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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Building and Construction Industry Security of Payment
Bill 2009
A BILL FOR
An Act to provide for payments for construction work carried out, and
related goods and services supplied, under construction contracts; to make a
related amendment to the Commercial Arbitration and Industrial Referral
Agreements Act 1986; and for other purposes.
Contents
Part 1—Preliminary
1 Short
title
2 Commencement
3 Object of Act
4 Interpretation
5 Definition
of "construction work"
6 Definition of "related goods and
services"
7 Application of Act
Part 2—Rights to progress payments
8 Rights
to progress payments
9 Amount of progress payment
10 Valuation of
construction work and related goods and services
11 Due date for
payment
12 Effect of "pay when paid" provisions
Part 3—Procedure for recovering progress
payments
Division 1—Payment claims and payment
schedules
13 Payment claims
14 Payment schedules
15 Consequences
of not paying claimant where no payment schedule
16 Consequences of not
paying claimant in accordance with payment schedule
Division 2—Adjudication of
disputes
17 Adjudication applications
18 Eligibility criteria for
adjudicators
19 Appointment of adjudicator
20 Adjudication
responses
21 Adjudication procedures
22 Adjudicator's
determination
23 Respondent required to pay adjudicated
amount
24 Consequences of not paying claimant adjudicated amount
25 Filing
of adjudication certificate or costs certificate as judgment debt
26 Claimant
may make new application in certain circumstances
Division 3—Claimant's right to suspend construction
work
27 Claimant may suspend work
Division 4—General
28 Nominating
authorities
29 Adjudicator's fees
30 Protection from liability for
adjudicators and authorised nominating authorities
31 Effect of Part on civil
proceedings
Part 4—Miscellaneous
32 No contracting
out
33 Service of notices
34 Regulations
35 Review of Act
Schedule 1—Related amendment and transitional
provision
Part 1—Preliminary
1 Amendment
provisions
Part 2—Amendment of Commercial Arbitration and
Industrial Referral Agreements Act 1986
2 Amendment of
section 3—Application provisions
Part 3—Transitional provision
3 Transitional
provision
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Building and Construction Industry Security
of Payment Act 2009.
This Act will come into operation on a day to be fixed by
proclamation.
(1) The object of this Act is to ensure that a person who undertakes to
carry out construction work (or who undertakes to supply related goods and
services) under a construction contract is entitled to receive, and is able to
recover, progress payments in relation to the carrying out of that work and the
supplying of those goods and services.
(2) The means by which this Act ensures that a person is entitled to
receive a progress payment is by granting a statutory entitlement to such a
payment regardless of whether the relevant construction contract makes provision
for progress payments.
(3) The means by which this Act ensures that a person is able to recover a
progress payment is by establishing a procedure that involves—
(a) the making of a payment claim by the person claiming payment;
and
(b) the provision of a payment schedule by the person by whom the payment
is payable; and
(c) the referral of any disputed claim to an adjudicator for
determination; and
(d) the payment of the progress payment so determined.
(4) It is intended that this Act does not limit—
(a) any other entitlement that a claimant may have under a construction
contract; or
(b) any other remedy that a claimant may have for recovering any such
other entitlement.
In this Act, unless the contrary intention appears—
adjudicated amount means the amount of a progress payment
that an adjudicator determines to be payable, as referred to in
section 22;
adjudication application means an application referred to in
section 17;
adjudication certificate means a certificate provided by an
authorised nominating authority under section 24;
adjudication fees means fees or expenses charged by an
authorised nominating authority, or by an adjudicator, under this Act;
adjudication response means a response referred to in
section 20;
adjudicator, in relation to an adjudication application,
means the person appointed in accordance with this Act to determine the
application;
authorised nominating authority means a person authorised by
the Minister under section 28 to nominate persons to determine adjudication
applications;
business day means any day other than—
(a) a Saturday, Sunday or public holiday; or
(b) 27, 28, 29, 30 or 31 December;
claimant means person by whom a payment claim is served under
section 13;
claimed amount means an amount of a progress payment claimed
to be due for construction work carried out, or for related goods and services
supplied, as referred to in section 13;
construction contract means a contract or other arrangement
under which 1 party undertakes to carry out construction work, or to supply
related goods and services, for another party;
construction work—see section 5;
due date, in relation to a progress payment, means the due
date for the progress payment, as referred to in section 11;
exercise a function includes perform a duty;
function includes a power, authority or duty;
payment claim means a claim referred to in
section 13;
payment schedule means a schedule referred to in
section 14;
progress payment means a payment to which a person is
entitled under section 8, and includes (without affecting any such
entitlement)—
(a) the final payment for construction work carried out (or for related
goods and services supplied) under a construction contract; and
(b) a single or one-off payment for carrying out construction work (or for
supplying related goods and services) under a construction contract;
and
(c) a payment that is based on an event or date (known in the building and
construction industry as a “milestone payment”);
recognised financial institution means a bank or other person
or body prescribed by the regulations for the purposes of this
definition;
reference date, in relation to a construction contract,
means—
(a) a date determined by or in accordance with the terms of the contract
as the date on which a claim for a progress payment may 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 makes no express provision with respect to the
matter—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 the last day of each subsequent named month;
related goods and services—see
section 6;
respondent means a person on whom a payment claim is served
under section 13;
scheduled amount means the amount of a progress payment that
is proposed to be made under a payment schedule, as referred to in
section 14.
