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This is a Bill, not an Act. For current law, see the Acts databases.
BUILDING AND CONSTRUCTION INDUSTRY (SECURITY OF PAYMENT) BILL 2009
2009
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Minister for Industrial Relations)
Building
and Construction Industry (Security of Payment) Bill
2009
Contents
Page
2009
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Minister for Industrial Relations)
Building and
Construction Industry (Security of Payment) Bill 2009
A Bill for
An Act to
facilitate recovery of payments under construction contracts in the building and
construction industry, and for other purposes.
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
This Act is the Building and Construction Industry (Security of Payment)
Act 2009.
This Act commences on 1 July 2010.
Note The naming and commencement provisions automatically commence
on the notification day (see Legislation Act, s 75 (1)).
The dictionary at the end of this Act is part of this Act.
Note 1 The dictionary at the end of this Act defines certain terms
used in this Act, and includes references (signpost definitions)
to other terms defined elsewhere in this Act.
For example, the signpost definition ‘adjudicated
amount—see section 24’ means that the term
‘adjudicated amount’ is defined in that section.
Note 2 A definition in the dictionary (including a signpost
definition) applies to the entire Act unless the definition, or another
provision of the Act, provides otherwise or the contrary intention otherwise
appears (see Legislation Act, s 155 and s 156 (1)).
A note included in this Act is explanatory and is not part of this
Act.
Note See the Legislation Act, s 127 (1), (4) and (5) for the
legal status of notes.
5 Offences
against Act—application of Criminal Code etc
Other legislation applies in relation to offences against this
Act.
Note 1 Criminal Code
The Criminal Code, ch 2 applies to all offences against this Act (see Code,
pt 2.1).
The chapter sets out the general principles of criminal responsibility
(including burdens of proof and general defences), and defines terms used for
offences to which the Code applies (eg conduct,
intention, recklessness and strict
liability).
Note 2 Penalty units
The Legislation Act, s 133 deals with the meaning of offence penalties that
are expressed in penalty units.
(1) The object of this Act is to ensure that a person is entitled to
receive, and is able to recover, progress payments if the
person—
(a) undertakes to carry out construction work under certain construction
contracts; or
(b) undertakes to supply related goods and services under certain
construction contracts.
(2) In particular, this Act—
(a) grants an entitlement to a progress payment for construction work,
whether or not a construction contract provides for progress payments;
and
(b) establishes a recovery procedure for construction work progress
payments.
Part
2 Important
concepts
Division
2.1 Meaning of
terms
7 Meaning
of construction work
(1) In this Act:
construction work—
(a) includes the construction, alteration, repair, restoration,
maintenance, extension, demolition or dismantling of buildings or structures,
whether permanent or not, forming, or to form, part of land; and
(b) includes the construction, alteration, repair, restoration,
maintenance, extension, demolition or dismantling of any works forming, or to
form, part of land, including walls, roadworks, power-lines, telecommunication
apparatus, aircraft runways, docks and harbours, railways, inland waterways,
pipelines, reservoirs, water mains, wells, sewers, industrial plant and
installations for purposes of land drainage or coast
protection; and
(c) includes the installation in any building, structure or works of
fittings forming, or to form, part of land, including heating, lighting,
air-conditioning, ventilation, power supply, drainage, sanitation, water supply,
fire protection, security and communications systems; and
(d) includes the external or internal cleaning of buildings, structures
and works, so far as it is carried out in the course of their construction,
alteration, repair, restoration, maintenance or extension; and
(e) includes any operation which forms an integral part of, or is
preparatory to or is for rendering complete, work mentioned in paragraph (a),
(b) or (c); and
Examples
1 site clearance, earth-moving, excavation, tunnelling and boring
2 laying foundations
3 erecting, maintaining or dismantling scaffolding
4 prefabricating components to form part of any building, structure or
works, whether carried out on-site or off-site
5 site restoration, landscaping and providing roadways and other access
works
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(f) includes painting or decorating the internal or external surfaces of
any building, structure or works; and
(g) includes building work within the meaning of the
Building Act 2004; but
(h) does not include—
(i) drilling for, or extraction of, oil or natural gas; or
(ii) extracting (whether by underground or surface working) minerals,
including tunnelling or boring, or constructing underground works, for that
purpose.
(2) A regulation may provide that work is, or is not, construction work
for this Act.
8 Meaning
of related goods and services
(1) In this Act:
related goods and services for construction work—
(a) includes goods of the following kind:
(i) materials and components to form part of any building, structure or
work arising from construction work;
(ii) plant or materials (whether supplied by sale, hire or otherwise) for
use in connection with carrying out construction work; and
(b) includes services of the following kind:
(i) the provision of labour to carry out construction work;
(ii) architectural, design, surveying or quantity surveying services in
relation to construction work;
(iii) building, engineering, interior or exterior decoration or landscape
advisory services in relation to construction work.
(2) A regulation may provide that goods and services are, or are not,
related goods and services for this Act.
(3) In this Act, a reference to related goods and services includes a
reference to related goods or services.
Division
2.2 Application of
Act
(1) This Act applies to a construction contract—
(a) whether written or oral, or partly written and partly oral;
and
(b) whether expressed to be governed by a law of the Territory or a law of
another jurisdiction.
