 10, 10A, 10B and 11.';
(d) in the definition of "scheduled amount, for
"section 15." substitute "section 15;".
6. Definition of "construction work"
20
In section 5(1) of the Principal Act--
(a) in paragraphs (c), (e)(iv) and (f), for "or
structure" substitute ", structure or works";
(b) in paragraph (d), for "and structures"
substitute ", structures or works".
25
7. Definition of "related goods and services"
After section 6(2) of the Principal Act insert--
"(3) In this Act, a reference to related goods and
services includes a reference to related goods
or services.".
30
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Building and Construction Industry Security of Payment
(Amendment) Act 2006
s. 8
Act No.
8. Application of Act
For section 7(2)(b) of the Principal Act
substitute--
"(b) a construction contract which is a domestic
building contract within the meaning of the
5
Domestic Building Contracts Act 1995
between a builder and a building owner
(within the meaning of that Act), for the
carrying out of domestic building work
(within the meaning of that Act), other than a
10
contract where the building owner is in the
business of building residences and the
contract is entered into in the course of, or in
connection with, that business; or
(ba) a construction contract for the carrying out of
15
any work of a kind referred to in section 6 of
the Domestic Building Contracts Act 1995
relating to a residence other than--
(i) a contract where the person for whom
the work is, or is to be, carried out is a
20
person who is in the business of
building residences and the contract is
entered into in the course of, or in
connection with, that business; or
(ii) a contract where the work carried out,
25
or to be carried out, under the contract
is, or is part of or is incidental to work
to be carried out under another
construction contract; or".
6
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Building and Construction Industry Security of Payment
(Amendment) Act 2006
s. 9
Act No.
9. Rights to progress payments
In section 9(2) of the Principal Act--
(a) in paragraph (a)--
(i) for "work" substitute "a specific item
of construction work";
5
(ii) for "related goods and services"
substitute "a specific item of related
goods and services";
(b) in paragraph (b)--
(i) before "if the contract" insert "subject
10
to paragraphs (c) and (d),";
(ii) for "supplied under the contract."
substitute "supplied under the contract;
or";
(c) after paragraph (b) insert--
15
'(c) in the case of a single or one-off
payment, if the contract makes no
express provision with respect to the
matter, the date immediately following
the day that--
20
(i) construction work was last carried
out under the contract; or
(ii) related goods and services were
last supplied under the contract; or
(d) in the case of a final payment, if the
25
contract makes no express provision
with respect to the matter, the date
immediately following--
(i) the expiry of any period provided
in the contract for the rectification
30
of defects or omissions in the
construction work carried out
under the contract or in related
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Building and Construction Industry Security of Payment
(Amendment) Act 2006
s. 10
Act No.
goods and services supplied under
the contract, unless sub-
paragraph (ii) applies; or
(ii) the issue under the contract of a
certificate specifying the final
5
amount payable under the contract
"a final certificate"; or
(iii) if neither sub-paragraph (i) nor
sub-paragraph (ii) applies, the day
that--
10
(A) construction work was last
carried out under the
contract; or
(B) related goods and services
were last supplied under the
15
contract.'.
10. Amount of progress payment
(1) In section 10(b) of the Principal Act--
(a) in sub-paragraph (i), after "carried out"
insert "or undertaken to be carried out";
20
(b) in sub-paragraph (ii), after "supplied" insert
"or undertaken to be supplied".
(2) At the end of section 10 of the Principal Act
insert--
"(2) Despite sub-section (1) and anything to the
25
contrary in the construction contract, a
claimable variation may be taken into
account in calculating the amount of a
progress payment to which a person is
entitled in respect of that construction
30
contract.
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(Amendment) Act 2006
s. 11
Act No.
(3) Despite sub-section (1) and anything to the
contrary in the construction contract, an
excluded amount must not be taken into
account in calculating the amount of a
progress payment to which a person is
5
entitled in respect of that construction
contract.".
11. Insertion of sections 10A and 10B
After section 10 of the Principal Act insert--
'10A. Claimable variations
10
(1) This section sets out the classes of variation
to a construction contract (the "claimable
variations") that may be taken into account
in calculating the amount of a progress
payment to which a person is entitled in
15
respect of that construction contract.
(2) The first class of variation is a variation
where the parties to the construction contract
agree--
(a) that work has been carried out or goods
20
and services have been supplied; and
(b) as to the scope of the work that has
been carried out or the goods and
services that have been supplied; and
(c) that the doing of the work or the supply
25
of the goods and services constitutes a
variation to the contract; and
(d) that the person who has undertaken to
carry out the work or to supply the
goods and services under the contract is
30
entitled to a progress payment that
includes an amount in respect of the
variation; and
9
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Building and Construction Industry Security of Payment
(Amendment) Act 2006
s. 11
Act No.
(e) as to the value of that amount or the
method of valuing that amount; and
(f) as to the time for payment of that
amount.
(3) The second class of variation is a variation
5
where--
(a) the work has been carried out or the
goods and services have been supplied
under the construction contract; and
(b) the person for whom the work has been
10
carried out or the goods and services
supplied or a person acting for that
person under the construction contract
requested or directed the carrying out of
the work or the supply of the goods and
15
services; and
(c) the parties to the construction contract
do not agree as to one or more of the
following--
(i) that the doing of the work or the
20
supply of goods and services
constitutes a variation to the
contract;
(ii) that the person who has
undertaken to carry out the work
25
or to supply the goods and
services under the construction
contract is entitled to a progress
payment that includes an amount
in respect of the work or the goods
30
and services;
(iii) the value of the amount payable in
respect of the work or the goods
and services;
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(Amendment) Act 2006
s. 11
Act No.
(iv) the method of valuing the amount
payable in respect of the work or
the goods and services;
(v) the time for payment of the
amount payable in respect of the
5
work or the goods and services;
and
(d) subject to sub-section (4), the
consideration under the construction
contract at the time the contract is
10
entered into--
(i) is $5 000 000 or less; or
(ii) exceeds $5 000 000 but the
contract does not provide a
method of resolving disputes
15
under the contract (including
disputes referred to in
paragraph (c)).
(4) If at any time the total amount of claims
under a construction contract for the second
20
class of variations exceeds 10% of the
consideration under the construction contract
at the time the contract is entered into, sub-
section (3)(d) applies in relation to that
construction contract as if any reference to
25
"$5 000 000" were a reference to
"$150 000".
