Queensland Consolidated Acts

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION ACT 1991 - SECT 67J

67J Set-offs under building contracts

(1) The contracting party for a building contract may use a security or retention amount, in whole or in part, to obtain an amount owed under the contract, only if the contracting party has given notice in writing to the contracted party advising of the proposed use and of the amount owed.

(2) The notice must be given within 28 days after the contracting party becomes aware, or ought reasonably to have become aware, of the contracting party’s right to obtain the amount owed.

(3) If, because of subsections (1) and (2) , the contracting party is stopped from using a security or retention amount, the contracting party for the contract is not stopped from recovering the amount owed in another way.

(4) This section does not apply if, under the contract—

(a) work has been taken out of the hands of the contracted party or the contract has been terminated; or

(b) the security or retention amount is to be used to make a payment into court to satisfy a notice of claim of charge under the Building Industry Fairness (Security of Payment) Act 2017 .

(5) In this section—

"amount owed" , under a building contract, means an amount that, under the contract, is a debt due from the contracted party for the contract to the contracting party for the contract because of circumstances associated with the contracted party’s performance of the contract.

"use of security or retention amount" includes the act of converting securities into cash where the securities are held as negotiable instruments.