(2) This Act does not apply to any of the following:
(a) a construction contract that forms part of a loan agreement, a
contract of guarantee or a contract of insurance under which a recognised
financial institution undertakes—
(i) to lend money or to repay money lent; or
(ii) to guarantee payment of money owing or repayment of money lent;
or
(iii) to provide an indemnity in relation to construction work carried
out, or related goods and services supplied, under the construction contract;
(b) a construction contract for carrying out residential building work if
a resident owner is a party to the contract, to the extent that the contract
relates to a building or part of a building where the resident owner lives or
intends to live;
(c) a construction contract under which it is agreed that the
consideration payable for construction work carried out under the contract, or
for related goods and services supplied under the contract, is to be worked out
otherwise than by reference to the value of the work carried out or the value of
the goods and services supplied.
(3) This Act does not apply to a construction contract to the extent to
which it contains—
(a) provisions under which a party undertakes to carry out construction
work, or supply related goods and services, as an employee of the party for whom
the work is to be carried out or the related goods and services are to be
supplied; or
(b) provisions under which a party undertakes to carry out construction
work, or to supply related goods and services, as a condition of a loan
agreement with a recognised financial institution; or
(c) provisions under which a party undertakes—
(i) to lend money or to repay money lent; or
(ii) to guarantee payment of money owing or repayment of money lent;
or
(iii) to provide an indemnity with respect to construction work carried
out, or related goods and services supplied, under the construction
contract.
(4) This Act does not apply to a construction contract to the extent to
which it deals with—
(a) construction work carried out outside the ACT; or
(b) related goods and services supplied in respect of construction work
carried out outside the ACT.
(5) This Act does not apply to a construction contract prescribed by
regulation.
(6) To avoid doubt, this Act does not apply to a construction contract
entered into before the commencement of this part.
(7) In this section:
residential building work—see the Building Act 2004,
dictionary.
resident owner, in relation to a construction contract for
carrying out residential building work, does not include a person who is or
should be licensed as an owner-builder under the Construction Occupations
(Licensing) Act 2004.
Part
3 Right to progress
payments
10 Right
to progress payments
(1) On and from each reference date under a construction contract, a
person is entitled to a payment (a progress payment) if the person
has undertaken, under the contract, to—
(a) carry out construction work; or
(b) supply related goods and services.
(2) A progress payment may include—
(a) the final payment for construction work carried out, or for related
goods and services supplied, under a construction contract; or
(b) a single or one-off payment for carrying out construction work, or for
supplying related goods and services, under a construction contract;
or
(c) a milestone payment.
(3) In this section—
milestone payment means a payment that is based on an event
or date.
reference date, for a construction contract,
means—
(a) a date stated in, or worked out under, the contract as the date when a
claim for a progress payment is to be made in relation to work carried out or
undertaken to be carried out, or related goods and services supplied or
undertaken to be supplied, under the contract; or
(b) if the contract does not provide a date mentioned in
paragraph (a)—
(i) the last day of the named month in which the construction work was
first carried out, or the related goods and services were first supplied, under
the contract; and
(ii) the last day of each subsequent named month.
11 Amount
of progress payment
The amount of a progress payment to which a person is entitled in relation
to a construction contract is—
(a) the amount worked out under the contract; or
(b) if the contract does not provide for an amount, the amount worked out
on the basis of the value of—
(i) construction work carried out or undertaken to be carried out by the
person under the contract; or
(ii) related goods and services supplied or undertaken to be supplied by
the person under the contract.
12 Valuation
of construction work and related goods and services
(1) Construction work carried out or undertaken to be carried out under a
construction contract must be—
(a) valued under the contract; or
(b) if the contract does not provide for valuation—valued having
regard to each of the following:
(i) the contract price for the work;
(ii) any other rates or prices set out in the contract;
(iii) any variation agreed to by the parties to the contract by which the
contract price, or any other rate or price set out in the contract, is to be
adjusted by a stated amount;
(iv) if any of the work is defective, the estimated cost of rectifying the
defect.
(2) Related goods and services supplied or undertaken to be supplied under
a construction contract must be—
(a) valued under the contract; or
(b) if the contract does not provide for valuation—valued having
regard to each of the following:
(i) the contract price for the goods and services;
(ii) any other rates or prices set out in the contract;
(iii) any variation agreed to by the parties to the contract by which the
contract price, or any other rate or price set out in the contract, is to be
adjusted by a stated amount;
(iv) if any of the goods are defective, the estimated cost of rectifying
the defect.
(3) For subsection (2) (b), for materials and components that are to form
part of any building, structure or work arising from construction work, the only
materials and components to be included in the valuation are those that have
become, or, on payment, will become the property of the party for whom the
construction work is being carried out.
(1) A progress payment under a construction contract is
payable—
(a) on the day when the payment becomes payable under the contract;
or
(b) if the contract does not set a day—10 business days after a
payment claim is made under part 4 in relation to the payment.
(2) Interest is payable on the unpaid amount of a progress payment that is
payable under subsection (1) at the greater of the following:
(a) the rate of interest applying from time to time under the Court
Procedures Rules 2006, schedule 2, part 2.2 (Interest after judgment);
(b) the rate stated under the construction contract.