Example
A building contractor enters into a construction
30 contract. The consideration (contract sum) under the
contract at the time the contract is entered into is
$3 million. The contract contains a dispute resolution
clause. The contractor undertakes work at the
direction of the other party. The contractor claims
35 (the new claim) that the work is a variation to the
contract. The other party does not agree that the work
constitutes a variation to the contract (disputed
variation). The contractor has already made a
11
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(Amendment) Act 2006
s. 11
Act No.
number of claims for disputed variations under the
contract. The new claim brings the total amount of
claims for disputed variations under the contract to
$350 000. This amount exceeds 10% of the contract
5 sum. As the contract sum exceeds $150 000 and the
contract contains a dispute resolution clause, the
disputed variation in the new claim and all subsequent
disputed variations under the contract will not be
claimable variations under this Act.
10B. Excluded amounts
10
(1) This section sets out the classes of amounts
("excluded amounts") that must not be
taken into account in calculating the amount
of a progress payment to which a person is
entitled under a construction contract.
15
(2) The excluded amounts are--
(a) any amount that relates to a variation of
the construction contract that is not a
claimable variation;
(b) any amount (other than a claimable
20
variation) claimed under the
construction contract for compensation
due to the happening of an event
including any amount relating to--
(i) latent conditions; and
25
(ii) time-related costs; and
(iii) changes in regulatory
requirements;
(c) any amount claimed for damages for
breach of the construction contract or
30
for any other claim for damages arising
under or in connection with the
contract;
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(Amendment) Act 2006
s. 12
Act No.
(d) any amount in relation to a claim
arising at law other than under the
construction contract;
(e) any amount of a class prescribed by the
regulations as an excluded amount.'.
5
12. Valuation of construction work and related goods
and services
In section 11 of the Principal Act--
(a) in sub-section (1)--
(i) after "carried out" insert "or
10
undertaken to be carried out";
(ii) for paragraph (b)(iii) substitute--
"(iii) if there is a claimable variation,
any amount by which the contract
price or other rate or price set out
15
in the contract, is to be adjusted as
a result of the variation; and";
(b) in sub-section (2)--
(i) after "supplied" insert "or undertaken
to be supplied";
20
(ii) for paragraph (b)(iii) substitute--
"(iii) if there is a claimable variation,
any amount by which the contract
price or other rate or price set out
in the contract, is to be adjusted as
25
a result of the variation; and".
13. Interest payable on overdue progress payment
At the end of section 12 of the Principal Act
insert--
"(2) Interest is payable on the unpaid amount of a
30
progress payment that has become due and
payable in accordance with sub-section (1) at
the greater of the following rates--
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(Amendment) Act 2006
s. 14
Act No.
(a) the rate for the time being fixed under
section 2 of the Penalty Interest Rates
Act 1983; or
(b) the rate specified under the construction
contract.".
5
14. Insertion of section 12A
After section 12 of the Principal Act insert--
"12A. Lien in respect of unpaid progress
payment
(1) If a progress payment under a construction
10
contract becomes due and payable, the
claimant is entitled to exercise a lien in
respect of the unpaid amount over any
unfixed plant or materials supplied by the
claimant for use in connection with the
15
carrying out of construction work for the
respondent.
(2) The claimant must serve a notice in the
prescribed form on the respondent before
exercising a lien under sub-section (1).
20
(3) A lien under sub-section (1) is extinguished
on the claimant receiving the progress
payment.
(4) Any lien or charge over the unfixed plant or
materials existing before the date on which
25
the progress payment becomes due and
payable takes priority over a lien under sub-
section (1).
(5) Sub-section (1) does not confer on the
claimant any right against a third party who
30
is the owner of the unfixed plant or
materials.".
14
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(Amendment) Act 2006
s. 15
Act No.
15. Effect of "pay when paid" provisions
(1) In section 13(1) of the Principal Act--
(a) in paragraph (a), after "carried out" insert
"or undertaken to be carried out";
(b) in paragraph (b), after "supplied" insert
5
"or undertaken to be supplied".
(2) In section 13(2) of the Principal Act, in the
definition of "pay when paid provision"--
(a) in paragraph (b), for "third party." substitute
"third party; or";
10
(b) after paragraph (b) insert--
"(c) that otherwise makes the liability to pay
money owing, or the due date for
payment of money owing, contingent or
dependent on the operation of another
15
contract.".
16. Substitution of section 14
For section 14 of the Principal Act substitute--
'14. Payment claims
(1) A person referred to in section 9(1) who is or
20
who claims to be entitled to a progress
payment (the "claimant") may serve a
payment claim on the person who, under the
construction contract concerned, is or may be
liable to make the payment.
25
(2) A payment claim--
(a) must be in the relevant prescribed form
(if any); and
(b) must contain the prescribed information
(if any); and
30
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(Amendment) Act 2006
s. 16
Act No.
(c) must identify the construction work
or related goods and services to which
the progress payment relates; and
(d) must indicate the amount of the
progress payment that the claimant
5
claims to be due (the "claimed
amount"); and
(e) must state that it is made under this
Act.
(3) The claimed amount--
10
(a) may include any amount that the
respondent is liable to pay the claimant
under section 29(4);
(b) must not include any excluded amount.
15 Note: Section 10(3) provides that a progress payment
must not include an excluded amount.
(4) A payment claim in respect of a progress
payment (other than a payment claim in
respect of a progress payment that is a final,
single or one-off payment) may be served
20
only within--
(a) the period determined by or in
accordance with the terms of the
construction contract in respect of the
carrying out of the item of construction
25
work or the supply of the item of
related goods and services to which the
claim relates; or
(b) the period of 3 months after the
reference date referred to in section
30
9(2) that relates to that progress
payment--
whichever is the later.
16
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(Amendment) Act 2006
s. 16
Act No.
(5) A payment claim in respect of a progress
payment that is a final, single or one-off
payment may be served only within--
(a) the period determined by or in
accordance with the terms of the
5
construction contract; or
(b) if no such period applies, within
3 months after the reference date
referred to in section 9(2) that relates to
that progress payment.
