I will be giving a talk in Adelaide for the Law Society of South Australia on Wednesday – 4 November 2015 – on the topic of Preparing and Answering Payment Claims under the Building and Construction Industry Security of Payment Act 2009 (SA).
This is not intended to be cutting-edge stuff, but rather a general introduction for general practitioners who may not be familiar with this tricky legislation. It has recently become all the more difficult for newcomers to get on board, given that both Queensland and New South Wales have recently made significant changes to their legislation (in the former case, for the better, and in the latter case, for the worse) and so the only States and Territories which now operate the original form of the legislation are South Australia, Tasmania and the ACT. In other words, it is only the smaller jurisdictions which have been “left up by the tide” in its original East Coast form. Well, not quite original, because New South Wales originally introduced the legislation with the bizarre feature that an adjudication loser could provide security, instead of writing a cheque for the amount of the determination. That feature rendered the legislation substantially pointless, and only lasted a couple of years.
A theme that came up over and over again at the Society of Construction Law Australia conference in Melbourne last weekend (which was excellent by the way) was that it is utterly absurd that this legislation is fragmented on a State and Territory basis: it would make far more sense for there to be a national system. But the rather bizarre way in which the Australian Constitution works means that there is relatively little appetite by anybody in government to do what needs to be done. Stakeholders in the construction industry regularly get their fingers badly burned by this legislation, but there are few votes in it one way or the other, and parochialism strides the stage with considerable confidence.