(3) If a progress payment is payable under subsection (1), the claimant is
entitled to exercise a lien in relation to the unpaid amount over any unfixed
plant or materials supplied by the claimant for use in connection with carrying
out construction work for the respondent.
Note 1 Claimant—see s 15.
Note 2 Respondent—see s 15.
(4) Any lien or charge over the unfixed plant or materials existing before
the date on which the progress payment becomes payable takes priority over a
lien under subsection (3).
(5) Subsection (3) does not create any right against a third party who is
the owner of the unfixed plant or materials.
14 Effect
of pay when paid provision
(1) A pay when paid provision of a construction contract has no effect in
relation to any payment for—
(a) construction work carried out or undertaken to be carried out under
the contract; or
(b) related goods and services supplied or undertaken to be supplied under
the contract.
(2) In this section:
money owing, to a person under a construction contract, means
money owing for—
(a) construction work carried out or undertaken to be carried out by the
person under the contract; or
(b) related goods and services supplied or undertaken to be supplied by
the person under the contract.
pay when paid provision, of a construction contract, means a
provision of the contract—
(a) that makes the liability of 1 party (the first party) to
pay money owing to another party (the second party) contingent on
payment to the first party by a further party (the third party) of
the whole or any part of that money; or
(b) that makes the due date for payment of money owing by the first party
to the second party dependent on the date on which payment of the whole or any
part of that money is made to the first party by the third party; or
(c) that otherwise makes the liability to pay money owing, or the due date
for payment of money owing, contingent or dependent on the operation of another
contract.
Part
4 Procedure for recovering progress
payment
Division
4.1 Payment claim and payment
schedule
(1) A person who is or who claims to be entitled to a progress payment
under section 10 (1) (the claimant) may give a payment claim to
the person who, under the construction contract concerned, is or may be liable
to make the payment (the respondent).
Note 1 If a form is approved under s 47 for a payment claim, the
form must be used.
Note 2 For how documents may be served, see the Legislation Act,
pt 19.5.
(2) A payment claim must—
(a) identify the construction work or related goods and services to which
the progress payment relates; and
(b) state the amount of the progress payment that the claimant claims is
payable (the claimed amount); and
(c) state that it is made under this Act.
(3) The claimed amount may include any amount—
(a) that the respondent is liable to pay the claimant under
section 29 (3); or
(b) that is held under the construction contract by the respondent and
that the claimant claims is due for release.
(4) A payment claim may be given only before the later of—
(a) the end of the period worked out under the construction contract;
and
(b) the end of the period of 12 months after the construction work to
which the claim relates was last carried out or the related goods and services
to which the claim relates were last supplied.
(5) A claimant must not give more than 1 payment claim for each reference
date under the construction contract.
(6) However, subsection (5) does not prevent the claimant from including
in a payment claim an amount that has been the subject of a previous
claim.
(1) A respondent who is given a payment claim under section 15 may reply
to the claim by giving a payment schedule to the claimant.
Note 1 If a form is approved under s 47 for a payment schedule, the
form must be used.
Note 2 For how documents may be served, see the Legislation Act,
pt 19.5.
(2) A payment schedule must—
(a) identify the payment claim to which it relates; and
(b) state the amount of the payment, if any, that the respondent proposes
to make (the scheduled amount).
(3) If the scheduled amount is less than the claimed amount, the schedule
must indicate—
(a) why the scheduled amount is less; and
(b) if the scheduled amount is less because the respondent is withholding
payment for any reason—the respondent's reasons for withholding
payment.
(4) The respondent becomes liable to pay the claimed amount to the
claimant on the due date for the progress payment to which the payment claim
relates if—
(a) the claimant gives a payment claim to the respondent; and
(b) the respondent does not provide a payment schedule to the claimant
within the earlier of—
(i) the time required by the relevant construction contract; or
(ii) 10 business days after the payment claim is given to the
respondent.
17 Consequences
of not paying claimant—no payment schedule
(1) This section applies if a respondent—
(a) becomes liable to pay a claimed amount to a claimant because the
respondent failed to provide a payment schedule to the claimant within the time
allowed under section 16 (4); and
(b) fails to pay the whole or any part of the claimed amount on or before
the due date for the progress payment to which the payment claim
relates.
(2) The claimant—
(a) may—
(i) recover the unpaid portion of the claimed amount from the respondent,
as a debt due to the claimant, in any court of competent jurisdiction;
or
(ii) make an adjudication application under section 19 (1) (b) in relation
to the payment claim; and
(b) may give notice to the respondent of the claimant's intention, under
section 29, to suspend;
(i) carrying out construction work under the construction contract; or
(ii) supplying related goods and services under the construction
contract.
Note If a form is approved under s 47 for a notice, the form must be
used.
(3) If the claimant starts a proceeding under subsection (2) (a)
(i)—
(a) the court must not enter judgment in favour of the claimant unless the
court is satisfied the circumstances mentioned in subsection (1) exist;
and
(b) the respondent is not entitled—
(i) to bring a cross-claim against the claimant; or
(ii) to raise a defence in relation to matters arising under the
construction contract.