10
(6) Subject to sub-section (7), once a payment
claim for a claimed amount in respect of a
final, single or one-off payment has been
served under this Act, no further payment
claim can be served under this Act in respect
15
of the construction contract to which the
payment claim relates.
(7) Nothing in sub-section (6) prevents a
payment claim for a claimed amount in
respect of a final, single or one-off payment
20
being served under this Act in respect of a
construction contract if--
(a) a claim for the payment of that amount
has been made in respect of that
payment under the contract; and
25
(b) that amount was not paid by the due
date under the contract for the payment
to which the claim relates.
(8) A claimant cannot serve more than one
payment claim in respect of each reference
30
date under the construction contract.
(9) However, sub-section (8) does not prevent
the claimant from including in a payment
claim an amount that has been the subject of
a previous claim if the amount has not been
35
paid.'.
17
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(Amendment) Act 2006
s. 17
Act No.
17. Payment schedules
(1) In section 15(2)(b) of the Principal Act for
'(the "scheduled amount").' substitute
'(the "scheduled amount"); and'.
(2) After section 15(2)(b) of the Principal Act
5
insert--
"(c) must identify any amount of the claim that
the respondent alleges is an excluded
amount; and
(d) must be in the relevant prescribed form
10
(if any); and
(e) must contain the prescribed information
(if any).".
18. Consequences of not paying claimant where no
payment schedule
15
(1) For section 16(2)(a) of the Principal Act
substitute--
"(a) may--
(i) recover the unpaid portion of the
claimed amount from the respondent, as
20
a debt due to the claimant, in any court
of competent jurisdiction; or
(ii) make an adjudication application under
section 18(1)(b) in relation to the
payment claim; and".
25
(2) For section 16(4) of the Principal Act
substitute--
"(4) If the claimant commences proceedings
under sub-section (2)(a)(i) to recover the
unpaid portion of the claimed amount from
30
the respondent as a debt--
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(Amendment) Act 2006
s. 19
Act No.
(a) judgment in favour of the claimant is
not to be given unless the court is
satisfied--
(i) of the existence of the
circumstances referred to in sub-
5
section (1); and
(ii) that the claimed amount does not
include any excluded amount; and
(b) the respondent is not, in those
proceedings, entitled--
10
(i) to bring any cross-claim against
the claimant; or
(ii) to raise any defence in relation to
matters arising under the
construction contract.".
15
19. Consequences of not paying claimant in accordance
with payment schedule
(1) For section 17(2)(a) of the Principal Act
substitute--
"(a) may--
20
(i) recover the unpaid portion of the
scheduled amount from the respondent,
as a debt due to the claimant, in any
court of competent jurisdiction; or
(ii) make an adjudication application under
25
section 18(1)(a)(ii) in relation to the
payment claim; and".
(2) For section 17(4) of the Principal Act
substitute--
"(4) If the claimant commences proceedings
30
under sub-section (2)(a)(i) to recover the
unpaid portion of the scheduled amount from
the respondent as a debt--
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(a) judgment in favour of the claimant is
not to be given unless the court is
satisfied of the existence of the
circumstances referred to in sub-
section (1); and
5
(b) the respondent is not, in those
proceedings, entitled--
(i) to bring any cross-claim against
the claimant; or
(ii) to raise any defence in relation to
10
matters arising under the
construction contract.".
20. Adjudication applications
(1) For sections 18(1) to 18(4) of the Principal Act
substitute--
15
'(1) A claimant may apply for adjudication of a
payment claim (an "adjudication
application") if--
(a) the respondent provides a payment
schedule under Division 1 but--
20
(i) the scheduled amount indicated in
the payment schedule is less than
the claimed amount indicated in
the payment claim; or
(ii) the respondent fails to pay the
25
whole or any part of the scheduled
amount to the claimant by the due
date for payment of the amount; or
(b) the respondent fails to provide a
payment schedule to the claimant under
30
Division 1 and fails to pay the whole or
any part of the claimed amount by the
due date for payment of the amount.
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(2) An adjudication application to which sub-
section (1)(b) applies cannot be made
unless--
(a) the claimant has notified the
respondent, within the period of
5
10 business days immediately
following the due date for payment, of
the claimant's intention to apply for
adjudication of the payment claim; and
(b) the respondent has been given an
10
opportunity to provide a payment
schedule to the claimant within
2 business days after receiving the
claimant's notice.
(3) An adjudication application--
15
(a) must be in writing; and
(b) subject to sub-section (4), must be
made to an authorised nominating
authority chosen by the claimant; and
(c) in the case of an application under sub-
20
section (1)(a)(i), must be made within
10 business days after the claimant
receives the payment schedule; and
(d) in the case of an application under sub-
section (1)(a)(ii), must be made within
25
10 business days after the due date for
payment; and
(e) in the case of an application under sub-
section (1)(b), must be made within
5 business days after the end of the
30
2 day period referred to in sub-section
(2)(b); and
(f) must identify the payment claim and
the payment schedule (if any) to which
it relates; and
35
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(g) must be accompanied by the
application fee (if any) determined by
the authorised nominating authority;
and
(h) may contain any submissions relevant
5
to the application that the claimant
chooses to include.
(4) If the construction contract to which the
payment claim relates lists 3 or more
authorised nominating authorities, the
10
application must be made to one of those
authorities chosen by the claimant.'.
(2) Section 18(6) of the Principal Act is repealed.
(3) In section 18(8) of the Principal Act omit "chosen
by agreement between the claimant and the
15
respondent or".
21. Adjudication responses
(1) In section 21 of the Principal Act--
(a) in sub-section (1), for "The respondent"
substitute "Subject to sub-section (2A), the
20
respondent";
(b) for sub-section (2)(c) substitute--
"(c) must include the name and address of
any relevant principal of the respondent
and any other person who the
25
respondent knows has a financial or
contractual interest in the matters that
are the subject of the adjudication
application; and
(ca) must identify any amount of the
30
payment claim that the respondent
alleges is an excluded amount; and";
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(2) After section 21(2) of the Principal Act insert--
"(2A) The respondent may lodge an adjudication
response only if the respondent has provided
a payment schedule to the claimant within
the time specified in section 15(4) or
5
18(2)(b).
(2B) If the adjudication response includes any
reasons for withholding payment that were
not included in the payment schedule, the
adjudicator must serve a notice on the
10
claimant--
(a) setting out those reasons; and
(b) stating that the claimant has 2 business
days after being served with the notice
to lodge a response to those reasons
15
with the adjudicator.".