5—Definition
of "construction work"
(1) In this Act—
construction work means any of the following work:
(a) the construction, alteration, repair, restoration, maintenance,
extension, demolition or dismantling of buildings or structures forming, or to
form, part of land (whether permanent or not);
(b) the construction, alteration, repair, restoration, maintenance,
extension, demolition or dismantling of 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;
(c) 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;
(d) 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;
(e) any operation that forms an integral part of, or is preparatory to or
is for rendering complete, work of the kind referred to in paragraph (a),
(b) or (c), including—
(i) site clearance, earth-moving, excavation, tunnelling and boring;
and
(ii) the laying of foundations; and
(iii) the erection, maintenance or dismantling of scaffolding;
and
(iv) the prefabrication of components to form part of any building,
structure or works, whether carried out on-site or off-site; and
(v) site restoration, landscaping and the provision of roadways and other
access works;
(f) the painting or decorating of the internal or external surfaces of any
building, structure or works;
(g) other work of a kind prescribed by the regulations for the purposes of
this subsection.
(2) Despite subsection (1), construction work does not
include the following work:
(a) the drilling for, or extraction of, oil or natural gas;
(b) the extraction (whether by underground or surface working) of
minerals, including tunnelling or boring, or constructing underground works, for
that purpose;
(c) other work of a kind prescribed by the regulations for the purposes of
this subsection.
6—Definition
of "related goods and services"
(1) In this Act—
related goods and services, in relation to construction work,
means any of the following goods and services:
(a) 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 the carrying out of construction work;
(b) 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;
(c) goods and services of a kind prescribed by the regulations for the
purposes of this subsection.
(2) Despite subsection (1), related goods and services
does not include goods or services of a kind prescribed by the regulations for
the purposes of this subsection.
(3) In this Act, a reference to related goods and services includes a
reference to related goods or services.
(1) Subject to this section, this Act applies to any construction
contract, whether written or oral, or partly written and partly oral, and so
applies even if the contract is expressed to be governed by the law of a
jurisdiction other than South Australia.
(2) This Act does not apply to—
(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 with respect to construction work carried
out, or related goods and services supplied, under the construction contract;
or
(b) a construction contract for the carrying out of domestic building work
(within the meaning of the Building Work Contractors Act 1995) on
such part of premises that the party for whom the work is carried out resides in
or proposes to reside in; or
(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 calculated
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 (within the meaning
of the Fair Work Act 1994) 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 this State; and
(b) related goods and services supplied in respect of construction work
carried out outside this State.
(5) This Act does not apply to a construction contract, or class of
construction contracts, prescribed for the purposes of this section.
Part
2—Rights to progress payments
On and from each reference date under a construction contract, a
person—
(a) who has undertaken to carry out construction work under the contract;
or
(b) who has undertaken to supply related goods and services under the
contract,
is entitled to a progress payment.
The amount of a progress payment to which a person is entitled in respect
of a construction contract is to be—
(a) the amount calculated in accordance with the terms of the contract;
or
(b) if the contract makes no express provision with respect to the
matter—the amount calculated on the basis of the value of construction
work carried out or undertaken to be carried out by the person (or of related
goods and services supplied or undertaken to be supplied by the person) under
the contract.
