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BUILDING INDUSTRY FAIRNESS (SECURITY OF PAYMENT) ACT 2017 - As at 1 July 2019 - Act 43 of 2017


TABLE OF PROVISIONS

           Long Title

CHAPTER 1 - PRELIMINARY

   PART 1 - INTRODUCTION

   1.      Short title
   2.      Commencement
   3.      The main purpose of Act

   PART 2 - APPLICATION AND OPERATION OF ACT

   4.      Act binds all persons

   PART 3 - INTERPRETATION

   5.      Definitions
   6.      Subcontracts, subcontractors and subcontracted work

CHAPTER 2 - PROJECT BANK ACCOUNTS

   PART 1 - PRELIMINARY

   7.      Purpose of chapter
   8.      Definitions for chapter
   9.      What is a project bank account
   10.     Contract price
   10A.    When amount is liable to be paid to subcontractor
   11.     Who is a supplier
   12.     References to particular terms in this chapter

   PART 2 - WHEN PROJECT BANK ACCOUNTS REQUIRED

           Division 1 - Building contracts requiring project bank account

   13.     Building contracts requiring a project bank account
   14.     Particular government building contracts
   15.     Amendment of building contract

           Division 2 - Building contracts not requiring project bank account

   16.     Building contracts for residential construction work
   17.     Building contracts for maintenance work
   18.     Government contracts tendered before commencement

           Division 3 - Related entities

   19.     Who is a related entity
   20.     Application of chapter if parties to a subcontract are related entities
   21.     Notices about related entities

   PART 3 - PROJECT BANK ACCOUNTS

           Division 1 - Application

   22.     Application of part

           Division 2 - Establishing project bank accounts

   23.     Head contractor must establish project bank account
   24.     Particular requirements for trust accounts
   25.     Name of trust account
   26.     Notice of trust account’s opening, closing or name change

           Division 3 - Payments to project bank account

   27.     All payments from principal to be deposited in project bank account
   28.     Limited purposes for which money may be deposited into project bank account

           Division 4 - Payments from project bank account

   29.     All payments to subcontractor beneficiaries to be paid from project bank account
   30.     Head contractor to cover shortfalls
   31.     Limited purposes for which money may be withdrawn from project bank account
   32.     Order of priority
   33.     Insufficient amounts available for payments

           Division 5 - Retention amounts

   34.     Dealing with retention amounts
   34A.    Withdrawing retention amounts held in retention trust account

           Division 6 - Payment disputes

   34B.    Definitions for division
   35.     When payment dispute occurs
   36.     Obligation to transfer amounts if payment dispute occurs
   36A.    Identifying amounts held in the disputed funds trust account
   36B.    Withdrawing amounts held in disputed funds trust account
   36C.    Returning amounts held in disputed funds trust account after particular time

           Division 7 - Ending project bank account

   37.     Ending project bank account
   38.     Unauthorised ending of project bank account

           Division 8 - Other

   39.     Amounts in project bank account unavailable for head contractor’s debts
   40.     No power of head contractor to invest
   41.     Power to employ agents
   42.     Power to delegate
   43.     Head contractor not entitled to payment for administration of project bank account or fees
   44.     Interest earned on amounts held in project bank account
   45.     Account to be kept by head contractor
   46.     Right of head contractor to apply to Supreme Court for directions
   47.     No assignment of entitlement by head contractor
   48.     Equity and court’s jurisdiction preserved

   PART 4 - INFORMATION SHARING

   49.     Notice of project bank account before entering subcontracts
   50.     Principal to be given information about subcontracts
   51.     Principal and subcontractor to be given copy of payment instruction information
   52.     Principal to inform commissioner of discrepancies

   PART 5 - EFFECT OF INSOLVENCY OR TERMINATION OF BUILDING CONTRACT

           Division 1 - Interpretation

   53.     Definitions for part

           Division 2 - Principal may step in as trustee

   54.     Right of principal to step in as trustee

           Division 3 - Principal as trustee

   54A.    Application of division
   55.     Information to be given to principal as trustee
   55A.    Right of principal to apply to Supreme Court for directions
   56.     Principal as trustee
   57.     Protection from civil liability

   PART 6 - OTHER

   58.     Limited liability of principal
   59.     Application of Personal Property Securities Act 2009 (Cwlth)
   60.     Application of Trust Accounts Act 1973 and Trusts Act 1973

CHAPTER 3 - PROGRESS PAYMENTS

   PART 1 - PRELIMINARY

           Division 1 - Application and operation of chapter

   61.     Application of chapter
   62.     Effect of giving notice of claim for subcontractors’ charges
   63.     Act does not limit claimant’s other rights

           Division 2 - Interpretation

   64.     Definitions for chapter
   65.     Meaning of construction work
   66.     Meaning of related goods and services
   67.     Meaning of reference date
   68.     Meaning of payment claim
   69.     Meaning of payment schedule