(3) In section 21(4) of the Principal Act, after
"entered into a contract" insert "(that is not a
construction contract exempted from this Act
under section 7(2)(b) or 7(2)(ba))".
20
22. Adjudication procedures
(1) For section 22(2) of the Principal Act
substitute--
"(2) An adjudicator must serve a written notice--
(a) on any relevant principal and any other
25
person who is included in the
adjudication response under section
21(2)(c); and
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(b) on any other person who the
adjudicator reasonably believes, on the
basis of any submission received from
the claimant or the respondent, is a
person who has a financial or
5
contractual interest in the matters that
are the subject of the adjudication
application.".
(2) For section 22(4)(b) of the Principal Act
substitute--
10
"(b) within any further time, not exceeding
15 business days after that date, to which the
claimant agrees.".
(3) After section 22(4) of the Principal Act insert--
"(4A) A claimant must not unreasonably withhold
15
their agreement under sub-section (4)(b).".
(4) After section 22(5) of the Principal Act insert--
"(5A) Any conference called under sub-section
(5)(c) is to be conducted informally and the
parties are not entitled to legal representation
20
unless this is permitted by the adjudicator.".
23. Adjudicator's determination
(1) In section 23 of the Principal Act--
(a) in sub-section (1)(b), for "payable."
substitute "payable; and";
25
(b) after sub-section (1)(b) insert--
"(c) the rate of interest payable on that
amount in accordance with section
12(2).";
(c) in the note to sub-section (1), for
30
"section 45(7)" substitute "section 45(8)";
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(d) in sub-section (2) for "is to consider the
following matters only" substitute "must
consider the following matters and those
matters only";
(e) in sub-section (2)(b), for "the provisions"
5
substitute "subject to this Act, the
provisions";
(f) in sub-section (2)(d), after "payment
schedule" insert "(if any)".
(2) After section 23(2) of the Principal Act insert--
10
"(2A) In determining an adjudication application,
the adjudicator must not take into account--
(a) any part of the claimed amount that is
an excluded amount; or
(b) any other matter that is prohibited by
15
this Act from being taken into account.
(2B) An adjudicator's determination is void--
(a) to the extent that it has been made in
contravention of sub-section (2);
(b) if it takes into account any amount or
20
matter referred to in sub-section (2A),
to the extent that the determination is
based on that amount or matter.".
(3) For sections 23(3) and 23(4) of the Principal Act
substitute--
25
"(3) The adjudicator's determination must be in
writing and must include--
(a) the reasons for the determination; and
(b) the basis on which any amount or date
has been decided.
30
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(4) If, in determining an adjudication
application, an adjudicator has, in
accordance with section 11, determined--
(a) the value of any construction work
carried out under a construction
5
contract; or
(b) the value of any related goods and
services supplied under a construction
contract--
the adjudicator (or any other adjudicator) is,
10
in any subsequent adjudication application
that involves the determination of the value
of that work or of those goods and services,
to give the work or the goods and services
the same value as that previously determined
15
unless the claimant or respondent satisfies
the adjudicator concerned that the value of
the work or the goods and services has
changed since the previous determination.".
24. Section 23A inserted
20
After section 23 of the Principal Act insert--
"23A. Adjudication determination to be given to
parties and Building Commission
The authorised nominating authority to
whom the adjudication application was made
25
must give a copy of the adjudication
determination--
(a) to the claimant and the respondent, as
soon as practicable after it is made; and
(b) to the Building Commission within
30
5 business days after it is made.".
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25. Correcting mistakes in determinations
After section 24(2) of the Principal Act insert--
"(3) If a correction is made to a determination
under this section, the authorised nominating
authority to whom the adjudication
5
application was made must give a copy of
the corrected determination to the claimant
and the respondent and the Building
Commission as soon as practicable after the
correction is made.
10
(4) An adjudicator cannot make a correction of a
determination under this section if an
application has been made under
Division 2A for a review of the
determination.".
15
26. Repeal of sections 25 to 27
Sections 25 to 27 of the Principal Act are
repealed.
27. Claimant may make new application if previous
application refused or not determined
20
In section 28(3) of the Principal Act, for
"section 18(3)(b)" substitute "sections 18(3)(c),
18(3)(d) and 18(3)(e)".
28. New Divisions 2A and 2B inserted in Part 3
After section 28 of the Principal Act insert--
25
'Division 2A--Review of Adjudication
28A. Threshold for review
This Division applies in respect of an
adjudication determination if the adjudicated
amount exceeds the higher of--
30
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(a) $100 000; or
(b) the amount prescribed for the purposes
of this section.
28B. Application for review by respondent
(1) Subject to this section, a respondent may
5
apply for a review of an adjudication
determination (an "adjudication review").
(2) An application under this section may only
be made if the respondent provided a
payment schedule to the claimant within the
10
time specified in section 15(4) or 18(2).
(3) An application under this section may only
be made on the ground that the adjudicated
amount included an excluded amount.
(4) An application under this section may only
15
be made if the respondent has identified that
amount as an excluded amount in the
payment schedule or the adjudication
response.
(5) An application under this section may only
20
be made if the respondent has paid to the
claimant the adjudicated amount other than
the amounts alleged to be excluded amounts.
(6) An application under this section may only
be made if the respondent has paid the
25
alleged excluded amounts into a designated
trust account.
28C. Application for review by claimant
(1) Subject to this section, a claimant may apply
for a review of an adjudication determination
30
(an "adjudication review").
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(2) An application under this section may only
be made on the ground that the adjudicator
failed to take into account a relevant amount
in making an adjudication determination
because it was wrongly determined to be an
5
excluded amount.
28D. Procedure for making application
(1) An adjudication review application must be
made to the authorised nominating authority
to which the adjudication application was
10
made.
(2) An adjudication review application must be
made within 5 business days after the
respondent or claimant (as the case requires)
receives a copy of the adjudication
15
determination.
(3) An adjudication review application--
(a) must be in writing in the prescribed
form (if any); and
(b) must contain the prescribed information
20
(if any); and
(c) must be accompanied by the
application fee (if any) determined by
the authorised nominating authority.
