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Queensland
Building and Construction
Industry Payments
Amendment Bill 2014
Queensland
Building and Construction Industry
Payments Amendment Bill 2014
Contents
Page
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
4 Amendment of s 4 (Effect of giving notice of claim of charge
under Subcontractors' Charges Act 1974) . . . . . . . . . . . . . . . . . . 6
5 Amendment of s 17 (Payment claims) . . . . . . . . . . . . . . . . . . . . . 6
6 Insertion of new s 17A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
17A Time requirements for payment claims . . . . . . . . . . . 7
7 Amendment of s 18 (Payment schedules) . . . . . . . . . . . . . . . . . . 8
8 Insertion of new s 18A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
18A Time requirements for payment schedules . . . . . . . . 9
9 Replacement of s 19 (Consequences of not paying claimant if
no payment schedule) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
19 Consequences of not paying claimant if no payment
schedule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
10 Amendment of s 20 (Consequences of not paying claimant
under payment schedule) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
11 Insertion of new s 20A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
20A Notice required before starting proceedings to
recover unpaid portion as a debt . . . . . . . . . . . . . . . . 11
12 Amendment of s 21 (Adjudication application) . . . . . . . . . . . . . . . 12
13 Amendment of s 23 (Appointment of adjudicator) . . . . . . . . . . . . 13
14 Replacement of s 24 (Adjudication responses) . . . . . . . . . . . . . . 13
24 Adjudication responses . . . . . . . . . . . . . . . . . . . . . . . 13
24A Time requirements for adjudication response . . . . . . 14
24B Reply to new reasons for withholding payment . . . . . 15
15 Replacement of s 25 (Adjudication procedures) . . . . . . . . . . . . . 16
Building and Construction Industry Payments Amendment Bill 2014
Contents
25 Adjudication procedures. . . . . . . . . . . . . . . . . . . . . . . 16
25A Time requirements for adjudication proceedings . . . . 18
25B Extension of time requirements by adjudicator. . . . . . 19
16 Amendment of s 30 (Consequences of not paying claimant
adjudicated amount). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
17 Amendment of s 32 (Claimant may make new application in
certain circumstances) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
18 Amendment of s 33 (Claimant may suspend work) . . . . . . . . . . . 20
19 Replacement of s 34 (Authorised nominating authority's fees) . . 20
34 Incorrectly identified standard and complex payment claims
20
20 Amendment of s 35 (Adjudicator's fees). . . . . . . . . . . . . . . . . . . . 21
21 Insertion of new ss 35A and 35B . . . . . . . . . . . . . . . . . . . . . . . . . 22
35A Matters to be considered in deciding fees . . . . . . . . . 22
35B Withdrawing from adjudication . . . . . . . . . . . . . . . . . . 23
22 Amendment of s 38 (Registrar's functions and powers) . . . . . . . . 23
23 Amendment of s 39 (Delegation by registrar). . . . . . . . . . . . . . . . 24
24 Omission of s 40 (Acting registrar) . . . . . . . . . . . . . . . . . . . . . . . . 24
25 Amendment of s 41 (Annual report on operation of Act and
registry) ....................................... 24
26 Omission of pt 4, div 2 (Registration of authorised nominating
authorities) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
27 Amendment of s 68 (Form of certificate of registration) . . . . . . . . 25
28 Amendment of pt 4, div 4, hdg (Renewals of registrations of
authorised nominating authorities and adjudicators) . . . . . . . . . . 25
29 Amendment of s 69 (Definitions for div 4) . . . . . . . . . . . . . . . . . . 25
30 Amendment of pt 4, div 5, hdg (Amendment of registrations of
authorised nominating authorities and adjudicators) . . . . . . . . . . 25
31 Amendment of s 73 (Definitions for div 5) . . . . . . . . . . . . . . . . . . 26
32 Amendment of pt 4, div 6, hdg (Suspension or cancellation of
registrations of authorised nominating authorities and
adjudicators) .................................... 26
33 Amendment of s 76 (Definitions for div 6) . . . . . . . . . . . . . . . . . . 26
34 Amendment of s 84 (Effect of suspension or cancellation of
registration of authorised nominating authority or adjudicator) . . 27
35 Amendment of pt 4, div 7, hdg (Other provisions about
registrations of authorised nominating authorities and
adjudicators) .................................... 27
36 Amendment of s 86 (Definitions for div 7) . . . . . . . . . . . . . . . . . . 27
37 Amendment of s 100 (Effect of pt 3 on civil proceedings) . . . . . . 28
Page 2
Building and Construction Industry Payments Amendment Bill 2014
Contents
38 Omission of s 101 (Adjudicator must give copy of decision to
authorised nominating authority) . . . . . . . . . . . . . . . . . . . . . . . . . 28
