The Bill had been expected to be passed and in force by now, but
it was delayed for further public consultation by way of a
Parliamentary Committee. That process resulted in the Committee
supporting the passage of the Bill but making 18 recommendations
for amendment, only some of which have been incorporated into the
Bill in its final form.
Adjudication: the Bill maintains the
establishment of a single adjudication registry administered by the
QBCC which is responsible for the appointment of adjudicators. This
is perhaps the most controversial aspect of the Bill as it sees the
abolition of the role of authorised nominating authorities.
Contracts covered by the amended Act: the
QBCC's appointing role and other functions start at the
commencement of the amended Act (to be fixed by Proclamation), but
the other revised processes of the Act (discussed below) only apply
to contracts entered into after the commencement of the amended
Standard vs complex claims: the Bill as passed
retains the original Bill's creation of two types of payment
claim – standard and complex – with different
timeframes applying to each, but simplifies the meaning of complex
claims to only those which claim more than $750,000 (exclusive of
GST) and does not require a claimant to state in its payment claim
whether the claim is standard or complex.
Timeframes: the Bill makes only two changes to
the different timeframes and processes for complex claims that were
laid out in the original Bill. Now, a claimant must tell the
adjudicator if it intends giving a claimant's reply to new
reasons in a payment schedule. There is also an effort to clarify
when an adjudicator must deliver a decision.
Second chances for payment schedules: the Bill
removes an anomaly in the original Bill that, even where a payment
schedule is given in response to a payment claim, a respondent must
be given a second chance to serve a payment schedule before court
proceedings can be started to recover an unpaid scheduled
Policy-making powers of the QBCC: the Board of
the QBCC will be able to make policy governing the administration
of the Act, including the establishment of criteria and a set of
principles for the ranking and appointment of adjudicators.
What's not happening (yet)
The recommendation of the Committee that the amending
legislation empower adjudicators to direct the release of
securities and retention moneys has been deferred for further
investigation and possible future amendment of the Act. The
possible establishment of a statutory retention trust fund has also
What you should do now
As the Act is expected to commence by the end of the year,
it's important that you start looking at your own internal
processes to be sure they will comply with the new regime.
For claimants, this means understanding not just the new
timeframes and processes, but also the crucial new distinction
between standard and complex payment claims. Although they
won't need to determine this themselves by stating it in their
payment claims, they will still need to take into account the
different consequences for each type of claim.
As for respondents, they cannot assume that the longer
timeframes will absolve them of the responsibility to deal promptly
and properly with payment claims – because they
Claimants, respondents and adjudicators will also need to keep
watching developments in this area, as finer details are to be set
out in regulations, which will be made soon. We'll keep you
Clayton Utz communications are intended to provide
commentary and general information. They should not be relied upon
as legal advice. Formal legal advice should be sought in particular
transactions or on matters of interest arising from this bulletin.
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