(4) The applicant must give a copy of the
25
adjudication review application to the other
party to the adjudication review within one
business day after the application is made.
(5) The authorised nominating authority must as
soon as practicable after receiving an
30
adjudication review application give a copy
of the application to--
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(a) the adjudicator who made the
adjudication determination that is the
subject of the adjudication review; and
(b) the Building Commission.
28E. Right to make submissions
5
A party to an adjudication review may make
a submission to the authorised nominating
authority in response to the application for
review within 3 business days after being
given a copy of the adjudication review
10
application.
28F. Designated trust account
(1) On paying money into a designated trust
account in accordance with section 28B, the
respondent must give the claimant notice of
15
that payment together with particulars
identifying the account and the recognised
financial institution with which the account
is kept.
(2) Subject to sub-section (3), money held in a
20
designated trust account (including any
interest accruing to that money) is taken to
be held on the following trusts--
(a) to the extent to which the money is
required to satisfy the claimant's
25
entitlements, the money is to be applied
in satisfaction of those entitlements;
(b) to the extent to which any of the money
remains in the account after the
claimant's entitlements have been fully
30
satisfied, the money is to be paid to the
respondent.
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(3) If the respondent withdraws the adjudication
review application in accordance with
section 28K, any money held in a designated
trust account (including any interest accruing
to that money) is to be paid to the claimant.
5
(4) Subject to sub-sections (2) and (3), the
regulations may make provision for or with
respect to the establishment and operation of
designated trust accounts.
(5) In this section, "claimant's entitlements",
10
in relation to money held in a designated
trust account, means the amount (if any) to
which the claimant becomes entitled under a
review determination.
28G. Appointment of review adjudicator
15
(1) The authorised nominating authority must,
within 5 business days after receiving an
application for review, appoint a review
adjudicator in accordance with this section
(the "review adjudicator") to conduct the
20
review.
(2) A review adjudicator must be a person who
is eligible to be an adjudicator as referred to
in section 19.
(3) The authorised nominating authority may not
25
appoint an adjudicator who has been
involved directly or indirectly with the
adjudication determination that is the subject
of the adjudication review.
(4) The authorised nominating authority must
30
give each party to the review and the
Building Commission written notice of the
appointment of a review adjudicator.
(5) The notice under sub-section (4) must
include the date of the appointment.
35
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28H. Adjudication review procedures
(1) The adjudication review commences upon
acceptance by the review adjudicator of his
or her appointment as the review adjudicator.
(2) The authorised nominating authority must
5
provide the following information to the
review adjudicator as soon as practicable
after the appointment of the review
adjudicator--
(a) a copy of the adjudication review
10
application; and
(b) a copy of any submission made by a
party to the adjudication review in
accordance with section 28E; and
(c) a copy of the adjudication
15
determination that is the subject of the
adjudication review; and
(d) a copy of the payment claim that relates
to that adjudication determination; and
(e) a copy of each submission considered
20
by the adjudicator who made that
adjudication determination; and
(f) a copy of the payment schedule (if any)
considered by the adjudicator who
made that adjudication determination;
25
and
(g) any other information that the
adjudicator who made the adjudication
determination considered in making
that determination.
30
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28I. Adjudication review determination
(1) A review adjudicator is not to determine an
adjudication application until after the end of
the period within which any party to the
adjudication review may make a submission
5
in accordance with section 28E.
(2) In determining an adjudication review
application, the review adjudicator must
consider the following matters and those
matters only--
10
(a) the provisions of this Act and any
regulations made under this Act; and
(b) the provisions of the construction
contract from which the application
arose; and
15
(c) the information provided by the
authorised nominating authority under
section 28H.
(3) In determining an adjudication review
application, the review adjudicator must not
20
take into account--
(a) any excluded amount; or
(b) any other matter that is prohibited by
this Act from being taken into account.
(4) A review adjudicator's determination is
25
void--
(a) to the extent that it has been made in
contravention of sub-section (2); or
(b) if it takes into account any amount or
matter referred to in sub-section (3), to
30
the extent that the determination is
based on that amount or matter.
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(5) After conducting an adjudication review, a
review adjudicator may--
(a) substitute a new adjudication
determination (the "review
determination") for the determination
5
that is the subject of the adjudication
review; or
(b) confirm the determination that is the
subject of the adjudication review.
(6) In determining an adjudication review, the
10
review adjudicator must--
(a) specify if the review determination
varies the adjudication determination
and how it varies the adjudication
determination; and
15
(b) specify any amounts paid to the
claimant by the respondent in respect of
the adjudication determination; and
(c) determine any further amount that is to
be paid by the respondent to the
20
claimant; and
(d) determine any amount that is to be
repaid by the claimant to the
respondent; and
(e) determine any interest payable in
25
accordance with section 12(2) on an
amount referred to in paragraph (c); and
(f) specify the date on which an amount
under paragraph (c), (d) or (e) becomes
payable.
30
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(7) A review determination must be in writing
and set out the reasons for the review
determination in that determination.
(8) A review adjudicator who makes a review
determination may, if he or she thinks it
5
appropriate, include a statement in the
review determination that in his or her
opinion the application for the adjudication
review was not made in good faith.
(9) The date for payment referred to in sub-
10
section (6)(f) must be 5 business days after
the respondent or claimant (as the case
requires) is given a copy of the review
determination.
(10) The review adjudicator must complete the
15
adjudication review and provide a copy of
the review determination to the authorised
nominating authority that appointed him or
her--
(a) within 5 business days after his or her
20
appointment; or
(b) within any further time, not exceeding
10 business days after that appointment,
to which the applicant for the
adjudication review agrees.
25
(11) An applicant must not unreasonably
withhold their agreement under sub-
section (10)(b).
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28J. Authorised nominating authority must
notify persons of review determination
The authorised nominating authority must, as
soon as practicable, provide a copy of the
review determination to--
5
(a) each party to the adjudication review;
and
(b) the adjudicator who made the
adjudication determination that is the
subject of the adjudication review; and
10
(c) the Building Commission.
28K. Withdrawal of adjudication review
application
An applicant may withdraw an adjudication
review application at any time before the
15
review adjudicator has made a review
determination under section 28I by serving a
notice of withdrawal on--
(a) the review adjudicator; and
(b) the authorised nominating authority that
20
appointed the review adjudicator; and
(c) the other party to the adjudication
review.