18 Consequences
of not paying claimant in accordance with payment schedule
(1) This section applies if—
(a) a claimant gives a payment claim to a respondent; and
(b) the respondent provides a payment schedule to the claimant within the
earlier of—
(i) the time required by the relevant construction contract; or
(ii) 10 business days after the payment claim is given to the respondent;
and
(c) the payment schedule states a scheduled amount that the respondent
proposes to pay to the claimant; and
(d) the respondent fails to pay the whole or any part of the scheduled
amount to the claimant on or before the due date for the progress payment to
which the payment claim relates.
(2) The claimant—
(a) may—
(i) recover the unpaid portion of the claimed amount from the respondent,
as a debt due to the claimant, in any court of competent jurisdiction;
or
(ii) make an adjudication application under section 19 (1) (b) in relation
to the payment claim; and
(b) may serve notice on the respondent of the claimant's intention, under
section 29, to suspend—
(i) carrying out construction work under the construction contract; or
(ii) supplying related goods and services under the construction
contract.
(3) The notice must state that it is made under this Act.
Note If a form is approved under s 47 for a notice, the form must be
used.
(4) If the claimant starts a proceeding under subsection (2) (a)
(i)—
(a) the court must not enter judgment in favour of the claimant unless the
court is satisfied the circumstances mentioned in subsection (1) exist;
and
(b) the respondent is not entitled—
(i) to bring any cross-claim against the claimant; or
(ii) to raise any defence in relation to matters arising under the
construction contract.
Division
4.2 Adjudication of
disputes
19 Adjudication
applications
(1) A claimant may apply to an authorised nominating authority, chosen by
the claimant, for adjudication of a payment claim
(an adjudication application) if—
(a) the respondent provides a payment schedule under this part,
but—
(i) the scheduled amount indicated in the payment schedule is less than
the claimed amount indicated in the payment claim; or
(ii) the respondent fails to pay the whole or any part of the scheduled
amount to the claimant by the due date for payment of the amount; or
(b) the respondent fails—
(i) to provide a payment schedule under this part within the time allowed
by section 16 (4); and
(ii) to pay the whole, or any part of, the claimed amount to the claimant
by the due date.
Note If a form is approved under s 47 for an adjudication
application, the form must be used.
(2) An adjudication application to which subsection (1) (b) applies must
not be made unless—
(a) the claimant has within 20 business days immediately following the due
date for payment, notified the respondent of the claimant's intention to apply
for adjudication of the payment claim; and
(b) the respondent had an opportunity to provide a payment schedule to the
claimant within 5 business days after receiving the claimant’s
notice.
(3) An adjudication application—
(a) must be in writing; and
(b) if the application is made under subsection (1) (a) (i)—must be
made within 10 business days after the claimant receives the payment schedule;
and
(c) if the application is made under subsection (1) (a) (ii)—must be
made within 20 business days after the due date for payment; and
(d) if the application is made under subsection (1) (b)—must be made
within 10 business days after the earlier of—
(i) the end of the 5-day period mentioned in subsection (2) (b);
and
(ii) the day the claimant receives the payment schedule; and
(e) if the authorised nominating authority has set an application
fee—must be accompanied by the application fee; and
(f) must identify the payment claim and any payment schedule to which it
relates; and
(g) may contain the submissions relevant to the application that the
claimant chooses to include.
(4) The authorised nominating authority must refer the application to an
eligible adjudicator as soon as practicable.
Note For eligibility for adjudicators, see s 20.
20 Eligibility—adjudicators
(1) A person is eligible to be an adjudicator for an adjudication
application if the person—
(a) is an individual; and
(b) has the qualifications, expertise and experience to perform
adjudications; and
(c) has successfully completed a relevant training course.
(2) A person is not eligible to be an adjudicator for a construction
contract—
(a) if the person is a party to the contract; or
(b) if the person is employed by, or represents a building and
construction industry organisation; or
(c) in circumstances prescribed by regulation.
Examples—building and construction
industry organisation
1 Housing Industry Association Limited (ACN 004 631 752)
2 Master Builders Australia Incorporated (ABN 701 134 221 001)
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
21 Adjudicator
for application
(1) If an authorised nominating authority refers an adjudication
application to an adjudicator, the adjudicator may give a notice of acceptance
to the claimant and the respondent.
Note If a form is approved under s 47 for a notice of acceptance,
the form must be used.
(2) If an adjudicator gives a notice of acceptance under subsection (1),
the adjudicator must give the respondent a copy of the adjudication
application.
(3) If an adjudicator gives a notice of acceptance under subsection (1),
the adjudicator is taken to be appointed as the adjudicator for the adjudication
application from the later of—
(a) the day the claimant receives the notice of acceptance; and
(b) the day the respondent receives the notice of acceptance.
22 Adjudication
responses
(1) A respondent may give an adjudicator a response to a claimant's
adjudication application (the adjudication response) at any time
before the later of—
(a) 7 business days after the respondent receives a copy of the
application; or
(b) 5 business days after receiving notice of the adjudicator’s
acceptance of the application.
Note If a form is approved under s 47 for a response, the form must
be used.
(2) The adjudication response—
(a) must be in writing; and
(b) must identify the adjudication application to which it relates;
and
(c) may contain submissions relevant to the response.