39 Replacement of s 102 (Authorised nominating authority must
give information to registrar). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
102 Adjudicator must give information to registrar . . . . . . 28
40 Amendment of s 105 (Evidentiary aids) . . . . . . . . . . . . . . . . . . . . 29
41 Amendment of s 107 (Protection from liability for adjudicators
and authorised nominating authorities) . . . . . . . . . . . . . . . . . . . . 29
42 Amendment of pt 7, hdg (Transitional) . . . . . . . . . . . . . . . . . . . . . 29
43 Insertion of new pt 7, div 1, hdg . . . . . . . . . . . . . . . . . . . . . . . . . . 29
44 Insertion of new pt 7, div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Division 2 Transitional provisions for Building and
Construction Industry Payments Amendment
Act 2014
113 Registration of authorised nominating authorities . . . 30
114 Applications to authorised nominating authorities for
adjudication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
45 Amendment of sch 2 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 31
Page 3
2014
A Bill
for
An Act to amend the Building and Construction Industry
Payments Act 2004 for particular purposes
Building and Construction Industry Payments Amendment Bill 2014
[s 1]
The Parliament of Queensland enacts-- 1
Clause 1 Short title 2
This Act may be cited as the Building and Construction 3
Industry Payments Amendment Act 2014. 4
Clause 2 Commencement 5
This Act commences on a day to be fixed by proclamation. 6
Clause 3 Act amended 7
This Act amends the Building and Construction Industry 8
Payments Act 2004. 9
Clause 4 Amendment of s 4 (Effect of giving notice of claim of 10
charge under Subcontractors' Charges Act 1974) 11
(1) Section 4(4)(a), `section 18(5)'-- 12
omit, insert-- 13
section 19(2) 14
(2) Section 4(4)(b), `section 19(2)(a)(i)'-- 15
omit, insert-- 16
section 19(3)(a)(i) 17
(3) Section 4(4)(d)(ii), `an authorised nominating authority'-- 18
omit, insert-- 19
the registrar 20
(4) Section 4(5), `34 or'-- 21
omit. 22
Clause 5 Amendment of s 17 (Payment claims) 23
(1) Section 17(2)-- 24
Page 6
Building and Construction Industry Payments Amendment Bill 2014
[s 6]
insert-- 1
(d) must identify whether it is a standard 2
payment claim or complex payment claim. 3
(2) Section 17(4) to (6)-- 4
omit, insert-- 5
(4) A claimant can not serve more than 1 payment 6
claim for each reference date under the 7
construction contract, but may include in any 8
payment claim an amount that has been the 9
subject of a previous payment claim. 10
Clause 6 Insertion of new s 17A 11
After section 17-- 12
insert-- 13
17A Time requirements for payment claims 14
(1) This section applies if a claimant serves a 15
payment claim on a respondent. 16
(2) Unless the payment claim relates to a final 17
payment, the claim must be served within the 18
later of-- 19
(a) the period, if any, worked out under the 20
relevant construction contract; or 21
(b) the period of 6 months after the construction 22
work to which the claim relates was last 23
carried out or the related goods and services 24
to which the claim relates were last 25
supplied. 26
(3) If the payment claim relates to a final payment, 27
the claim must be served within the later of the 28
following-- 29
(a) the period, if any, worked out under the 30
relevant construction contract; 31
Page 7
Building and Construction Industry Payments Amendment Bill 2014
[s 7]
(b) 28 days after the end of the last defects 1
liability period, if any, worked out under the 2
relevant construction contract; 3
(c) 6 months after the later of-- 4
(i) completion of all construction work to 5
be carried out under the relevant 6
construction contract; or 7
(ii) complete supply of related goods and 8
services to be supplied under the 9
relevant construction contract. 10
(4) In this section-- 11
defects liability period, for a construction 12
contract, means the period, if any, worked out 13
under the contract as being the period-- 14
(a) starting on the day the construction work is 15
completed or the related goods and services 16
are supplied; and 17
(b) ending on the last day any omission or 18
defect in the construction work or related 19
goods or services may be rectified. 20
final payment means a progress payment that is 21
the final payment for construction work carried 22
out, or for related goods and services supplied, 23
under a construction contract. 24
Clause 7 Amendment of s 18 (Payment schedules) 25
Section 18(4) and (5)-- 26
omit. 27
Clause 8 Insertion of new s 18A 28
After section 18-- 29
insert-- 30
Page 8
Building and Construction Industry Payments Amendment Bill 2014
[s 9]
18A Time requirements for payment schedules 1
(1) This section applies if a respondent serves a 2
payment schedule on a claimant. 3
(2) The payment schedule, if it relates to a standard 4
payment claim, must be served on the claimant 5
within the earlier of-- 6
