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BUILDING INDUSTRY FAIRNESS (SECURITY OF PAYMENT) ACT 2017 - SECT 36
Limited purposes for which money may be withdrawn from retention trust account
36 Limited purposes for which money may be withdrawn from
retention trust account
(1) A trustee must not withdraw an amount from the retention trust account for
any purpose other than— (a) paying a beneficiary who is a contracted party
from whom a retention amount was withheld from payment; or
(b) paying the
trustee, as contracting party, for the purpose of correcting defects or
omissions in contracted work, or otherwise to secure, wholly or partly, the
performance of a contract; or
(c) paying another person for the purpose of
correcting defects or omissions in contracted work.
Note— As the
contracting party for a contract, the trustee’s ability to make a payment
mentioned in paragraph (a) , (b) or (c) would be governed by the contract
under which the retention amount was withheld.
Penalty— Maximum penalty—300 penalty units or 2 years imprisonment.
(2) A trustee must not withdraw an amount from the retention trust account for
a payment mentioned in subsection (1) (b) until after the defects liability
period, applying to the amount, ends. Penalty— Maximum penalty—300
penalty units or 2 years imprisonment.
(3) The trustee must repay all
amounts the trustee withdraws in contravention of subsection (1) as soon as
practicable after withdrawing the amount. Penalty— Maximum
penalty—300 penalty units or 2 years imprisonment.
(4) The trustee is
taken to have withdrawn an amount from the retention trust account if— (a)
the trustee authorises any person to make the withdrawal; or
(b) the trustee
knowingly contributes to the withdrawal being made.
(5) This section does not
apply to that part of a retention amount withheld from payment under a
contract that is beyond the amount that may be lawfully withheld under the
contract. Note— See the
Queensland Building and Construction Commission Act 1991 , part 4A for limits
on retention amounts that may be withheld from payment under a contract.
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