10—Valuation
of construction work and related goods and services
(1) Construction work carried out under a construction contract is to be
valued—
(a) in accordance with the terms of the contract; or
(b) if the contract makes no express provision with respect to the matter,
having regard to—
(i) the contract price for the work; and
(ii) any other rates or prices set out in the contract; and
(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 specific amount; and
(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 are to be valued—
(a) in accordance with the terms of the contract; or
(b) if the contract makes no express provision with respect to the matter,
having regard to—
(i) the contract price for the goods and services; and
(ii) any other rates or prices set out in the contract; and
(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 specific amount; and
(iv) if any of the goods are defective, the estimated cost of rectifying
the defect,
and, in the case of materials and components that are to form part of any
building, structure or work arising from construction work, on the basis that
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
construction work is being carried out.
(1) A progress payment under a construction contract becomes due and
payable—
(a) on the date on which the payment becomes due and payable in accordance
with the terms of the contract; or
(b) if the contract makes no express provision with respect to the
matter—on the date occurring 10 business days after a payment claim
is made under Part 3 in relation to the payment.
(2) Interest is payable on the unpaid amount of a progress payment that
has become due and payable at the rate—
(a) prescribed under the Supreme Court Act 1935 in respect of
judgment debts of the Supreme Court; or
(b) specified under the construction contract,
whichever is the greater.
(3) If a progress payment becomes due and payable, the claimant is
entitled to exercise a lien in respect of the unpaid amount over any unfixed
plant or materials supplied by the claimant for use in connection with the
carrying out of the construction work for the respondent.
(4) A lien or charge over the unfixed plant or materials existing before
the date on which the progress payment becomes due and payable takes priority
over a lien under subsection (3).
(5) Subsection (3) does not confer on the claimant any right against
a third party who is the owner of the unfixed plant or materials.
12—Effect of "pay
when paid" provisions
(1) A pay when paid provision of a construction contract has no effect in
relation to any payment for construction work carried out or undertaken to be
carried out (or for related goods and services supplied or undertaken to be
supplied) under the contract.
(2) In this section—
money owing, in relation to a construction contract, means
money owing for construction work carried out or undertaken to be carried out
(or for related goods and services supplied or undertaken to be supplied) 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 a 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 a 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
3—Procedure for recovering progress payments
Division
1—Payment claims and payment schedules
(1) A person referred to in section 8 who is or who claims to be
entitled to a progress payment (the claimant) may serve a payment
claim on the person who, under the contract concerned, is or may be liable to
make the payment.
(2) A payment claim—
(a) must identify the construction work (or related goods and services) to
which the progress payment relates; and
(b) must indicate the amount of the progress payment that the claimant
claims to be due (the claimed amount); and
(c) must state that it is made under this Act.
(3) The claimed amount may include an amount—
(a) that the respondent is liable to pay the claimant under
section 27(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 served only within—
(a) the period determined by or in accordance with the terms of the
construction contract; or
(b) 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),
whichever is the later.
(5) A claimant cannot serve more than 1 payment claim in respect of
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 person on whom a payment claim is served (the
respondent) may reply to the claim by providing a payment schedule
to the claimant.
(2) A payment schedule—
(a) must identify the payment claim to which it relates; and
(b) must indicate 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 why the scheduled amount is less and (if it is less because the
respondent is withholding payment for any reason) the respondent's reasons for
withholding payment.
(4) If—
(a) a claimant serves a payment claim on a respondent; and
(b) the respondent does not provide a payment schedule to the
claimant—
(i) within the time required by the relevant construction contract;
or
(ii) within 10 business days after the payment claim is
served,
whichever time expires earlier,
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.
15—Consequences
of not paying claimant where no payment schedule
(1) This section applies if the respondent—
(a) becomes liable to pay the claimed amount to the claimant under
section 14(4) as a consequence of having failed to provide a payment
schedule to the claimant within the time allowed by that section; and
(b) fails to pay the whole or a part of the claimed amount on or before
the due date for the progress payment to which the payment claim
relates.
(2) In those circumstances, the claimant—
(a) may—
(i) recover the unpaid portion of the claimed amount from the respondent,
as a debt due to the claimant, in a court of competent jurisdiction;
or
(ii) make an adjudication application under section 17(1)(b) in
relation to the payment claim; and
(b) may serve notice on the respondent of the claimant's intention to
suspend carrying out construction work (or to suspend supplying related goods
and services) under the construction contract.