(a) the time required, if any, by the relevant 7
construction contract; or 8
(b) 10 business days after the payment claim is 9
served. 10
(3) The payment schedule, if it relates to a complex 11
payment claim, must be served on the claimant 12
within the earlier of-- 13
(a) the time required, if any, by the relevant 14
construction contract; or 15
(b) whichever of the following applies-- 16
(i) if the claim was served on the 17
respondent 90 days or less after the 18
reference date to which the claim 19
relates--15 business days after the 20
claim is served; 21
(ii) if the claim was served on the 22
respondent more than 90 days after the 23
reference date to which the claim 24
relates--30 business days after the 25
claim is served. 26
Clause 9 Replacement of s 19 (Consequences of not paying 27
claimant if no payment schedule) 28
Section 19-- 29
omit, insert-- 30
Page 9
Building and Construction Industry Payments Amendment Bill 2014
[s 10]
19 Consequences of not paying claimant if no 1
payment schedule 2
(1) This section applies if a respondent served with a 3
payment claim does not serve a payment 4
schedule on the claimant within the time that the 5
respondent may serve the schedule on the 6
claimant. 7
(2) The respondent becomes liable to pay the 8
claimed amount to the claimant on the due date 9
for the progress payment to which the payment 10
claim relates. 11
(3) If the respondent fails to pay the whole or any 12
part of the claimed amount on or before the due 13
date for the progress payment to which the 14
payment claim relates, the claimant-- 15
(a) may-- 16
(i) recover the unpaid portion of the 17
claimed amount from the respondent, 18
as a debt owing to the claimant, in any 19
court of competent jurisdiction; or 20
(ii) make an adjudication application under 21
section 21(1)(b) in relation to the 22
payment claim; and 23
(b) may serve notice on the respondent of the 24
claimant's intention to suspend, under 25
section 33, carrying out construction work 26
or supplying related goods and services 27
under the construction contract. 28
(4) A notice under subsection (3)(b) must state that it 29
is made under this Act. 30
Clause 10 Amendment of s 20 (Consequences of not paying 31
claimant under payment schedule) 32
(1) Section 20(1)(b)-- 33
omit, insert-- 34
Page 10
Building and Construction Industry Payments Amendment Bill 2014
[s 11]
(b) the respondent serves a payment schedule 1
on the claimant within the time that the 2
respondent may serve the schedule on the 3
claimant; and 4
(2) Section 20(4)-- 5
omit. 6
Clause 11 Insertion of new s 20A 7
Part 3, division 1-- 8
insert-- 9
20A Notice required before starting proceedings to 10
recover unpaid portion as a debt 11
(1) This section applies if a claimant-- 12
(a) may, under section 19(3)(a)(i), start 13
proceedings to recover an unpaid portion of 14
a claimed amount as a debt owing to the 15
claimant; or 16
(b) may, under section 20(2)(a)(i), start 17
proceedings to recover an unpaid portion of 18
a scheduled amount as a debt owing to the 19
claimant. 20
(2) The claimant can not start the proceedings 21
unless-- 22
(a) the claimant first gives the respondent 23
notice, within 20 business days immediately 24
following the due date for payment, of the 25
claimant's intention to start the proceedings; 26
and 27
(b) the notice states that the respondent may 28
serve a payment schedule on the claimant 29
within 5 business days after receiving the 30
notice; and 31
(c) the respondent does not serve the payment 32
schedule on the claimant within the time 33
required under paragraph (b). 34
Page 11
Building and Construction Industry Payments Amendment Bill 2014
[s 12]
(3) A notice under subsection (2)(b) must state that it 1
is made under this Act. 2
(4) If the claimant starts proceedings to recover the 3
unpaid portion of a claimed amount or scheduled 4
amount as a debt owing to the claimant-- 5
(a) judgment in favour of the claimant is not to 6
be given by a court unless the court is 7
satisfied of the existence of the 8
circumstances referred to in-- 9
(i) if the claimant starts proceedings under 10
section 19(3)(a)(i)--section 19(1) and 11
(3); 12
(ii) if the claimant starts proceedings under 13
section 20(2)(a)(i)--section 20(1); and 14
(b) the respondent is not, in those proceedings, 15
entitled-- 16
(i) to bring any counterclaim against the 17
claimant; or 18
(ii) to raise any defence in relation to 19
matters arising under the construction 20
contract. 21
Clause 12 Amendment of s 21 (Adjudication application) 22
(1) Section 21(1)(a) and (b), `division 1'-- 23
omit, insert-- 24
this part 25
(2) Section 21(3)(a) and (b)-- 26
omit, insert-- 27
(a) must be in the approved form; and 28
(b) must be made to the registrar; and 29
(3) Section 21(3)(e)-- 30
omit, insert-- 31
Page 12
Building and Construction Industry Payments Amendment Bill 2014
[s 13]
(e) must be accompanied by the fee prescribed 1
