The Building and Construction Industry Payments Amendment
Act 2014 (Amendment Act) which amends the
Building and Construction Industry Payments Act 2004
(BCIPA) is effective from today. The Amendment Act
was passed by Parliament on 11 September 2014 and received Royal
Assent on 26 September 2014.
In this Alert, Partner Adam Carlton-Smith and Senior Associate
Michelle Hall discuss the amendments and their impact on the
Impact on the Christmas and New Year period
The Amendment Act was amended by legislation passed by
Parliament on 26 November 2014 in relation to transitional
arrangements (Transitional Arrangement
The Transitional Arrangement Changes arose because of various
concerns raised by Queensland Law Society, including how the
amended definition of business day would apply to existing
contracts entered into before commencement of the Amendment
In response to the concerns raised, the Transitional Arrangement
Changes clarify that for the upcoming Christmas and New Year period
there will be a moratorium for the period 22 December to 10
January. This applies to all steps in the adjudication process,
including but not limited to timeframes for payment schedules,
adjudication applications and adjudication responses.
Whilst the Christmas and New Year shut down period has been
extended by the new definition of business day, both claimants and
respondents need to be careful over the holiday period,
particularly when many businesses are either closed or operating on
For example, from a claimants perspective, a claimant should be
aware that the timing of service of a payment claim or adjudication
application may affect when a response is due depending upon when
service is performed, and should plan accordingly. From a
respondent's perspective, whilst the amendment to the
definition of business day would be no doubt welcomed it should
still be careful to monitor the receipt of documents at all
potential places of service. That may be by monitoring emails,
facsimiles, an address of service nominated in a contract or
another address, or in the case of a company, a registered
Further, the parties should familiarise themselves with the new
timeframes provided for in the Amendment Act to ensure that dates
are not missed. In this regard, we refer to our earlier
Other changes under the Transitional Arrangement Changes
In addition to the above, the Transitional Arrangement Changes
made some further amendments in relation to transitional
arrangements under the Amendment Act.
In summary, these amendments include but are not limited to the
As stated above, the new procedures of the Amendment Act will
apply to all payment claims made after commencement of the
Amendment Act, regardless of whether the contract was existing at
the date of commencement of the Amendment Act.
The new sections in the Amendment Act relating to the express
right for a claimant to withdraw from an adjudication application
and the new section relating to the treatment by a Court of a
decision affected by jurisdictional error (being the section that
provides that where a decision is affected by jurisdiction error
the Court may allow the part of the decision not affected by the
error to remain binding) will apply to payment claims served before
commencement of the Amendment Act.
The new six month maximum period for a payment claim set out in
the Amendment Act will be extended to a period of 12 months
(instead of six months) for payment claims and final payment claims
arising out of contacts entered into before commencement of the
Amendment Act. This will only apply for a period of six months
after commencement of the Amendment Act. The intention here is that
a claimant who at the commencement of the Amendment Act has an
existing valid claim more than six months after the work was
carried out will not be disadvantaged.
The amendments to BCIPA are significant and will affect all
aspects of the construction industry. Claimants and respondents
should familiarise themselves with the changes in light of the
impending changes to the security of payment system in Queensland.
If you are a claimant or a respondent in the upcoming Christmas
period and are contemplating serving a payment claim or
adjudication application or expect to receive a payment claim or
adjudication application and are uncertain of the new procedures
please do not hesitate to contact us.
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