(3) A notice referred to in subsection (2)(b) must state that it is
made under this Act.
(4) If the claimant commences proceedings under subsection (2)(a)(i)
to recover the unpaid portion of the claimed amount from the respondent as a
debt—
(a) judgment in favour of the claimant is not to be given unless the court
is satisfied of the existence of the circumstances referred to in
subsection (1); and
(b) the respondent is not, in those proceedings, 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.
16—Consequences
of not paying claimant in accordance with payment schedule
(1) This section applies if—
(a) a claimant serves a payment claim on a respondent; and
(b) the respondent provides a payment schedule to the
claimant—
(i) within the time required by the relevant construction contract;
or
(ii) within 10 business days after the payment claim is
served,
whichever time expires earlier; and
(c) the payment schedule indicates a scheduled amount that the respondent
proposes to pay to the claimant; and
(d) the respondent fails to pay the whole or a 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) In those circumstances, the claimant—
(a) may—
(i) recover the unpaid portion of the scheduled amount from the
respondent, as a debt due to the claimant, in a court of competent jurisdiction;
or
(ii) make an adjudication application under section 17(1)(a)(ii) in
relation to the payment claim; and
(b) may serve notice on the respondent of the claimant's intention to
suspend carrying out construction work (or to suspend supplying related goods
and services) under the construction contract.
(3) A notice referred to in subsection (2)(b) must state that it is
made under this Act.
(4) If the claimant commences proceedings under subsection (2)(a)(i)
to recover the unpaid portion of the claimed amount from the respondent as a
debt—
(a) judgment in favour of the claimant is not to be given unless the court
is satisfied of the existence of the circumstances referred to in
subsection (1); and
(b) the respondent is not, in those proceedings, 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.
Division
2—Adjudication of disputes
(1) A claimant may apply for adjudication of a payment claim (an
adjudication application) if—
(a) the respondent provides a payment schedule under Division 1
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 a part of the scheduled
amount to the claimant by the due date for payment of the amount; or
(b) the respondent fails to provide a payment schedule to the claimant
under Division 1 and fails to pay the whole or a part of the claimed amount by
the due date for payment of the amount.
(2) An adjudication application to which subsection (1)(b) applies
cannot be made unless—
(a) the claimant has notified the respondent, within the period of
20 business days immediately following the due date for payment, of the
claimant's intention to apply for adjudication of the payment claim;
and
(b) the respondent has been given 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) must be made to an authorised nominating authority chosen by the
claimant; and
(c) in the case of an application under
subsection (1)(a)(i)—must be made within 10 business days after
the claimant receives the payment schedule; and
(d) in the case of an application under
subsection (1)(a)(ii)—must be made within 20 business days after
the due date for payment; and
(e) in the case of an application under subsection (1)(b)—must
be made within 10 business days after the end of the 5 day period
referred to in subsection (2)(b); and
(f) must identify the payment claim and the payment schedule (if any) to
which it relates; and
(g) must be accompanied by such application fee (if any) as may be
determined by the authorised nominating authority; and
(h) may contain such submissions relevant to the application that the
claimant chooses to include.
(4) The amount of any such application fee must not exceed the amount (if
any) determined by the Minister.
(5) A copy of an adjudication application must be served on the respondent
concerned.
(6) It is the duty of an authorised nominating authority to which an
adjudication application is made to refer the application to an adjudicator
(being a person who is eligible to be an adjudicator as referred to in
section 18) as soon as practicable.
18—Eligibility
criteria for adjudicators
(1) A person is eligible to be an adjudicator in relation to a
construction contract—
(a) if the person is a natural person; and
(b) if the person has such qualifications, expertise and experience as may
be prescribed by the regulations for the purposes of this section.
(2) A person is not eligible to be an adjudicator in relation to a
particular construction contract—
(a) if the person is a party to the contract; or
(b) in such circumstances as may be prescribed by regulation for the
purposes of this section.
(1) If an authorised nominating authority refers an adjudication
application to an adjudicator, the adjudicator may accept the adjudication
application by causing notice of acceptance to be served on the claimant and the
respondent.
(2) On accepting an adjudication application, the adjudicator is taken to
have been appointed to determine the application.
(1) Subject to subsection (3), the respondent may lodge with the
adjudicator a response to the claimant's adjudication application (the
adjudication response) at any time within—
(a) 5 business days after receiving a copy of the application;
or
(b) 2 business days after receiving notice of an adjudicator's acceptance
of the application,
whichever time expires later.