by regulation for the application; and 2
(4) Section 21(6), `authorised nominating authority to which an 3
adjudication application is made'-- 4
omit, insert-- 5
registrar 6
Clause 13 Amendment of s 23 (Appointment of adjudicator) 7
Section 23(1), `an authorised nominating authority'-- 8
omit, insert-- 9
the registrar 10
Clause 14 Replacement of s 24 (Adjudication responses) 11
Section 24-- 12
omit, insert-- 13
24 Adjudication responses 14
(1) This section applies if-- 15
(a) an adjudicator accepts a claimant's 16
adjudication application under section 23; 17
and 18
(b) the respondent served a payment schedule 19
on the claimant within the time that the 20
respondent may serve the schedule on the 21
claimant. 22
(2) The respondent may give the adjudicator a 23
response to the adjudication application (the 24
adjudication response). 25
(3) The adjudication response-- 26
(a) must be in writing; and 27
(b) must identify the adjudication application to 28
which it relates; and 29
Page 13
Building and Construction Industry Payments Amendment Bill 2014
[s 14]
(c) may contain the submissions relevant to the 1
response the respondent chooses to include. 2
(4) If the adjudication application is about a standard 3
payment claim, the adjudication response can not 4
include any reasons for withholding payment 5
unless those reasons were included in the 6
payment schedule when served on the claimant. 7
(5) If the adjudication application is about a complex 8
payment claim, the adjudication response may 9
include any reasons for withholding payment 10
whether or not those reasons were included in the 11
payment schedule when served on the claimant. 12
24A Time requirements for adjudication response 13
(1) Subsection (2) applies for an adjudication 14
response to an adjudication application about a 15
standard payment claim. 16
(2) The respondent must give the adjudicator the 17
adjudication response within the later of the 18
following to end-- 19
(a) 10 business days after receiving a copy of 20
the adjudication application; 21
(b) 7 business days after receiving notice of the 22
adjudicator's acceptance of the adjudication 23
application. 24
(3) Subsections (4) to (7) apply for an adjudication 25
response to an adjudication application about a 26
complex payment claim. 27
(4) The respondent must give the adjudicator the 28
adjudication response within the later of the 29
following to end-- 30
(a) 15 business days after receiving a copy of 31
the adjudication application; 32
Page 14
Building and Construction Industry Payments Amendment Bill 2014
[s 14]
(b) 12 business days after receiving notice of 1
the adjudicator's acceptance of the 2
adjudication application. 3
(5) However, the respondent may apply to the 4
adjudicator for an extension of time, of up to 15 5
additional business days, to give the adjudication 6
response. 7
(6) The application must-- 8
(a) be made within the later of the following to 9
end-- 10
(i) 5 business days after receiving a copy 11
of the adjudication application; 12
(ii) 2 business days after receiving notice 13
of the adjudicator's acceptance of the 14
adjudication application; and 15
(b) be in writing; and 16
(c) include the reasons for requiring the 17
extension of time. 18
(7) If the application is granted, the respondent may 19
give the adjudicator the adjudication response no 20
later than the end of the extension of time granted 21
by the adjudicator. 22
(8) A copy of an adjudication response must be 23
served on the claimant no more than 2 business 24
days after it is given to the adjudicator. 25
24B Reply to new reasons for withholding payment 26
(1) This section applies if, under section 24(5), the 27
respondent includes in an adjudication response 28
reasons for withholding payment that were not 29
included in the payment schedule when served on 30
the claimant (the new reasons). 31
(2) The claimant may give the adjudicator a reply to 32
the new reasons (the claimant's reply) within 15 33
Page 15
Building and Construction Industry Payments Amendment Bill 2014
[s 15]
business days after receiving a copy of the 1
adjudication response. 2
(3) However, the claimant may apply to the 3
adjudicator for an extension of time, of up to 15 4
additional business days, to give the claimant's 5
reply if, because of the complexity or volume of 6
the new reasons, an extension of time is required 7
to adequately prepare the claimant's reply. 8
(4) The application must-- 9
(a) be made within 5 business days after 10
receiving a copy of the adjudication 11
response; and 12
(b) be in writing; and 13
(c) include the reasons for requiring the 14
extension of time. 15
(5) If the application is granted, the claimant may 16
give the adjudicator the claimant's reply no later 17
than the end of the extension of time granted by 18
the adjudicator. 19
(6) A copy of the claimant's reply must be served on 20
the respondent no more than 2 business days after 21
