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BUILDING INDUSTRY FAIRNESS (SECURITY OF PAYMENT) ACT 2017


- As at 1 July 2021 
- 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 - STATUTORY TRUSTS

   PART 1 - PRELIMINARY

   7.      Purpose of chapter
   8.      Definitions for chapter
   8A.     Meaning of project trust work
   8B.     Meaning of protected work
   9.      Meaning of contract price

   PART 2 - PROJECT TRUSTS

           Division 1 - Preliminary

   10.     Definitions for part
   10A.    Who is a related entity
   10B.    When amount liable to be paid to subcontractor
   10C.    References to particular terms in this part

           Division 2 - Project trusts

   11.     What is a project trust
   11A.    Who are the trustee and beneficiaries of a project trust
   11B.    What are the beneficial interests in a project trust

           Division 3 - Contracts requiring project trusts

              Subdivision 1 - When project trust required

   12.     When project trust required for a contract
   13.     (Repealed)

              Subdivision 2 - Eligible contracts

   14.     Particular contracts for project trust work
   14A.    Amendments of contracts requiring project trusts
   14B.    Multiple contracts at same site or adjacent sites
   14C.    Subcontracts with related entities require project trusts
   14D.    Prescribed contracts require project trusts
   14E.    Prescribed subcontracts require project trusts

              Subdivision 3 - Exempt contracts

   15.     Subcontracts generally
   15A.    Contracts with particular entities
   15B.    Contracts between the State and a state authority
   15C.    Contracts for small scale residential construction work
   15D.    Contracts for maintenance work
   15E.    Contracts for professional design, advisory or contract administration work
   15F.    Contracts with less than 90 days until practical completion
   16.     (Repealed)

           Division 4 - Project trust administration

              Subdivision 1 - Establishing project trusts

   17.     Establishment of project trust

              Subdivision 2 - Project trust accounts

   18.     Contracted party must open project trust account
   18A.    Restrictions for project trust account
   18B.    Notice of project trust account’s opening, closing or name change
   18C.    Change of financial institution

              Subdivision 3 - Payments to project trust account

   19.     All payments from contracting party to be deposited in project trust account
   19A.    Limited purposes for which money may be deposited in project trust account

              Subdivision 4 - Payments from project trust account

   20.     All payments to subcontractor beneficiaries to be paid from project trust account
   20A.    Limited purposes for which money may be withdrawn from project trust account
   20B.    Order of priority
   20C.    Insufficient amounts available for payments

              Subdivision 5 - Ending project trust

   21.     Ending project trust
   21A.    Unauthorised dissolution of project trust
   22.     (Repealed)

           Division 5 - Information sharing

   23.     Notice of project trust before entering subcontracts
   23A.    Subcontractor beneficiary to be informed of particular withdrawals
   23B.    Subcontractor beneficiary may request particular information

           Division 6 - Obligations of contracting party

   24.     Contracting party to report related entities
   24A.    Contracting party to report failure to establish project trust

           Division 7 - Other matters

   25.     Contracted party to report related entities
   25A.    Limited liability of contracting party
   25B.    No assignment of entitlement by contracted party

   PART 3 - RETENTION TRUSTS

           Division 1 - Preliminary

   30.     Definitions for part
   30A.    References to particular terms in this part

           Division 2 - Retention trusts

   31.     What is a retention trust
   31A.    Who are the trustee and beneficiaries of a retention trust
   31B.    What are the beneficial interests in a retention trust

           Division 3 - When retention trusts required

   32.     When retention trust required

           Division 4 - Retention trust administration

              Subdivision 1 - Establishing retention trusts

   33.     Establishment of retention trust
   33A.    Charge over retention amounts held in retention trust

              Subdivision 2 - Retention trust accounts

   34.     Contracting party withholding retention amount must open retention trust account
   34A.    Restrictions for retention trust account
   34B.    Notice of retention trust account’s opening, closing or name change
   34C.    Change of financial institution

              Subdivision 3 - Payments to retention trust account

   35.     All retention amounts withheld must be deposited in retention trust account
   35A.    Limited purposes for which money may be deposited in retention trust account

              Subdivision 4 - Payments from retention trust account

   36.     Limited purposes for which money may be withdrawn from retention trust account
   36A.    All retention amounts withheld to be released from retention trust account
   36B.    (Repealed)
   36C.    (Repealed)

              Subdivision 5 - Ending retention trust

   37.     Ending retention trust
   37A.    Unauthorised dissolution of retention trust
   38.     (Repealed)
   39.     (Repealed)

           Division 5 - Information sharing

   40.     Notice of retention trust before withholding retention amount
   40A.    Beneficiary to be informed of transactions affecting retention amount
   40B.    Beneficiary may request particular information

           Division 6 - Compulsory training

   41.     Training before withholding retention amount
   42.     (Repealed)
   43.     (Repealed)

           Division 7 - Other matters

   43A.    No assignment of entitlement by contracting party
   44.     (Repealed)
   45.     (Repealed)
   46.     (Repealed)
   47.     (Repealed)
   48.     (Repealed)
   49.     (Repealed)