28L. Correcting mistakes in review
determinations
25
Section 24 applies to review determinations
as if a reference in that section--
(a) to an adjudicator were a reference to a
review adjudicator; and
(b) to a determination made by an
30
adjudicator were a reference to a review
determination.
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Division 2B--Payment and Recovery of
Adjudicated Amounts
28M. Respondent required to pay adjudicated
amount
(1) Subject to sections 28B and 28N, if an
5
adjudicator determines that a respondent is
required to pay an adjudicated amount, the
respondent must pay that amount to the
claimant on or before the relevant date.
(2) In this section "relevant date" means--
10
(a) the date that is 5 business days after the
date on which a copy of the
adjudication determination is given to
the respondent under section 23A; or
(b) if the adjudicator determines a later
15
date under section 23(1)(b), that later
date.
28N. Payment after review determination
(1) If the respondent is required by a review
determination to pay an amount to the
20
claimant, the respondent must pay that
amount on or before the date for that
payment determined by the review
adjudicator under section 28I(6)(f).
(2) If the claimant is required by a review
25
determination to pay an amount to the
respondent, the claimant must pay that
amount on or before the date for that
payment determined by the review
adjudicator under section 28I(6)(f).
30
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28O. Consequences of respondent not paying
adjudicated amount
(1) If the respondent fails to pay the whole or
any part of an adjudicated amount in
accordance with section 28M or 28N, the
5
claimant may--
(a) request the authorised nominating
authority to whom the adjudication
application or the adjudication review
application was made to provide an
10
adjudication certificate under
section 28Q; and
(b) serve notice on the respondent of the
claimant's intention--
(i) to suspend carrying out
15
construction work under the
construction contract; or
(ii) to suspend supplying related
goods and services under the
construction contract.
20
(2) A notice under sub-section (1)(b) must state
that it is made under section 28O(1) of this
Act.
(3) A notice cannot be served under sub-
section (1) in respect of a failure to pay the
25
whole or any part of an adjudicated amount
in accordance with section 28M until after
the end of the period allowed for making an
adjudication review application under
section 28D.
30
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(4) If the claimant has made an adjudication
review application in respect of any part of
the adjudicated amount, the claimant may
not give a notice under sub-section (1)(b) in
respect of a failure to pay that adjudicated
5
amount in accordance with section 28M until
that adjudication review is completed.
(5) In this section "adjudicated amount"
includes any amount payable by the
respondent under a review determination.
10
28P. Consequences of claimant not paying
adjudicated amount
If the claimant fails to pay the whole or part
of the amount payable by the claimant under
a review determination in accordance with
15
section 28N, the respondent may request the
authorised nominating authority to which the
adjudication review application was made to
provide an adjudication certificate under
section 28Q.
20
28Q. Adjudication certificates
(1) An adjudication certificate provided by an
authorised nominating authority on a request
under this Division must state that it is made
under this Act and specify the following
25
matters--
(a) the name of the person requesting the
certificate;
(b) the name of the person who is liable to
pay the adjudicated amount;
30
(c) the amount payable under section 28M
or 28N;
(d) the date on which payment of that
amount was due to be paid to the
person requesting the certificate.
35
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(2) If any amount of interest that is due and
payable on the amount payable under
section 28M or 28N is not paid by the
respondent, the person requesting the
adjudication certificate may request the
5
authorised nominating authority to specify
the amount of interest payable in the
adjudication certificate.
(3) If an amount of interest is specified in the
adjudication certificate to be paid by the
10
respondent, the amount is to be added to, and
becomes part of, the adjudicated amount.
(4) If the claimant has paid the respondent's
share of the adjudication fees in relation to
the adjudication or the adjudication review
15
fees in relation to any adjudication review
(as the case requires) but has not been
reimbursed by the respondent for that
amount (the "unpaid share"), the claimant
may request the authorised nominating
20
authority to specify the unpaid share in the
adjudication certificate.
(5) If the respondent has paid the claimant's
share of the adjudication review fees in
relation to any adjudication review but has
25
not been reimbursed by the claimant for that
amount, the respondent may request the
authorised nominating authority to specify
that share of the fees in the adjudication
certificate.
30
(6) If the unpaid share is specified in the
adjudication certificate it is to be added to,
and becomes part of, the adjudicated amount.
(7) In this section "adjudicated amount"
includes an amount payable by the
35
respondent or the claimant under a review
determination.
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s. 28
Act No.
28R. Proceedings to recover amount payable
under section 28M or 28N
(1) If an authorised nominating authority has
provided an adjudication certificate to a
person under section 28Q, the person may
5
recover as a debt due to that person, in any
court of competent jurisdiction, the unpaid
portion of the amount payable under
section 28M or 28N.
(2) A proceeding referred to in sub-section (1)
10
cannot be brought unless the person provided
with the adjudication certificate files in the
court--
(a) the adjudication certificate; and
(b) an affidavit by that person stating that
15
the whole or any part of the amount
payable under section 28M or 28N has
not been paid at the time the certificate
is filed.
(3) If the affidavit indicates that part of the
20
amount payable under section 28M or 28N
has been paid, judgment may be entered for
the unpaid portion of that amount only.
(4) Judgment in favour of a person is not to be
entered under this section unless the court is
25
satisfied that the person liable to pay the
amount payable under section 28M or 28N
has failed to pay the whole or any part of that
amount to that first-mentioned person.
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(Amendment) Act 2006
s. 28
Act No.
(5) If a person commences proceedings to have
the judgment set aside, that person--
(a) subject to sub-section (6), is not, in
those proceedings, entitled--
(i) to bring any cross-claim against
5
the person who brought the
proceedings under sub-section (1);
or
(ii) to raise any defence in relation to
matters arising under the
10
construction contract; or
(iii) to challenge an adjudication
determination or a review
determination; and
(b) is required to pay into the court as
15
security the unpaid portion of the
amount payable under section 28M
or 28N pending the final determination
of those proceedings.
(6) Sub-section (5)(a)(iii) does not prevent a
20
person from challenging an adjudication
determination or a review determination on
the ground that the person making the
determination took into account a variation
of the construction contract that was not a
25
claimable variation.
(7) A claimant may not bring proceedings under
this section to recover an adjudicated amount
under an adjudication determination if the
claimant has made an adjudication review
30
application in respect of that determination
and that review has not been completed.