it is given to the adjudicator. 22
Clause 15 Replacement of s 25 (Adjudication procedures) 23
Section 25-- 24
omit, insert-- 25
25 Adjudication procedures 26
(1) Subject to the time requirements under section 27
25A, an adjudicator must decide the following as 28
quickly as possible-- 29
(a) an adjudication application; 30
(b) applications for extensions of time under 31
this part. 32
Page 16
Building and Construction Industry Payments Amendment Bill 2014
[s 15]
(2) An adjudicator must not consider an adjudication 1
response or a claimant's reply unless it was given 2
to the adjudicator within the time that the 3
respondent or claimant may give it to the 4
adjudicator. 5
(3) For a proceeding conducted to decide an 6
adjudication application, an adjudicator-- 7
(a) must decide whether he or she has 8
jurisdiction to adjudicate the application; 9
and 10
(b) may ask for further written submissions 11
from either party and must give the other 12
party an opportunity to comment on the 13
submissions; and 14
(c) may set deadlines for further submissions 15
and comments by the parties; and 16
(d) may call a conference of the parties; and 17
(e) may carry out an inspection of any matter to 18
which the claim relates. 19
(4) If a conference is called, it must be conducted 20
informally and the parties are not entitled to any 21
legal representation. 22
(5) The adjudicator's power to decide an 23
adjudication application is not affected by the 24
failure of either or both of the parties to make a 25
submission or comment within time or to comply 26
with the adjudicator's call for a conference of the 27
parties. 28
(6) If an adjudicator decides the payment claim for 29
the adjudication application has been incorrectly 30
identified as a complex payment claim, the 31
adjudicator must continue to decide the 32
application as if it related to a complex payment 33
claim. 34
(7) If an adjudicator decides the payment claim for 35
the adjudication application has been incorrectly 36
Page 17
Building and Construction Industry Payments Amendment Bill 2014
[s 15]
identified as a standard payment claim, the 1
adjudication application is taken to be 2
withdrawn. 3
25A Time requirements for adjudication 4
proceedings 5
(1) An adjudicator must not decide an adjudication 6
application until after the end of the following 7
periods that apply for the application-- 8
(a) the period within which the respondent may 9
give an adjudication response to the 10
adjudicator; 11
(b) the period within which the claimant may 12
give a claimant's reply to the adjudication 13
response. 14
Note-- 15
Only a complex payment claim may involve a claimant's 16
reply--see section 24B. 17
(2) An adjudicator must decide an adjudication 18
application relating to a standard payment claim 19
within 10 business days after the earlier of-- 20
(a) if the adjudicator was given an adjudication 21
response--the date on which the adjudicator 22
receives the response; or 23
(b) if the adjudicator was not given an 24
adjudication response--the date on which 25
the adjudicator should have received the 26
response. 27
(3) An adjudicator must decide an adjudication 28
application relating to a complex payment claim 29
within 15 business days after-- 30
(a) if the adjudicator was given an adjudication 31
response and was not also given a claimant's 32
reply--the date on which the adjudicator 33
receives the response; or 34
Page 18
Building and Construction Industry Payments Amendment Bill 2014
[s 16]
(b) if the adjudicator was given an adjudication 1
response and was also given a claimant's 2
reply--the date on which the adjudicator 3
receives the reply; or 4
(c) if the adjudicator was not given an 5
adjudication response--the date on which 6
the adjudicator should have received the 7
response. 8
(4) Despite subsections (2) and (3), if the claimant 9
and respondent agree in writing to the adjudicator 10
having further time (the agreed time) to decide 11
an adjudication application, the adjudicator must 12
decide the application within the agreed time. 13
(5) The claimant and respondent may agree to the 14
further time under subsection (4) before or after 15
the expiry of time under subsection (2) or (3). 16
25B Extension of time requirements by adjudicator 17
(1) This section applies if-- 18
(a) an adjudication application relates to a 19
complex payment claim; and 20
(b) in the opinion of the adjudicator, the 21
claimant and respondent attempt, but fail, to 22
reach agreement under section 25A(4). 23
(2) The adjudicator may, despite section 25A(3), 24
decide the application within 5 business days 25
after the time the adjudicator would otherwise 26
have to decide the application under section 27
25A(3). 28
Clause 16 Amendment of s 30 (Consequences of not paying 29
claimant adjudicated amount) 30
(1) Section 30(1)(a), `authorised nominating authority to whom 31
the adjudication application was made'-- 32
omit, insert-- 33