(3) The respondent may give an adjudication response only if the
respondent has provided a payment schedule to the claimant within the time
mentioned in section 16 (4) or section 19 (2) (b).
(4) The respondent must not include in the adjudication response any
reasons for withholding payment unless those reasons have already been included
in the payment schedule provided to the claimant.
(5) A copy of the adjudication response must be given to the claimant not
later than 2 days after the response is given to the adjudicator.
Note For how documents may be served, see the Legislation Act,
pt 19.5.
23 Adjudication
procedures
(1) The adjudicator for an adjudication application must not decide the
application until after the end of the period within which the respondent may
give an adjudication response.
(2) The adjudicator must not consider an adjudication response unless the
respondent gives the response to the adjudicator within the time required by
section 22.
(3) The adjudicator must decide an adjudication application as soon as
possible but not later than—
(a) if the respondent is entitled to give an adjudication response under
section 22—10 business days after the earlier of—
(i) the date on which the adjudicator receives the adjudication response;
and
(ii) the date on which the adjudication response is required to be given
to the adjudicator under section 22; or
(b) if the respondent is not entitled to give an adjudication response
under section 22—10 business days after the respondent receives a copy of
the adjudication application; or
(c) if a further time is agreed between the claimant and the
respondent—the further time.
(4) In a proceeding to decide an adjudication application, an
adjudicator—
(a) may ask for further written submissions from either party;
and
(b) if a further submission is lodged by a party—must allow the
other party to comment on the submission; and
(c) may set deadlines for further submissions and comments by the parties;
and
(d) may call a conference of the parties; and
(e) may carry out an inspection of any matter related to the
claim.
(5) If the adjudicator calls a conference—
(a) the conference must be conducted informally; and
(b) the parties are not entitled to legal representation at the
conference.
(6) The adjudicator’s power to decide an adjudication application is
not affected by the failure of a party—
(a) to make a submission within time; or
(b) to comment on a submission within time; or
(c) to comply with the adjudicator’s call for a
conference.
24 Adjudicator’s
decision
(1) The adjudicator for an adjudication application must decide—
(a) the amount of the progress payment, if any, to be paid by the
respondent to the claimant (the adjudicated amount); and
(b) the day on which the amount became or becomes payable; and
(c) the rate of interest payable on the amount.
(2) In deciding an adjudication application, the adjudicator must only
consider the following:
(a) this Act;
(b) the construction contract to which the application relates;
(c) the payment claim to which the application relates, together with any
submission, including relevant documentation, properly made by the claimant in
support of the claim;
(d) the adjudication application;
(e) the payment schedule, if any, to which the application relates,
together with any submission, including relevant documentation, properly made by
the respondent in support of the schedule;
(f) the adjudication response, if any;
(g) the result of any inspection by the adjudicator of any matter related
to the claim.
(3) The adjudicator’s decision must—
(a) be in writing; and
(b) include the reasons for the decision, unless the claimant and the
respondent have both asked the adjudicator not to include the reasons in the
decision.
(4) If the adjudicator values construction work or related goods and
services under section 12, the adjudicator and any other adjudicator must give
the work, or the goods and services—
(a) in a later adjudication involving the valuation of the work or of the
goods and services—the same value as the value decided by the adjudicator;
or
(b) if the claimant or respondent satisfies the adjudicator that the value
of the work, or the goods and services, has changed since the valuation—a
different value to the value decided by the adjudicator.
(5) The adjudicator may, on his or her own initiative or on the
application of the claimant or the respondent, correct a decision
for—
(a) a clerical mistake or defect of form; or
(b) a material miscalculation of figures or a material mistake in the
description of any person, thing or matter mentioned in the decision.
25 Respondent
must pay adjudicated amount
If an adjudicator decides that a respondent must pay an adjudicated amount
to a claimant, the respondent must pay the amount to the claimant on or
before—
(a) the day 5 business days after the day the adjudicator’s decision
is given to the respondent; or
(b) if the adjudicator decides a later day under section
24 (1) (b)—the later day.
26 Failure
to pay adjudicated amount
(1) This section applies if—
(a) an adjudicator decides that a respondent must pay an adjudicated
amount to a claimant; and
(b) a respondent fails to pay the whole, or any part of, an adjudicated
amount to the claimant under section 25.
(2) The claimant may—
(a) ask the authorised nominating authority to whom the adjudication
application was made to provide an adjudication certificate; and
(b) give the respondent notice of the claimant's intention to suspend
carrying out construction work, or to suspend supplying related goods and
services, under the construction contract.
Note If a form is approved under s 47 for this provision, the form
must be used.
(3) An adjudication certificate must state the following:
(a) the name of the claimant;
(b) the name of the respondent;
(c) the adjudicated amount;
(d) the day when payment of the adjudicated amount was required to be paid
to the claimant;
(e) if part of an adjudicated amount has been paid—the amount of the
part payment.
Note If a form is approved under s 47 for this provision, the form
must be used.
(4) If an amount of interest payable on the adjudicated amount is not paid
by the respondent, the claimant may ask the authorised nominating authority to
state the amount of interest payable in the adjudication certificate.
(5) An amount of interest stated in the adjudication certificate is added
to, and becomes part of, the adjudicated amount.
