Your contract is terminated and there are amounts still owing to
you – can you use the Building and Construction Industry
Payments Act 2004 (Qld) (BCIPA) to make another claim? The answer,
according a recent Queensland Supreme Court decision, is only if
you have an available reference date which arose before termination
because reference dates (being dates from which a payment claim can
be made) stop accruing post termination.
This decision is unique to Queensland. For example, current law
states that reference dates will accrue post termination under the
New South Wales equivalent of the BCIPA.
Recap: what are reference dates?
A claimant under the BCIPA can only serve a payment claim from
each reference date.
A reference date is (essentially) a date stated in the contract
on which a claim for a progress payment may be made. If the
contract says the contractor can make a progress claim, payment
claim or claim for payment, whatever it happens to be called, on
the 25th day of each month, then the reference date will be the
25th day of each month.
A claimant can only make one payment claim from each reference
date. So a claimant who serves a claim on 27 October 2011 cannot
then serve another payment claim until 25 November 2011; if it
does, the later payment claims up until 25 November 2011 will be
What you need to know
If making a claim under the BCIPA then remember that no more
reference dates will accrue post termination of the contract.
So if your contract provides that the reference date is the 25th
day of each month and the contract is terminated on 1 December
2011, the only reference date left available to a claimant will be
25 November 2011. Because the claimant can only serve one payment
claim for each reference date, it will only have one more
opportunity to serve a valid payment claim under the BCIPA.
Therefore, if a claimant is planning to serve one claim on 4
December 2011 thinking that it will have another chance to put in
another claim from 25 December 2011, think again. It will,
according to that example, only have one shot at adjudication post
However there is an exception: reference dates will continue to
accrue post termination if the contract includes a term that the
right to make a progress claim survives termination. This is a
rare, almost non-existent, clause (you can understand why
– it doesn't make much sense for a contractor to have
a right to submit claims for payment post termination). However it
is worth bearing mind when negotiating your contract.
The principle that reference dates do not accrue post
termination was determined by the recent Queensland Supreme Court
decision of Walton Construction (Qld) Pty Ltd v Corrosion Control
Technology Pty Ltd & Ors  QSC 67.
The contract set the reference date as the 21st day of each
month. The contract was terminated on 15 January 2010. The
subcontractor served payment claims on 21 February 2010 and 22
March 2010. The subcontractor sought adjudication of the 22 March
2010 payment claim. The adjudicator's decision for the 22 March
2010 payment claim was void because it was the second payment claim
made for the 21 December 2009 reference date; reference dates did
not accrue post termination.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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