   PART 2 - RIGHT TO PROGRESS PAYMENTS

   70.     Right to progress payments
   71.     Amount of progress payment
   72.     Valuation of construction work and related goods and services
   73.     Due date for payment
   74.     Effect of ‘pay when paid’ provisions

   PART 3 - CLAIMING PROGRESS PAYMENTS

   75.     Making payment claim
   76.     Responding to payment claim
   77.     Consequences of failing to give payment schedule
   78.     Consequences of failing to pay claimant

   PART 4 - ADJUDICATION OF DISPUTED PROGRESS PAYMENTS

   79.     Application for adjudication
   80.     When adjudicator ineligible to adjudicate
   81.     Appointment of adjudicator
   82.     Adjudication response
   83.     Time for making adjudication response
   84.     Adjudication procedures
   85.     Time for deciding adjudication application
   86.     Extending time for deciding adjudication application
   87.     Valuation of work etc. in later adjudication application
   88.     Adjudicator’s decision
   89.     Adjudicator may correct clerical mistakes etc.
   90.     Respondent required to pay adjudicated amount
   91.     Adjudication certificate
   92.     Consequences of not paying adjudicated amount
   93.     Filing of adjudication certificate as judgment debt
   94.     Claimant may make new application in certain circumstances
   95.     Adjudicator’s fees
   96.     Deciding fees payable by claimant and respondent
   97.     Withdrawing from adjudication

   PART 5 - SUSPENDING WORK

   98.     Claimant’s right to suspend work

   PART 6 - COURT PROCEEDINGS FOR DEBT RECOVERY

   99.     Notice required before starting particular proceedings
   100.    Proceedings to recover unpaid amount as debt

   PART 7 - MISCELLANEOUS

   101.    Effect of pt 3 on civil proceedings
   102.    Service of notices

CHAPTER 4 - SUBCONTRACTORS’ CHARGES

   PART 1 - PRELIMINARY

           Division 1 - Application and operation of chapter

   103.    Application to particular domestic building work

           Division 2 - Interpretation

   104.    Definitions
   105.    Meaning of work
   106.    References to amount payable under contract and to completion of work specified in subcontract
   107.    When work specified in contract completed

   PART 2 - RIGHT TO SUBCONTRACTOR’S CHARGE

   108.    Contracts to which this part applies
   109.    Charges in favour of subcontractors
   110.    Limits on amount recoverable under subcontractor’s charge
   111.    Subcontractor’s charge valid although provision of the subcontract still to be complied with
   112.    Damages etc. not covered by subcontractor’s charge
   113.    All money paid in reduction of contract price generally subject to subcontractor’s charge
   114.    Assignments etc. of no effect against subcontractor’s charge
   115.    Insufficient money available for claims
   116.    Assignment and transmission of subcontractor’s charge
   117.    No subcontractor’s charge over money held in trust under a project bank account
   118.    Limit of 1 claim for work

   PART 3 - INFORMATION TO BE GIVEN TO SUBCONTRACTOR

   119.    Request for information about building contract or security
   120.    Damages payable for failure to give information

   PART 4 - CLAIMING SUBCONTRACTOR’S CHARGE

           Division 1 - Preliminary

   121.    Application of part

           Division 2 - Action by subcontractor

   122.    Notice of claim
   123.    Copy of notice of claim to contractor
   124.    Copy of notice of claim to the holder of a security
   125.    Withdrawing a notice of claim

           Division 3 - Action by person given notice of claim

   126.    Person given notice of claim must retain money
   127.    Person given notice of claim must comply with request from security holder about s 130 or 131

           Division 4 - Action by contractor given copy of notice of claim

   128.    Contractor given copy of notice of claim must respond

           Division 5 - Payment of claim

   129.    Payment of amount claimed
   130.    Use of security for benefit of subcontractor if contractor accepts liability for all claims
   131.    Use of security for benefit of subcontractor if contractor does not accept liability for all claims
   132.    Authority of court for security
   133.    Particular subcontractor securities of no effect

   PART 5 - ENFORCING SUBCONTRACTOR’S CHARGE

   134.    Recovering amount claimed
   135.    Enforcing subcontractor’s charge on behalf of other subcontractors
   136.    Proceedings for subcontractor’s charge
   137.    Claims of charge relating to retention amount not limited

   PART 6 - PROTECTION AGAINST SUBCONTRACTOR’S CHARGE

   138.    When person prejudicially affected by a claim
   139.    Application to court by person prejudicially affected
   140.    Vexatious claims

   PART 7 - MISCELLANEOUS

   141.    Effect of payment made under order of the court
   142.    Court jurisdiction
   143.    Consolidation of actions
   144.    Power to proceed in absence of person against whom proceedings brought
   145.    Costs
   146.    Appeal
   147.    Qualified persons
   148.    Right to recover debt generally preserved