(6) If the claimant has paid the respondent's share of the adjudication
fees for the adjudication but has not been reimbursed by the respondent for that
amount (the unpaid share), the claimant may request the authorised
nominating authority to state the unpaid share in the adjudication certificate.
(7) If an unpaid share is stated in the adjudication certificate, the
unpaid share is added to, and becomes part of, the adjudicated amount.
27 Filing
of adjudication certificate as judgment debt
(1) An adjudication certificate may be filed as a judgment for a debt, and
may be enforced, in any court of competent jurisdiction.
(2) The adjudication certificate must be accompanied by an affidavit by
the claimant stating the amount of the adjudicated amount that has not been paid
at the time the certificate is filed.
(3) If the affidavit states that part of the adjudicated amount has been
paid, the amount to be recovered is the unpaid part of the adjudicated
amount.
(4) If the respondent starts a proceeding to have the judgment set aside,
the respondent—
(a) is not, in the proceeding, entitled—
(i) to bring any cross-claim against the claimant; or
(ii) to raise any defence in relation to matters arising under the
construction contract; or
(iii) to challenge the adjudicator’s decision; and
(b) is required to pay into the court as security the unpaid part of the
adjudicated amount pending the final decision of the proceeding.
28 Claimant
may make new application in certain circumstances
(1) This section applies if—
(a) a claimant fails to receive an adjudicator’s notice of
acceptance of an adjudication application within 4 business days after the
application is made; or
(b) an adjudicator who accepts an adjudication application fails to decide
the application within the time allowed by section 23 (3).
(2) The claimant may—
(a) withdraw the application, by notice in writing served on the
adjudicator or authorised nominating authority to whom the application was made;
and
(b) make a new adjudication application under section 19.
(3) Despite section 19 (3) (c), (d) and (e), a new adjudication
application may be made at any time within 5 business days after the day the
claimant becomes entitled to withdraw the previous adjudication application
under subsection (2).
(4) This part applies to a new application mentioned in this section as if
the application were an application under section 19.
Division
4.3 Claimant's right to suspend
construction work
29 Claimant
may suspend work
(1) This section applies if a claimant gives notice to a respondent under
section 17, section 18 or section 26.
(2) The claimant may suspend carrying out construction work or supplying
related goods and services under a construction contract during the
period—
(a) starting 2 business days after the day the claimant gives the notice
to the respondent; and
(b) ending 3 business days after the day the claimant receives the amount
payable by the respondent under section 17 (1),
section 18 (1) or section 25 (1).
(3) If the claimant, in exercising the right to suspend carrying out
construction work or supplying related goods and services, incurs a loss or
expense because the respondent removes any part of the work or supply from the
contract, the respondent is liable to pay the claimant the amount of the loss or
expense.
(4) A claimant who suspends construction work or the supply of related
goods and services under this section is not liable for loss or damage suffered
by the respondent, or by any person claiming through the respondent, because the
claimant did not carry out that work or supply the goods and services, during
the period of suspension.
Division
4.4 Authorised nominating authorities
and adjudicators
30 Maximum
number of nominating authorities
(1) The Minister may decide the maximum number of people that may be
authorised as a nominating authority.
(2) A decision under subsection (1) is a notifiable instrument
Note A notifiable instrument must be notified under the Legislation
Act.
31 Application
for nominating authority
(1) A person may apply to the Minister to be authorised as a nominating
authority.
Note 1 If a form is approved under s 47 for an application, the form
must be used.
Note 2 A fee may be determined under s 46 for this
provision.
(2) On an application for authorisation the Minister must—
(a) authorise the applicant as a nominating authority if—
(i) the applicant is suitable under section 32; and
(ii) the maximum number of people have not been authorised; or
(b) refuse to authorise the applicant as a nominating authority
if—
(i) the applicant is not suitable under section 32; or
(ii) the maximum number of people have been authorised.
Note A decision to refuse an application under s 31 (2) (b) (i) is a
reviewable decision (see pt 5).
32 Nominating
authority—suitability
In deciding whether an applicant is suitable the Minister must have regard
to the following:
(a) whether the applicant, or a person engaged or employed by the
applicant, has been convicted, or found guilty, in the 5 years before the
application is made, whether in the ACT or elsewhere, of an
offence—
(i) involving fraud or dishonesty; or
(ii) punishable by imprisonment for at least 1 year;
(b) whether the applicant is bankrupt or personally insolvent;
(c) whether the applicant, or a person engaged or employed by the
applicant, at any time in the 5 years before the application is made, was
involved in the management of a corporation when—
(i) the corporation became the subject of a winding-up order; or
(ii) a controller or administrator was appointed;
(d) whether the applicant at any time in the 1 year before the application
is made had—
(i) an authorisation to be a nominating authority cancelled, suspended or
withdrawn under this Act or under a corresponding law; or
(ii) been refused authorisation to be a nominating authority under this
Act or under a corresponding law;
(e) if the applicant represents the interests of a particular section of
the building and construction industry—whether the applicant’s
representation makes the applicant unsuitable to appoint adjudicators.
(1) An authorisation under this division is effective for 3 years starting
on the day the Minister gives the authorisation.
(2) An authorised nominating authority may apply for renewal of the
authorisation.
