Proposed amendments to Building and Construction Industry
Payments Act 2004 (QLD) ("BCIPA")
have been approved by Cabinet and are presently being debated by
State Parliament. The changes are likely to come into effect on 1
All members of the building and construction industry should be
aware of these proposed reforms, which will significantly change
the recovery of payments process in building and construction
projects if they are adopted.
The amendments relate to 3 key areas:
the appointment of adjudicators and the adjudication
timeframes for claimants and respondents to a payment claim;
the ability to provide additional information during the
The amendments aim to ensure a fair and equitable statutory
recovery process for all parties involved in construction contracts
and to "level the playing field". We summarise the key
Claimants will no longer be able to choose their adjudicators.
Instead, a single Adjudication Registry will be established within
the Queensland Building and Construction Commission
("QBCC"), who will appoint an
adjudicator after the QBCC has assessed the facts of each claim.
This is to ensure that an adjudicator with appropriate skills is
assigned to a claim to facilitate a fair outcome.
The adjudication registry will maintain a list of qualified
adjudicators which includes information on the adjudicator's
skills, experience and expertise.
Any adjudication application made after 1 September 2014 should
be made to the QBCC for the appointment of an adjudicator.
Claimants will also now be able to withdraw adjudication
applications if they wish. Previously, claimants could not withdraw
their adjudication applications.
The amendments to BCIPA alter the timeframes for the filing of
payment claims, payment schedules, adjudication applications and
adjudication responses. The amendments also introduce two
categories of claims dependent upon quantum:
claims less than $750,000; and
claims more than $750,000 or a claim for a latent
condition/time related cost.
The timeframes for the two categories of claim differ.
They are summarised at Addendum A.
Importantly, contracts entered into before 1 September 2014 will
not be subject to these reforms and the old BCIPA time limits will
apply. The new time limits will only apply to contracts entered
into from 1 September 2014.
Another key (and welcome) change is that the definition of a
business day now effectively excludes the period from 22 December
to 10 January of each year to reflect the industry shutdown and to
ensure respondents are not prejudiced. In other words, time stops
running for the period of the Christmas and New Year closure.
The change is designed, in part, to prevent a practice adopted
by some industry participants of serving a payment claim on
Christmas Eve to limit a respondent's ability to effectively
PROVISION OF ADDITIONAL MATERIAL IN ADJUDICATION RESPONSE
Respondents can now include in their adjudication response
additional reasons and evidence not included in their Payment
Schedule. Previously respondents were confined to grounds they
raised in the Payment Schedule only.
This is an important reform which recognises that while
claimants have had significant time to prepare a Payment Claim,
respondents have had only 10 business days to prepare a Payment
Schedule, so from time to time information is simply missed.
Whether a claimant should be allowed to respond to any new
issues raised in an Adjudication Response is now subject to the
discretion of the adjudicator.
The proposed changes level the playing field, particularly for
Respondents, and will result in a fairer claims process.
Whilst the reforms have yet to pass Parliament, it is likely
that they will. Note the changes and be ready for their likely
introduction on 1 September 2014.
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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