Page 19
Building and Construction Industry Payments Amendment Bill 2014
[s 17]
registrar 1
(2) Section 30(4), `request the authorised nominating 2
authority'-- 3
omit, insert-- 4
ask the registrar 5
(3) Section 30(6), `authorised nominating authority'-- 6
omit, insert-- 7
registrar 8
Clause 17 Amendment of s 32 (Claimant may make new application 9
in certain circumstances) 10
Section 32(1)(b), `section 25(3)'-- 11
omit, insert-- 12
section 25A or 25B 13
Clause 18 Amendment of s 33 (Claimant may suspend work) 14
Section 33(2), `section 19(1)'-- 15
omit, insert-- 16
section 19(2) 17
Clause 19 Replacement of s 34 (Authorised nominating authority's 18
fees) 19
Section 34-- 20
omit, insert-- 21
34 Incorrectly identified standard and complex 22
payment claims 23
(1) Subsection (2) applies if, under section 17(2)(d), 24
a claimant incorrectly identifies a complex 25
payment claim as a standard payment claim. 26
(2) The payment claim is taken to be a standard 27
payment claim for the purpose of part 3 unless 28
Page 20
Building and Construction Industry Payments Amendment Bill 2014
[s 20]
and until an adjudicator decides the payment 1
claim has been incorrectly identified under 2
division 2. 3
Note-- 4
Section 25(7) states the consequences of an adjudicator 5
deciding that a complex payment claim has been 6
incorrectly identified as a standard payment claim. 7
(3) Subsection (4) applies if, under section 17(2)(d), 8
a claimant incorrectly identifies a standard 9
payment claim as a complex payment claim. 10
(4) The payment claim is taken to be a complex 11
payment claim for the purpose of part 3. 12
Clause 20 Amendment of s 35 (Adjudicator's fees) 13
(1) Section 35(4), from `(other' to `25(3)'-- 14
omit. 15
(2) Section 35(5)-- 16
omit, insert-- 17
(5) However, subsection (4) does not apply if-- 18
(a) the adjudication application is withdrawn; 19
or 20
(b) the adjudicator decided he or she did not 21
have jurisdiction to adjudicate the 22
application. 23
(6) Also, if a court finds that the adjudicator's 24
decision is void and unenforceable, the 25
adjudicator is still entitled to be paid any fees or 26
expenses for the adjudication of the application if 27
the adjudicator acted in good faith in adjudicating 28
the application. 29
(7) For subsection (4), an adjudicator does not fail to 30
make a decision merely because the adjudicator 31
refuses to communicate the adjudicator's 32
decision on an adjudication application until the 33
adjudicator's fees and expenses are paid. 34
Page 21
Building and Construction Industry Payments Amendment Bill 2014
[s 21]
(8) In this section-- 1
adjudicating, an adjudication application, 2
includes accepting, considering and deciding the 3
application. 4
Clause 21 Insertion of new ss 35A and 35B 5
Part 3, division 4-- 6
insert-- 7
35A Matters to be considered in deciding fees 8
(1) This section applies if an adjudicator is making a 9
decision about the proportion of the adjudicator's 10
fees and expenses to be paid by the claimant and 11
respondent under section 35(3). 12
(2) In making the decision, the adjudicator may 13
consider the following matters-- 14
(a) the relative success of the claimant or 15
respondent in the adjudication; 16
(b) whether the claimant or respondent 17
commenced or participated in the 18
adjudication for an improper purpose; 19
(c) whether the claimant or respondent 20
commenced or participated in the 21
adjudication without reasonable prospects 22
of success; 23
(d) whether the claimant or respondent has 24
acted unreasonably leading up to the 25
adjudication; 26
(e) whether the claimant or respondent has 27
acted unreasonably in the conduct of the 28
adjudication; 29
(f) the reasons given by the respondent for not 30
making the progress payment the subject of 31
the adjudication application; 32
Page 22
Building and Construction Industry Payments Amendment Bill 2014
[s 22]
(g) whether the respondent included additional 1
reasons for withholding payment in the 2
adjudication response that were not included 3
in the payment schedule served on the 4
claimant; 5
(h) whether an adjudication application is 6
withdrawn; 7
(i) the services provided by the adjudicator in 8
adjudicating the adjudication application, 9
including the amount of time taken to 10
consider discrete aspects of the amount 11
claimed; 12
(j) another matter the adjudicator considers 13
relevant in making the decision. 14
35B Withdrawing from adjudication 15
An adjudication application is taken to have been 16
withdrawn if-- 17
(a) a claimant has served a notice of 18
discontinuation on the adjudicator and 19
respondent; or 20
(b) a respondent has paid the claimed amount 21
the subject of the adjudication application to 22
the claimant. 23
Note-- 24
Despite the withdrawal of an adjudication application an 25
adjudicator is still entitled to be paid fees for 26
considering the application--see section 35. 27
