Queensland’s Building and Construction Industry Payments Act 2004 has now been amended by the Building and Construction Industry Payments Amendment Bill 2014. There are a fair few of them; as applied to the existing Act, the result is here: BaCIPAQ2014. New provisions are shown in red, or, in the case of those relating to the complex claim category, in brown. I have left the formatting more or less as it comes off the AUSTLII copy, but tidied it up somewhat around the changes.
By far the most significant change is that adjudicators are no longer appointed by ANAs, but instead by the government Registrar. This should remove what many have regarded as the institutional pro-claimant bias inherent in the old system. The change is consistent both with the recommendation of the Wallace Report, and also that of SoCLA’s Report. Query how long it will take for this change to take effect: in the short term, the registered adjudicators are those who already registered adjudicators, who were trained by the old ANAs. Old habits may die hard.
Of the other changes, the following are particularly notable: in approximate order of importance:
- Claimants must now give respondents express notice of their right to serve a “second chance” payment schedule before applying for judgment for failure to serve a first chance payment schedule on time. The should end the absurd injustice in the Est Coast Model that a respondent may be deprived of all of his rights to defend himself without any notice to him of the consequences of inaction. Hitherto, the second chance provision has been largely unused, because respondents have simply been unaware of it;
- The changes include a new definition of a “complex payment claim” being a claim for more than $750k, or one for a latent condition (not sure what that is about) or time-related cost. The most important if these changes is that, in the case of a complex payment claim, the respondent can include reasons for non-payment in his adjudication response even if not included in his payment schedule. If he does so, the claimant gets a right of reply;
- For complex payment claims, the time limits also go up: the respondent gets 15 business days to provide a payment schedule (up from 10), or 30 business days if the payment claim is somewhat stale, being more than 90 days after the date in the contract on which a claim for progress payment may be made;
- In all cases which go to adjudication, the respondent will get extra time for his adjudication response: 10 business days (up from 5) in the case of standard payment claims, and 15 business days in the case of complex payment claims (again, up from 5). There is also provision for extensions of time in appropriate cases;
- The long stop date is adjusted. For interim payment claims, the long stop date is now 6 months from when the work was last done (down from 12 months). For final claims, the period may be extended to 28 days from the end of the last defects liability period;
- On judicial review, the courts will now be able to sever infected parts of a bad determination, so that the unaffected part may stand.