CHAPTER 5 - ADMINISTRATION

   PART 1 - REGISTRY AND STAFF

           Division 1 - Registry

   149.    Registry

           Division 2 - Registrar

   150.    Adjudication registrar
   151.    Disqualification from appointment
   152.    Term of appointment
   153.    Conditions of appointment
   154.    Registrar’s functions and powers
   155.    Registrar’s policy
   156.    Delegation by registrar

           Division 3 - Other matters

   157.    Annual report on operation of chapter and registry

   PART 2 - ADJUDICATORS

           Division 1 - Preliminary

   158.    Definitions for chapter

           Division 2 - Registration of adjudicators

   159.    Application for registration as adjudicator
   160.    Consideration of application
   161.    Suitability of person to be registered
   162.    Request for further information
   163.    Decision on application for registration
   164.    Term of registration
   165.    Conditions of registration
   166.    Form of certificate of registration

           Division 3 - Renewals of registrations of adjudicators

   167.    Applications for renewal of registration
   168.    Request for further information
   169.    Registration taken to be in force while application for renewal is considered

           Division 4 - Suspension or cancellation of registrations of adjudicators

   170.    Grounds for suspension or cancellation
   171.    Show cause notice
   172.    Representations about show cause notices
   173.    Ending show cause process without further action
   174.    Suspension or cancellation
   175.    Immediate suspension of registration
   176.    Effect of suspension or cancellation of registration of adjudicator

           Division 5 - Internal review of registration decisions

   177.    Applying to registrar for internal review
   178.    Internal review of original decision
   179.    Stay of operation of original decision

           Division 6 - External review of registration decisions

   180.    Applying to QCAT for external review

           Division 7 - Code of conduct

   181.    Code of conduct for adjudicators

           Division 8 - Other provisions about adjudicators

   182.    Adjudicator must comply with registration conditions
   183.    Surrender of registration
   184.    Replacement of certificate of registration
   185.    Adjudicator must give information to registrar
   186.    Protection from liability for adjudicators
   187.    False or misleading statements
   188.    False or misleading documents

CHAPTER 6 - LEGAL PROCEEDINGS

   PART 1 - OFFENCES

   190.    Proceedings for offences
   191.    Enforcement action to comply with prescribed guidelines
   192.    Payment of penalties and fines

   PART 2 - EVIDENCE

   193.    Application of part
   194.    Appointments and authority
   195.    Evidentiary aids
   196.    Proof of signature unnecessary

   PART 3 - CIVIL LIABILITY FOR OFFICIALS

   197.    Protection from liability

CHAPTER 7 - MISCELLANEOUS

   198.    Approved forms
   199.    Delegations
   200.    Contracting out prohibited
   200A.   Review of Act
   200B.   Act does not prevent early payment
   201.    Regulation-making power

CHAPTER 8 - TRANSITIONAL AND REPEAL

   PART 1A - PROVISIONS FOR TRANSITIONAL ARRANGEMENTS BEFORE REPEAL

           201A . References in ch 2 relating to progress payments
           201B . No subcontractors’ charges over money held in trust
           201C . Repeal of transitional regulation

   PART 1 - REPEAL

   202.    Acts repealed

   PART 2 - TRANSITIONAL PROVISIONS FOR THE REPEALED BUILDING AND CONSTRUCTION INDUSTRY PAYMENTS ACT 2004

   203.    Definitions for part
   204.    Continuation of existing appointments and employment
   205.    Unfinished matters for existing payment claims to be dealt with under the repealed Act
           205A . References in ch 2 relating to progress payments
   206.    References to repealed Act

   PART 3 - TRANSITIONAL PROVISIONS FOR THE REPEALED SUBCONTRACTORS’ CHARGES ACT 1974

   207.    Definitions for part
   208.    Preservation of existing entitlement to subcontractors’ charges
   209.    Unfinished matters for existing subcontractors’ charges to be dealt with under the repealed Act
   210.    References to repealed Act

   PART 4 - OTHER TRANSITIONAL PROVISION

   211.    Transitional regulation-making power

CHAPTER 9 - AMENDMENT OF THIS AND OTHER ACTS

   PART 1 - AMENDMENT OF THIS ACT

           Division 2 - (Uncommenced)

   214.    (Uncommenced)
   215.    (Uncommenced)
   216.    (Uncommenced)
   217.    (Uncommenced)

           Division 3 - (Uncommenced)

   218.    (Uncommenced)
   219.    (Uncommenced)
   220.    (Uncommenced)
   221.    (Uncommenced)
   222.    (Uncommenced)
   223.    (Uncommenced)
   224.    (Uncommenced)
   225.    (Uncommenced)
   226.    (Uncommenced)
   227.    (Uncommenced)
   228.    (Uncommenced)
   229.    (Uncommenced)
   230.    (Uncommenced)
   231.    (Uncommenced)

   PART 4 - (Uncommenced)

   281.    (Uncommenced)
   307.    (Repealed)
           SCHEDULE 2


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