Clause 22 Amendment of s 38 (Registrar's functions and powers) 28
(1) Section 38(2), before paragraph (a)-- 29
insert-- 30
(aa) to refer adjudication applications to adjudicators; 31
(2) Section 38(2)(a), `authorised nominating authorities and'-- 32
Page 23
Building and Construction Industry Payments Amendment Bill 2014
[s 23]
omit. 1
(3) Section 38(2)(a), `paragraph (b)'-- 2
omit, insert-- 3
paragraph (c) 4
(4) Section 38(2)(aa) to (g)-- 5
renumber as section 38(2)(a) to (h). 6
Clause 23 Amendment of s 39 (Delegation by registrar) 7
Section 39(2)-- 8
omit. 9
Clause 24 Omission of s 40 (Acting registrar) 10
Section 40-- 11
omit. 12
Clause 25 Amendment of s 41 (Annual report on operation of Act 13
and registry) 14
Section 41(2)-- 15
omit, insert-- 16
(2) The report may be included in the commission's 17
annual report. 18
(3) Unless the report is included in the commission's 19
annual report, the Minister must table a copy of 20
the report in the Legislative Assembly within 14 21
sitting days after receiving the report. 22
(4) In this section-- 23
annual report means an annual report prepared 24
under the Financial Accountability Act 2009, 25
section 63. 26
Page 24
Building and Construction Industry Payments Amendment Bill 2014
[s 26]
Clause 26 Omission of pt 4, div 2 (Registration of authorised 1
nominating authorities) 2
Part 4, division 2-- 3
omit. 4
Clause 27 Amendment of s 68 (Form of certificate of registration) 5
Section 68(a), `registrant's'-- 6
omit, insert-- 7
adjudicator's 8
Clause 28 Amendment of pt 4, div 4, hdg (Renewals of registrations 9
of authorised nominating authorities and adjudicators) 10
Part 4, division 4, heading `authorised nominating authorities 11
and'-- 12
omit. 13
Clause 29 Amendment of s 69 (Definitions for div 4) 14
(1) Section 69, definition registrant-- 15
omit, insert-- 16
registrant means an adjudicator applying for a 17
renewal of registration as an adjudicator. 18
(2) Section 69, definition registration-- 19
omit, insert-- 20
registration means renewal of registration as an 21
adjudicator. 22
Clause 30 Amendment of pt 4, div 5, hdg (Amendment of 23
registrations of authorised nominating authorities and 24
adjudicators) 25
Part 4, division 5, heading `authorised nominating authorities 26
and'-- 27
Page 25
Building and Construction Industry Payments Amendment Bill 2014
[s 31]
omit. 1
Clause 31 Amendment of s 73 (Definitions for div 5) 2
(1) Section 73, definition registrant-- 3
omit, insert-- 4
registrant means an adjudicator applying for 5
amendment of a registration as an adjudicator. 6
(2) Section 73, definition registration-- 7
omit, insert-- 8
registration means an amendment of a 9
registration as an adjudicator. 10
Clause 32 Amendment of pt 4, div 6, hdg (Suspension or 11
cancellation of registrations of authorised nominating 12
authorities and adjudicators) 13
Part 4, division 6, heading `authorised nominating authorities 14
and'-- 15
omit. 16
Clause 33 Amendment of s 76 (Definitions for div 6) 17
(1) Section 76, definition registrant-- 18
omit, insert-- 19
registrant means a person registered as an 20
adjudicator. 21
(2) Section 76, definition registration-- 22
omit, insert-- 23
registration means registration as an adjudicator. 24
Page 26
Building and Construction Industry Payments Amendment Bill 2014
[s 34]
Clause 34 Amendment of s 84 (Effect of suspension or cancellation 1
of registration of authorised nominating authority or 2
adjudicator) 3
(1) Section 84, heading, `authorised nominating authority or'-- 4
omit. 5
(2) Section 84(1)(a), `an authorised nominating authority or'-- 6
omit. 7
(3) Section 84(1)(b), `made to the authorised nominating 8
authority'-- 9
omit, insert-- 10
made to the registrar 11
(4) Section 84(5)-- 12
omit, insert-- 13
(5) The adjudicator is not entitled to any fees or 14
expenses in relation to the adjudication 15
application taken to have been withdrawn under 16
this section. 17
Clause 35 Amendment of pt 4, div 7, hdg (Other provisions about 18
registrations of authorised nominating authorities and 19
adjudicators) 20
Part 4, division 7, heading `authorised nominating authorities 21
and'-- 22
omit. 23
Clause 36 Amendment of s 86 (Definitions for div 7) 24
(1) Section 86, definition registrant-- 25
omit, insert-- 26
registrant means a person registered as an 27
adjudicator. 28
(2) Section 86, definition registration-- 29
Page 27
Building and Construction Industry Payments Amendment Bill 2014
[s 37]
omit, insert-- 1
registration means registration as an adjudicator. 2
Clause 37 Amendment of s 100 (Effect of pt 3 on civil proceedings) 3
Section 100-- 4
insert-- 5
(4) If, in any proceedings before a court in relation to 6
any matter arising under a construction contract, 7
the court finds that only a part of an adjudicator's 8
decision under part 3 is affected by jurisdictional 9
error, the court must-- 10
(a) identify the part affected by the error; and 11
(b) allow the part of the decision not affected by 12
