The Queensland Government has passed important changes
to the transitional arrangements in the Building and
Construction Industry Payments Amendment Act 2014 (Amendment
The changes address concerns previously raised about the
creation of a dual system for contracts entered into prior to the
Amendment Act and those entered into afterwards. Under the new
transitional arrangements the different timeframes and procedures
for existing or new contracts will be quickly eliminated.
The Amendment Act is due to commence on a date set by
Proclamation (which has not yet occurred).
Given the changes to broaden the application of the new
definition of 'business day', which excludes any day
occurring between 22 December until 10 January, it is likely the
Amendment Act will commence before 22 December 2014 so the new
shutdown period applies over the 2014 / 15 Christmas break.
The Amendment Act was passed on 11 September 2014 and introduced
changes in relation to the recovery of progress payments and the
adjudication process under the Building and Construction Industry
Payments Act 2004 (Qld) (BCIP Act) as discussed in our previous
ACT WILL APPLY TO ALL CONSTRUCTION CONTRACTS
On 26 November 2014, new transitional arrangements were
introduced1 (Further Changes) so that
the amended BCIP Act procedures will apply to all new payment
claims, regardless of whether they relate to contracts created
before or after the commencement of the Amendment Act. Limited
transitional arrangements will apply for existing contracts in
relation to payment claims already made and the time in which
claimants can lodge a payment claim under the BCIP Act.
Previously, the amendments only applied to contracts entered
into after the commencement of the Amendment Act (except for
changes relating to Authorised Nominating Authorities
The key changes are outlined below.
Application of new definition of
Applies to all payment claims (and any
subsequent adjudication), regardless of whether the contract
existed at the date of commencement.
Adjudication Application made to an ANA
but not yet referred to an adjudicator
The ANA must refer the application to an adjudicator registered
with the Adjudication Registry (operating under the Queensland
Building and Construction Commission).
Payment claim served on a respondent
before commencement of the Amendment Act
A 'transitional version' of the unamended Act will
The payment claims process under the unamended Act will continue
to have effect but will include changes in relation to the:
transfer of functions from ANAs to the Adjudication Registry,
including appointment of adjudicators;
process for lodging adjudication applications with the
new section 35B (withdrawal of an adjudication
new section 100(4) (treatment of decisions affected by
jurisdictional error); and
new definition of business day.
Serving new payment claims under the BCIP
Act for existing contracts
The new procedures in the Amendment Act apply to all payment
claims made after its commencement, regardless of when the contract
was entered into.
Time for lodging new payment claims for
Two transitional provisions apply for the first six
months after the commencement of the Amendment Act.
The new six month maximum period for serving the payment claim
under section 17A(2)(b) or (3)(c) will be extended to twelve
This means that a claimant who has an existing valid payment
claim at the commencement of the Amendment Act, but more than six
months have passed after the work was carried out, will not be
If a claimant's right to a payment claim has expired at the
commencement of the Amendment Act it will be not be revived by the
application of the new provision in section 17A(3)(b), which
enables a claimant to make a final payment claim 28 days after the
expiry of the end of the last defects liability period (if any)
under the contract.
1Clauses 15A and 15B of the Health
Legislation Amendment Act 2014 introduced new transitional
arrangements to the Building and Construction Industry Payments
Amendment Act 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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