   PART 4 - COMMON PROVISIONS FOR PROJECT TRUSTS AND RETENTION TRUSTS

           Division 1 - Preliminary

   50.     Definitions for part

           Division 2 - Powers, obligations and restrictions for trustees

   51.     Trustee to cover shortfalls
   51A.    Amounts in trust account unavailable for trustee’s debts
   51B.    No power of trustee to invest
   51C.    Trustee not entitled to payment for administration of trust or fees
   51D.    Interest earned on amounts held in trust account
   51E.    Employment or engagement of agents
   51F.    Power to delegate
   51G.    Right of trustee to apply to Supreme Court for directions

           Division 3 - Trust records

   52.     Trust records
   52A.    Monthly bank reconciliation

           Division 4 - Oversight powers

              Subdivision 1 - Powers exercised by the commissioner

   53.     Register of project trusts and retention trusts
   53A.    Power to require particular information
   53B.    Power to issue directions affecting trust accounts
   53C.    Right of commissioner to apply to Supreme Court for directions

              Subdivision 2 - Special investigators

   53D.    Power to appoint special investigator
   53E.    Obstructing special investigator
   53F.    Impersonating special investigator

              Subdivision 3 - Other matters

   53G.    Protection from civil liability

           Division 5 - Exclusion of auditors

   54.     Definitions for division
   54A.    Grounds for excluding persons from undertaking trust account reviews and preparing account review reports
   54B.    Show cause notice
   54C.    Representations about show cause notice
   54D.    Ending show cause process without further action
   54E.    Excluding persons from undertaking trust account reviews and preparing account review reports
   54F.    Commissioner may publish information about exclusions

           Division 6 - Financial institutions

   55.     Approval of financial institutions
   55A.    Financial institutions not subject to particular obligations and liabilities
   55B.    Reports, records and information
   55C.    Directions to financial institutions

           Division 7 - Application of particular Acts

   56.     Application of Personal Property Securities Act 2009 (Cwlth)
   56A.    Application of Trust Accounts Act 1973 and Trusts Act 1973
   56B.    Equity and court’s jurisdiction preserved

           Division 8 - Auditing and reporting

   57.     Engaging auditor for review of trust account
   57A.    Account review report
   57B.    Trust records to be given to auditor
   57C.    Reporting serious breaches

           Division 9 - Other matters

   58.     Commissioner may give redacted information to professional bodies
   58A.    Liability of executive officer for offence committed by corporation against executive liability provision
   58B.    Failures and defects do not affect validity
   59.     (Repealed)
   60.     (Repealed)

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 4A - REQUIRING HIGHER PARTY TO WITHHOLD PAYMENT

   97A.    Definitions for part
   97B.    Higher party may be required to retain amount owed to respondent
   97C.    Obligation of higher party to retain amount payable to respondent
   97D.    Contravention of requirement by higher party
   97E.    Protections for higher party
   97F.    Respondent to provide information about higher party
   97G.    Charge over amount retained
   97H.    Other rights of claimant not affected

   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 6A - CHARGE OVER PROPERTY

           100A . Definitions for part
           100B . Registering charge over property for unpaid adjudicated amount
           100C . Expiry of charge
           100D . Release of charge
           100E . Application to set aside charge
           100F . Enforcing a charge
   100G.   Orders court may make
           100H . Effect of court order

   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 trust or retention trust
   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

   PART 3 - AUDITS

   189.    Approved audit program
   189A.   Supply of financial records and other documents under approved audit program or for other reason
   189B.   Evidential immunity for individuals complying with commissioner’s requirement

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
   198A.   Approved ways to give particular documents to commissioner or registrar
   199.    Delegations
   200.    Contracting out prohibited
   200A.   Review of Act
   200B.   Act does not prevent early payment
           200C . Giving official false or misleading information
           200D . False or misleading information in particular documents
           200E . Confidentiality of information
   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.    (Expired)

CHAPTER 8A - TRANSITIONAL PROVISIONS FOR BUILDING INDUSTRY FAIRNESS (SECURITY OF PAYMENT) AND OTHER LEGISLATION AMENDMENT ACT 2020

           211A . Definitions for chapter
           211B . Continued application of former chapter 2 for particular building contracts
           211C . Transitioning to new scheme
           211D . Project trusts and contracts entered into before the commencement of new phases
           211E . 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)

           Division 3 - (Uncommenced)

   216.    (Uncommenced)

           Division 4 - (Uncommenced)

   217.    (Uncommenced)
   218.    (Uncommenced)
   219.    (Repealed)
   220.    (Repealed)
   221.    (Repealed)
   222.    (Repealed)
   223.    (Repealed)
   224.    (Repealed)
   225.    (Repealed)
   226.    (Repealed)
   227.    (Repealed)
   228.    (Repealed)
   229.    (Repealed)
   230.    (Repealed)
   231.    (Repealed)
           SCHEDULE 2


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