34 Costs
and expenses—authorised nominating authority
(1) The Minister may determine the maximum amount that an authorised
nominating authority may charge for costs and expenses for any service provided
by the authority in relation to an adjudication application.
(2) An authorised nominating authority may charge costs and
expenses—
(a) if the Minister has made a determination under
subsection (1)—up to the maximum amount for any service provided by
the authority in relation to an adjudication application; or
(b) if the Minister has not made a determination under
subsection (1)—up to a reasonable amount having regard to the work
done and expenses incurred by the authorised nominating authority.
(3) The claimant and respondent are—
(a) each liable to pay any costs and expenses charged by an authorised
nominating authority; and
(b) each liable to contribute to the payment of any such costs and
expenses—
(i) in equal proportions; or
(ii) if the adjudicator decides a different proportion—the
proportion decided.
35 Report—authorised
nominating authority
(1) An authorised nominating authority must provide a report to the
Minister on request.
(2) A report must include information about—
(a) the activities of the authorised nominating authority under the Act;
and
(b) costs and expenses charged by the authority for any service provided
by the authority in relation to an adjudication application made to the
authority.
36 Costs
and expenses—adjudicator
(1) An adjudicator is entitled to be paid for adjudicating an adjudication
application—
(a) if an amount of costs and expenses is agreed between the adjudicator
and the parties to the adjudication—the agreed amount; or
(b) if an amount of costs and expenses is not agreed—a reasonable
amount having regard to the work done and expenses incurred by the
adjudicator.
(2) The claimant and respondent are each liable to pay the
adjudicator’s costs and expenses.
(3) The claimant and respondent are each liable to contribute to the
payment of the adjudicator’s costs and expenses—
(a) in equal proportions; or
(b) if the adjudicator decides a different proportion—the proportion
decided.
(4) An adjudicator is not entitled to be paid costs or expenses in
relation to the adjudication of an adjudication application if he or she fails
to make a decision on the application within the time allowed by section 23 (3).
(5) However, subsection (4) does not apply—
(a) if the failure to make a decision is because the application is
withdrawn or the dispute between the claimant and respondent is resolved; or
(b) if an adjudicator refuses to communicate the decision on an
adjudication application until the fees and expenses are paid; or
(c) in circumstances prescribed by regulation.
37 Protection
from liability—adjudicators and authorised nominating authorities
(1) An adjudicator is not personally liable for anything done or omitted
to be done honestly and without recklessness—
(a) in exercising a function under this Act; or
(b) in the reasonable belief that the act or omission was in the exercise
of a function under this Act.
(2) An authorised nominating authority, and a person exercising a function
relating to the business affairs of an authorised nominating authority under
this Act, are not personally liable for anything done or omitted to be done
honestly and without recklessness—
(a) in exercising a function under this Act; or
(b) in the reasonable belief that the act or omission was in the exercise
of a function under this Act.
38 Effect
of part on civil proceedings
(1) Nothing in this part affects any right that a party to a construction
contract—
(a) may have under the contract; or
(b) may have under part 3 (Right to progress payments) in relation to the
contract; or
(c) may have apart from this Act for anything done or omitted to be done
under the contract.
(2) Nothing done under this part affects any civil proceeding arising
under a construction contract, whether under this part or otherwise, except as
provided by subsection (3).
(3) In any proceeding before a court or tribunal in relation to any matter
arising under a construction contract, the court or tribunal—
(a) must in any order or award it makes in the proceeding, take into
account any amount paid to a party to the contract under or for the purposes of
this part; and
(b) may make the orders it considers appropriate for the restitution of
any amount so paid, and any other orders it considers appropriate, having regard
to its decision in the proceeding.
Part
5 Notification and review of
decisions
39 Meaning
of reviewable decision—pt 5
In this part:
reviewable decision means a decision mentioned in schedule 1,
column 3 under a provision of this Act mentioned in column 2 in relation to the
decision.
40 Reviewable
decision notices
If a person makes a reviewable decision, the person must give a reviewable
decision notice to each entity mentioned in schedule 1, column 4 in relation to
the decision.
Note 1 The person must also take reasonable steps to give a
reviewable decision notice to any other person whose interests are affected by
the decision (see ACT Civil and Administrative Tribunal Act 2008, s 67A).
Note 2 The requirements for reviewable decision notices are
prescribed under the ACT Civil and Administrative Tribunal Act
2008.
41 Applications
for review
The following may apply to the ACAT for review of a reviewable
decision:
(a) an entity mentioned in schedule 1, column 4 in relation to the
decision;
(b) any other person whose interests are affected by the
decision.
Note If a form is approved under the ACT Civil and Administrative
Tribunal Act 2008 for the application, the form must be used.
(1) This Act has effect despite any provision in any contract, agreement
or arrangement.
(2) A provision of any contract, agreement or arrangement, whether in
writing or not, is void to the extent that it—
(a) is inconsistent with this Act; and
(b) purports to, or has the effect of excluding, modifying or restricting
the operation of this Act; and
(c) may reasonably be construed as an attempt to deter a person from
taking action under this Act.
43 Judicial
review of adjudication decision
(1) Except as provided for in this part, a court does not have
jurisdiction to set aside or remit an adjudication decision on the ground of
error of fact or law on the face of the decision.
