Recent QLD. BCIPA Changes

QLD. BCIPA Changes take effect from 15 December

Changes to the Queensland Building and Construction Industry Payments Act 2006 (BCIPA) are effective from Monday 15 December 2014.

The changes result from the commencement of the Building and Construction Industry Payments Amendment Act 2014, which was enacted in September 2014. However, that Act was itself amended by the Health and Other Legislation Amendment Act on 5 December 2014, which significantly altered the transition provisions from what had been previously publicised.

The Building and Construction Industry Payments Amendment Regulation (No.1) 2014 also came into force on the same day, and specifies the costs of adjudication and times when applications will be deemed to have been made.

Industry participants must ensure they are aware of the actual changes that are now in force.

What This Now Means For Adjudication in Queensland

  • Payment Claims can only be served within 6 months of when the work was last carried out (reduced from 12), or 28 days after the defects liability period if it is a final claim (new provision).
  • Definition of Business Days excludes 3 days before Christmas and 10 days after New Year’s Day.
  • A claimant cannot start court proceedings for debt recovery on an unanswered payment claim without notifying the respondent and giving them a further 5 days to serve a payment schedule.
  • All adjudication applications must be submitted to the Adjudication Registrar in the QBCC.
  • Applications must be submitted between 8am and 5pm on business days. Late applications are taken to be lodged next business day.
  • Adjudication fees are regulated by the Adjudication Registrar.
  • Adjudicator is entitled to be paid if they determine there is no jurisdiction to decide the matter.
  • If a payment claim is for up to $750,000, then:
    • It is classified as a simple claim;
    • Respondent has 10 days to serve a payment schedule;
    • Respondent has 10 days to submit a response to an adjudication application (up from 5);
      • Respondent can not include reasons for withholding payment that were not in the payment schedule;
    • Adjudicator has 10 days to make a decision.
  • If a payment claim is for above $750,000, then:
  • It is classified as a complex claim;
  • Respondent has 15 days to serve a payment schedule (up from 10);
    • Increases to 30 days if payment claim is 90 days after the reference date
  • Respondent has 15 days to submit a response to an adjudication application (up from 5);
  • Can apply to adjudicator for an additional 15 days;
  • Respondent can include reasons for withholding payment that were not in the payment schedule;
  • Applicant has 15 days to respond to new reasons and can request an additional 15 days;
  • If the Adjudicator requests additional time but the parties fail to agree, the Adjudicator is granted an additional 5 days.
  • Adjudicator has 15 days to make a decision (up from 10):
  • A claimant has an express right to withdraw an adjudication application.
  • If a court finds only part of an Adjudicator’s decision is void the Court may sever that part and uphold the rest of the decision.
  • The new procedures apply to new matters under all contracts, including contracts entered into before 15 December 2014.

Transition Procedures

If a payment claim was submitted before 15 December, it will follow the procedures and timeframes of the unamended Act until the claim is resolved. However:

  • Any subsequent adjudication application is made to the Registrar;
  • The definition of Business Days changes.

For contracts entered into before 15 December 2014 the 6 month window for submitting claims after work ends is extended to 12 months.

  • This provision will expire on 15 June 2015.

The new provision for a final claim at the end of the defects liability period will not revive a right to claims that had expired under the unamended Act.

The above is not a complete list of the changes and industry participants are advised to seek legal advice on how the changes affect their specific circumstances.