(8) Nothing in this section affects the operation
of any Act requiring the payment of interest
in respect of a judgment debt.'.
35
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(Amendment) Act 2006
s. 29
Act No.
29. Claimant may suspend work
(1) In section 29(1) of the Principal Act--
(a) for "2 business days" substitute "3 business
days";
(b) for "or 27" substitute "or 28O".
5
(2) For section 29(2) of the Principal Act
substitute--
"(2) The right conferred by sub-section (1) exists
until--
(a) if the construction contract provides for
10
a period of at least 1 business day for a
return to work after the claimant
receives payment from the respondent
of an amount referred to in section
16(1), 17(1), 28M or 28N, the end of
15
that period; or
(b) in any other case, the end of the period
of 3 business days immediately
following the date on which the
claimant receives payment from the
20
respondent of an amount referred to in
section 16(1), 17(1), 28M or 28N.".
(3) After section 29(3) of the Principal Act insert--
"(4) If the claimant, in exercising the right to
suspend the carrying out of construction
25
work or the supply of related goods and
services, incurs any loss or expenses as a
result of the removal by the respondent from
the contract of any part of the work or
supply, the respondent is liable to pay the
30
claimant the amount of any such loss or
expenses.
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Building and Construction Industry Security of Payment
(Amendment) Act 2006
s. 30
Act No.
(5) A claimant who suspends construction work
or the supply of related goods and services in
accordance with the right conferred by sub-
section (1) is not liable for any loss or
damage suffered by the respondent, or by
5
any person claiming through the respondent,
as a consequence of the claimant not
carrying out the work or not supplying those
goods and services during the period of
suspension.".
10
30. New section 29A inserted
In Division 4 of Part 3 of the Principal Act, before
section 30 insert--
'29A. Definitions
In this Division--
15
"adjudicated amount" includes an amount
payable under a review determination;
"adjudication determination" includes a
review determination.'.
31. Recovery from principal
20
(1) For section 30(a) of the Principal Act
substitute--
"(a) an adjudicator or a review adjudicator has
determined that an adjudicated amount or
part of an adjudicated amount is payable by a
25
respondent to a claimant in respect of a
construction contract; and".
(2) For section 30(b) of the Principal Act
substitute--
"(b) the respondent fails to pay the whole or any
30
part of the adjudicated amount to the
claimant in accordance with section 28M
or 28N; and".
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(Amendment) Act 2006
s. 32
Act No.
(3) In section 31(1) of the Principal Act, for
"construction contract" substitute "contract".
(4) After section 31(2) of the Principal Act insert--
"(3) Sub-section (1) does not apply to allow the
claimant to obtain payment from a person
5
who has engaged the respondent to carry out
construction work or to supply goods and
services under a construction contract
exempted from this Act under section 7(2)(b)
or 7(2)(ba).".
10
32. Substitution of Division heading
For the heading to Division 5 of Part 3 of the
Principal Act substitute--
"Division 5--Authorised Nominating
Authorities, Adjudicators and Review
15
Adjudicators".
33. Insertion of sections 43A, 43B and 43C
After section 43 of the Principal Act insert--
'43A. Functions of an authorised nominating
authority
20
The functions of an authorised nominating
authority are--
(a) to nominate adjudicators for the
purposes of this Act; and
(b) to receive and refer adjudication
25
applications to adjudicators; and
(c) to receive adjudication review
applications and submissions in
response to those applications and to
appoint review adjudicators; and
30
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Building and Construction Industry Security of Payment
(Amendment) Act 2006
s. 33
Act No.
(d) to serve copies of adjudication
determinations, adjudication review
applications and review determinations
on certain persons; and
(e) to provide information to review
5
adjudicators; and
(f) to provide adjudication certificates; and
(g) to provide information to the Building
Commission in accordance with this
Division; and
10
(h) to generally carry out any other
function or duty given to an authority,
or imposed on an authority, by this Act.
43B. Authorised nominating authority to
provide information
15
(1) An authorised nominating authority must
provide the Building Commission with such
non-identifying information as may be
reasonably requested by the Commission in
relation to the activities of the authority
20
under this Act.
(2) Information requested under sub-section (1)
may include information regarding--
(a) the nomination of adjudicators and
appointment of review adjudicators;
25
and
(b) the assessment of the eligibility of
persons to be adjudicators; and
(c) the fees charged by the authorised
nominating authority; and
30
(d) the fees charged by adjudicators.
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(Amendment) Act 2006
s. 34
Act No.
(3) In this section "non-identifying
information" means information--
(a) that does not identify any person or
disclose their address or location; or
(b) from which any person's identity,
5
address or location cannot reasonably
be determined.
43C. Authorised nominating authority fees
(1) An authorised nominating authority may
charge a fee for any service provided by the
10
authority in connection with an adjudication
application or an adjudication review
application made to the authority.
(2) In deciding on a fee under sub-section (1), an
authorised nominating authority must have
15
regard to the guidelines regarding such fees
issued by the Minister under section 44.'.
34. Ministerial guidelines
For section 44(1) of the Principal Act
substitute--
20
"(1) The Minister may from time to time issue
guidelines relating to--
(a) the giving, variation or withdrawal of
authorities under this Division; and
(b) appropriate fees that may be charged by
25
an authorised nominating authority, an
adjudicator or a review adjudicator.".
47
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Building and Construction Industry Security of Payment
(Amendment) Act 2006
s. 35
Act No.
35. Substitution of section 45
For section 45 of the Principal Act substitute--
'45. Adjudicator's and review adjudicator's
fees
(1) In this section--
5
"adjudicator" includes a review
adjudicator;
"adjudication application" includes an
adjudication review application.
(2) An adjudicator is entitled to be paid for
10
determining an adjudication application--
(a) the amount, by way of fees and
expenses, that is agreed between the
adjudicator and the parties to the
adjudication; or
15
(b) if no amount is agreed, the amount, by
way of fees and expenses, that is
reasonable having regard to the work
done and expenses incurred by the
adjudicator.
20
(3) The claimant and respondent are jointly and
severally liable to pay the adjudicator's fees
and expenses.
(4) As between themselves, the claimant and
respondent are each liable to contribute to
25
the adjudicator's fees and expenses in equal
proportions or in such proportions as the
adjudicator may determine.