the error to remain binding on the parties to 13
the proceeding. 14
Clause 38 Omission of s 101 (Adjudicator must give copy of 15
decision to authorised nominating authority) 16
Section 101-- 17
omit. 18
Clause 39 Replacement of s 102 (Authorised nominating authority 19
must give information to registrar) 20
Section 102-- 21
omit, insert-- 22
102 Adjudicator must give information to registrar 23
An adjudicator must, at the times specified by the 24
registrar, give the registrar-- 25
(a) a copy of the adjudicator's decisions; and 26
(b) the other information required in the 27
approved form. 28
Page 28
Building and Construction Industry Payments Amendment Bill 2014
[s 40]
Clause 40 Amendment of s 105 (Evidentiary aids) 1
(1) Section 105(2)(a)-- 2
omit. 3
(2) Section 105(2)(b) and (c)-- 4
renumber as section 105(2)(a) and (b). 5
Clause 41 Amendment of s 107 (Protection from liability for 6
adjudicators and authorised nominating authorities) 7
(1) Section 107, heading, `and authorised nominating 8
authorities'-- 9
omit. 10
(2) Section 107(2)-- 11
omit. 12
Clause 42 Amendment of pt 7, hdg (Transitional) 13
Part 7, heading, `Transitional'-- 14
omit, insert-- 15
Transitional provisions 16
Clause 43 Insertion of new pt 7, div 1, hdg 17
After part 7, heading-- 18
insert-- 19
Division 1 Transitional provision for 20
Act No. 6 of 2004 21
Clause 44 Insertion of new pt 7, div 2 22
After section 112-- 23
insert-- 24
Page 29
Building and Construction Industry Payments Amendment Bill 2014
[s 44]
Division 2 Transitional provisions for 1
Building and Construction 2
Industry Payments 3
Amendment Act 2014 4
113 Registration of authorised nominating 5
authorities 6
(1) The registration of an authorised nominating 7
authority ends. 8
(2) The registrar must refund the amount of the 9
authorised nominating authority's registration fee 10
that, on the ending of an authorised nominating 11
authority's registration, is proportional to the 12
unexpired period of the registration in whole 13
months. 14
(3) An application for registration or application for 15
renewal of registration made, but not decided, 16
before the commencement is taken to be 17
withdrawn. 18
(4) The registrar must refund to the authorised 19
nominating authority the amount of the 20
application fee for registration or for renewing 21
his or her registration. 22
(5) In this section-- 23
application for registration means an application 24
for registration as an authorised nominating 25
authority under repealed section 42. 26
application for renewal of registration means an 27
application for renewal of a registration under 28
section 70. 29
commencement means the commencement of 30
this section. 31
Page 30
Building and Construction Industry Payments Amendment Bill 2014
[s 45]
114 Applications to authorised nominating 1
authorities for adjudication 2
(1) This section applies to an adjudication 3
application made under section 21, but not yet 4
decided, before the commencement. 5
(2) The adjudication application must be dealt with 6
and decided under the unamended Act as if this 7
Act had not been amended by the Building and 8
Construction Industry Payments Amendment Act 9
2014. 10
(3) In this section-- 11
commencement means the commencement of 12
this section. 13
unamended Act means this Act as in force 14
immediately before the commencement of this 15
section. 16
Clause 45 Amendment of sch 2 (Dictionary) 17
(1) Schedule 2, adjudication certificate, adjudication fees, 18
authorised nominating authority and business day-- 19
omit. 20
(2) Schedule 2-- 21
insert-- 22
adjudication certificate means a certificate 23
provided by the registrar under this Act. 24
adjudication fees means fees or expenses 25
charged by an adjudicator under this Act. 26
business day does not include-- 27
(a) a Saturday or Sunday; or 28
(b) a public holiday, special holiday or bank 29
holiday in the place in which any relevant 30
act is to be or may be done; or 31
Page 31
Building and Construction Industry Payments Amendment Bill 2014
[s 45]
(c) any day occurring within any of the 1
following periods-- 2
(i) 22 to 24 December; 3
(ii) 27 to 31 December; 4
(iii) 2 to 10 January. 5
complex payment claim means a payment claim 6
for any of the following-- 7
(a) any payment for an amount more than 8
$750000 or, if a greater amount is 9
prescribed by regulation, the amount 10
prescribed; 11
(b) a latent condition under the relevant 12
construction contract; 13
(c) a time-related cost under the relevant 14
construction contract. 15
standard payment claim means a payment claim 16
that is not a complex payment claim. 17
(3) Schedule 2, definition adjudication response, `24(1)'-- 18
omit, insert-- 19
24(2) 20
(4) Schedule 2, definition relevant offence, paragraph (f), 21
`authorised nominating authority or an'-- 22
omit. 23
© State of Queensland 2014
Authorised by the Parliamentary Counsel
Page 32
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