(2) An appeal may be made to the Supreme Court on any question of law
arising out of an adjudication decision.
(3) An appeal under subsection (2) may be brought by any of the parties to
an adjudication decision—
(a) with the consent of the parties to the decision; or
(b) with the leave of the Supreme Court.
(4) The Supreme Court must not grant leave under subsection (3) (b) unless
it considers that—
(a) having regard to all the circumstances, the determination of the
question of law concerned could substantially affect the rights of 1 or more
parties to the adjudication decision; and
(b) there is—
(i) a manifest error of law on the face of the adjudication decision;
or
(ii) strong evidence that the adjudicator made an error of law and that
the determination of the question may add, or may be likely to add,
substantially to the certainty of the law.
(5) The Supreme Court may make any leave which it grants under subsection
(3) (b) subject to the applicant complying with any conditions it considers
appropriate.
(6) On the determination of an appeal under subsection (2) the Supreme
Court may by order—
(a) confirm, amend or set aside the adjudication decision; or
(b) remit the adjudication decision, together with the Supreme
Court’s opinion on the question of law which was the subject of the
appeal, to—
(i) the adjudicator for reconsideration; or
(ii) if a new adjudicator is appointed by the Supreme Court—to that
adjudicator for consideration.
(7) If an adjudication decision is remitted under subsection (6) (b) the
adjudicator must make the new adjudication decision—
(a) within 10 business days after the day the decision was remitted;
or
(b) within the time directed by the Supreme Court.
(8) If the adjudication decision of an adjudicator is amended on an appeal
under subsection (2), the adjudication decision as amended has effect as if it
were the adjudication decision of the adjudicator.
44 Determination
of question of law by Supreme Court
(1) The Supreme Court has jurisdiction to determine any question of law
arising in an application to the court made by any of the parties to an
adjudication decision—
(a) with the consent of the adjudicator who made the decision;
or
(b) with the consent of the parties to the decision.
(2) The Supreme Court must not consider a question of law under subsection
(1) (a) unless it is satisfied that—
(a) the determination of the question might produce substantial savings in
costs to the parties; and
(b) the question of law is one in respect of which leave to appeal would
be likely to be granted under section 43 (4).
(1) The Minister must review the operation of this Act as soon as possible
after 1 July 2015.
(2) A report on the outcome of the review must be presented to the
Legislative Assembly by 1 July 2016.
(1) The Minister may, in writing, determine fees for this Act.
Note The Legislation Act contains provisions about the making of
determinations and regulations relating to fees (see pt 6.3).
(2) A determination is a disallowable instrument.
Note A disallowable instrument must be notified, and presented to
the Legislative Assembly, under the Legislation Act.
(1) The chief executive may, in writing, approve forms for this
Act.
(2) If the chief executive approves a form for a particular purpose, the
approved form must be used for that purpose.
Note For other provisions about forms, see the Legislation Act, s
255.
(3) An approved form is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
48 Regulation-making
power
(1) The Executive may make regulations for this Act.
Note A regulation must be notified, and presented to the Legislative
Assembly, under the Legislation Act.
(2) A regulation may prescribe offences for contraventions of a regulation
and prescribe maximum penalties of not more than 20 penalty
units.
The Contractors Debts Act 1897 (A1897-29) is repealed.
50 Legislation
Act 2001, schedule 1, part 1.1, item 10
omit
Schedule
1 Reviewable
decisions
(see pt 5)
column
1
item
|
column
2
section
|
column
3
decision
|
column
4
entity
|
1
|
31
|
refuse to authorise nominating authority
|
applicant for authorisation as nominating authority
|
(see s 3)
Note 1 The Legislation Act contains definitions and other provisions
relevant to this Act.
Note 2 For example, the Legislation Act, dict, pt 1, defines the
following terms:
• business day
• exercise
• function
• law, of the Territory.
adjudicated amount—see section 24.
adjudication application—see section 19 (1).
adjudication certificate means a certificate provided by an
authorised nominating authority under section 26.
adjudication response—see section 22 (1).
authorised nominating authority means a nominating authority
authorised by the Minister under section 31.
business day does not include 27, 28, 29, 30 or 31
December.
claimant—see section 15.
claimed amount—see section 15.
construction contract means a contract or other
arrangement under which one party undertakes to carry out construction work, or
to supply related goods and services, for another party.
construction work—see section 7.
corresponding law means a law of the Commonwealth or another
State that provides for security of payments in the building and construction
industry.
due date, for a progress payment, means the day the progress
payment is payable under section 13.
payment claim means a payment claim under section
15.
payment schedule means a payment schedule under section
16.
progress payment—see section 10 (1).
recognised financial institution means a bank or any other
person or body prescribed by regulation for this definition.
related goods and services—see section 8.
respondent—see section 15.
reviewable decision, for part 5 (Notification and review of
decisions)—see section 39.
scheduled amount—see section 16 (2).
Endnotes
1 Presentation speech
Presentation speech made in the Legislative Assembly on 2009.
2 Notification
Notified under the Legislation Act on 2009.
3 Republications of amended laws
For the latest republication of amended laws, see
www.legislation.act.gov.au.
© Australian Capital Territory
2009
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