(5) An adjudicator is not entitled to be paid any
fees or expenses in connection with the
30
determination of an application if he or she
fails to make a decision on the application
(otherwise than because the application is
withdrawn or the dispute between the
48
551298B.A1-14/6/2006 BILL LA AS SENT 14/6/2006
Building and Construction Industry Security of Payment
(Amendment) Act 2006
s. 35
Act No.
claimant and respondent is resolved) within
the time allowed by section 22(4) or 28I(10)
(as the case requires).
(6) Sub-section (5) does not apply--
(a) in circumstances in which an
5
adjudicator refuses to communicate his
or her decision on an adjudication
application until his or her fees and
expenses are paid; or
(b) in such other circumstances as may be
10
prescribed for the purposes of this
section.
(7) If a party refuses to pay his or her required
contribution to the amount of the fees and
expenses that are payable to the adjudicator,
15
the other party may elect to pay both parties'
contribution to the adjudicator.
(8) If a party elects under sub-section (7) to pay
the other party's contribution to the
adjudicator, the adjudicator, as the case
20
requires--
(a) must determine that that amount is to
be added to the adjudicated amount
determined under section 23 and the
total of those amounts is then to be
25
taken to be the adjudicated amount for
the purposes of this Act; or
(b) must determine that that amount is to
be added to the amount payable (if any)
by the other party under the review
30
determination and the total of those
amounts is then to be taken to be the
amount payable by the other party
under the review determination for the
purposes of this Act.'.
35
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(Amendment) Act 2006
s. 36
Act No.
36. Liability of adjudicator
In section 46 of the Principal Act, after
"adjudicator" insert "(including a review
adjudicator)".
37. Insertion of new Part 3A
5
After Part 3 of the Principal Act insert--
"PART 3A--ADMINISTRATION
47A. Functions of the Building Commission
The functions of the Building Commission
under this Act are--
10
(a) to keep under regular review the
administration and effectiveness of this
Act and the regulations; and
(b) to keep a register of authorised
nominating authorities in accordance
15
with section 47B; and
(c) to keep records of adjudication
determinations and review
determinations in accordance with
section 47C; and
20
(d) to publish adjudication determinations
and review determinations in
accordance with section 47C; and
(e) generally to carry out any other
function or duty given to it, or imposed
25
on it, by this Act.
47B. Register of authorised nominating
authorities
(1) The Building Commission must keep a
register containing details of authorised
30
nominating authorities including the names
of the principals and the contact details of
those authorities.
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(Amendment) Act 2006
s. 38
Act No.
(2) The Building Commission must make the
register available for inspection without
charge to any person at the business address
of the Building Commission during normal
business hours.
5
47C. Recording and publishing of
determinations
(1) The Building Commission must keep a
record of any adjudication determinations or
review determinations that it receives.
10
(2) The Building Commission may publish
information in a determination received
under section 23A or 28J if--
(a) the information does not identify any
person or body referred to in the
15
determination or disclose the address or
location of that person or body; and
(b) the identity, address or location of any
person or body referred to in the
determination cannot reasonably be
20
determined from the information.".
38. Substitution of sections 48 and 49
For sections 48 and 49 of the Principal Act
substitute--
"48. No contracting out
25
(1) The provisions of this Act have effect despite
any provision to the contrary in any contract.
(2) A provision of any agreement, whether in
writing or not--
(a) under which the operation of this Act
30
is, or is purported to be, excluded,
modified or restricted, or that has the
effect of excluding, modifying or
restricting the operation of this Act; or
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Building and Construction Industry Security of Payment
(Amendment) Act 2006
s. 39
Act No.
(b) that may reasonably be construed as an
attempt to deter a person from taking
action under this Act--
is void.
49. Confidentiality
5
The Building Commission, the
Commissioner (within the meaning of the
Building Act 1993) and any member of staff
of the Building Commission must not use or
disclose any information received by the
10
Building Commission under this Act except
to the extent necessary for the performance
of any functions or duties or the exercise of
any powers of the Building Commission
under this Act.".
15
39. Service of notices
In section 50(1) of the Principal Act--
(a) in paragraph (d), for "section." substitute
"section; or";
(b) after paragraph (d) insert--
20
"(e) in any other manner specified in the
relevant construction contract.".
40. Supreme Court--limitation of jurisdiction
At the end of section 51 of the Principal Act
insert--
25
"(2) It is the intention of section 28R to alter or
vary section 85 of the Constitution Act
1975.".
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Building and Construction Industry Security of Payment
(Amendment) Act 2006
s. 41
Act No.
41. Insertion of additional regulation-making powers
For sections 52(1) and 52(2) of the Principal Act
substitute--
"(1) The Governor in Council may make
regulations for or with respect to--
5
(a) prescribing forms for any purpose of
this Act;
(b) prescribing information to be provided
under this Act;
(c) any other matter or thing required or
10
permitted by this Act to be prescribed
or necessary to be prescribed to give
effect to this Act.
(2) Regulations made under this Act--
(a) may provide in a specified case or class
15
of cases for the exemption of persons or
things or a class of persons or things
from any of the provisions of this Act
whether unconditionally or on specified
conditions and either wholly or to such
20
an extent as is specified; and
(b) may differ according to differences in
time, place and circumstance.".
42. Substitution of section 53
For section 53 of the Principal Act substitute--
25
'53. Transitional provision--Building and
Construction Industry Security of
Payment (Amendment) Act 2006
This Act as amended by the Building and
Construction Industry Security of
30
Payment (Amendment) Act 2006 ("the
2006 Act") does not apply to or in respect of
a payment claim for a progress payment to
which a person is entitled under a
53
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Building and Construction Industry Security of Payment
(Amendment) Act 2006
s. 43
Act No.
construction contract entered into before the
commencement of section 42 of the 2006
Act and any such payment claim is to be
dealt with in accordance with this Act as if
the 2006 Act had not been enacted.'.
5
43. Repeal of section 54
Section 54 of the Principal Act is repealed.
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Building and Construction Industry Security of Payment
(Amendment) Act 2006
Endnotes
Act No.
ENDNOTES
By Authority. Government Printer for the State of Victoria.
55
551298B.A1-14/6/2006 BILL LA AS SENT 14/6/2006
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