Given the current economic climate, decreasing margins
and increased resources to engage in disputes, there will be a
logical increase in payment claims and adjudications under the
Buildingand Construction Industry Payments Act
2004 (QLD) (BCIPA) in the forthcoming year.
Managing payments is particularly critical over the festive
season where ambush tactics and a lack of resources due to holidays
can lead to an influx of payment claims/adjudication applications
hoping to catch out unwary respondents.
By adopting some of the strategies below you can better protect
your cash flow.
Be prepared for claims/applications in early January. The
definition of 'business day' under the BCIPA excludes
public holidays and 27, 28, 29, 30 and 31 December. This means that
the next business day following Christmas will be Friday, 2 January
Ensure that your staff, including accounts, can identify a
payment claim. The critical words to be aware of are 'This is a
payment claim made under the Building and Construction Industry
Payments Act 2004'. A failure to respond within 10
business days (or an earlier period under the contract) with a
payment schedule may mean the claim becomes a statutory debt ie you
have to pay the full amount of the claim. So it is vital that
payment claims are not left sitting in someone's in tray.
Monitor all ways in which a payment claim may be served. The
methods of service of claims/applications are primarily delivering,
posting or faxing to a head office, registered office or principal
office. Be aware that in some circumstances adjudicators have
accepted that payment claims can also be served by email,
particularly if the contract allows the use of email or that has
been a practice of the parties in the past. Further, fax machines
need to be checked at a minimum on a daily basis for claims.
Staff at your registered office need to be aware of payment
claims and the risk in not responding to such claims. At least one
member of staff who is well informed on payment claims should man
your offices during the January period.
If possible (and obviously subject to the contract), agree for
claims to be made by no later than 24 December 2008 for the
December/January period. Further, if claims can be made in January
2009, agree on the manner of service - ie agree that the claim is
also to be emailed to relevant personnel, such as a site foreman or
project manager, working in January 2009.
This publication is intended as a first point of reference
and should not be relied on as a substitute for professional
advice. Specialist legal advice should always be sought in relation
to any particular circumstances and no liability will be accepted
for any losses incurred by those relying solely on this
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