(2) The adjudication response—
(a) must be in writing; and
(b) must identify the adjudication application to which it relates;
and
(c) may contain any submissions relevant to the response that the
respondent chooses to include.
(3) The respondent may lodge an adjudication response only if the
respondent has provided a payment schedule to the claimant within the time
specified in section 14(4) or 17(2)(b).
(4) The respondent cannot include in the adjudication response 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 served on the
claimant.
(1) An adjudicator is not to determine an adjudication application until
after the end of the period within which the respondent may lodge an
adjudication response.
(2) An adjudicator is not to consider an adjudication response unless it
was made before the end of the period within which the respondent may lodge the
response.
(3) Subject to subsections (1) and (2), an adjudicator is to
determine an adjudication application as expeditiously as possible and, in any
case—
(a) within 10 business days after the date on which the adjudicator
notified the claimant and the respondent as to his or her acceptance of the
application; or
(b) within any further time that the claimant and the respondent may
agree.
(4) For the purposes of proceedings conducted to determine an adjudication
application, an adjudicator—
(a) may request further written submissions from either party and must
give the other party an opportunity to comment on those submissions;
and
(b) may set deadlines for further submissions and comments by the parties;
and
(c) may call a conference of the parties; and
(d) may carry out an inspection of any matter to which the claim
relates.
(5) If any such conference is called, it is to be conducted informally and
the parties are not entitled to legal representation.
(6) The adjudicator's power to determine an application is not affected by
the failure of either or both of the parties to make a submission or comment
within time or to comply with the adjudicator's call for a conference of the
parties.
22—Adjudicator's
determination
(1) An adjudicator is to determine—
(a) the amount of the progress payment (if any) to be paid by the
respondent to the claimant (the adjudicated amount); and
(b) the date on which any such amount became or becomes payable;
and
(c) the rate of interest payable on any such amount.
(2) In determining an adjudication application, the adjudicator is to
consider the following matters only:
(a) the provisions of this Act;
(b) the provisions of the construction contract from which the application
arose;
(c) the payment claim to which the application relates, together with all
submissions (including relevant documentation) that have been duly made by the
claimant in support of the claim;
(d) the payment schedule (if any) to which the application relates,
together with all submissions (including relevant documentation) that have been
duly made by the respondent in support of the schedule;
(e) the results of any inspection carried out by the adjudicator of any
matter to which the claim relates.
(3) The adjudicator's determination must—
(a) be in writing; and
(b) include the reasons for the determination (unless the claimant and
respondent have both requested the adjudicator not to include those reasons in
the determination).
(4) If, in determining an adjudication application, an adjudicator has, in
accordance with section 10, determined—
(a) the value of construction work carried out under a construction
contract; or
(b) the value of related goods and services supplied under a construction
contract,
the adjudicator (or any other adjudicator) is, in any subsequent
adjudication application that involves the determination of the value of that
work or those goods and services, to give the work (or the goods and services)
the same value as that previously determined unless the claimant or respondent
satisfies the adjudicator concerned that the value of the work (or the goods and
services) has changed since the previous determination.
(5) If the adjudicator's determination contains—
(a) a clerical mistake; or
(b) an error arising from an accidental slip or omission; or
(c) a material miscalculation of figures or a material mistake in the
description of a person, thing or matter referred to in the determination;
or
(d) a defect of form,
the adjudicator may, on the adjudicator's own initiative or on the
application of the claimant or the respondent, correct the
determination.
23—Respondent
required to pay adjudicated amount
(1) In this section—
relevant date means—
(a) the date occurring 5 business days after the date on which the
adjudicator's determination is served on the respondent concerned; or
(b) if the adjudicator determines a later date under
section 22(1)(b)—that later date.
(2) If an adjudicator determines that a respondent is required to pay an
adjudicated amount, the respondent must pay that amount to the claimant on or
before the relevant date.
24—Consequences
of not paying claimant adjudicated amount
(1) If the respondent fails to pay the whole or a part of the adjudicated
amount to the claimant in accordance with section 23, the claimant
may—
(a) request the authorised nominating authority to whom the adjudication
application was made to provide an adjudication certificate under this section;
and
(b) serve notice on the respondent of the claimant’s intention to
suspend carrying out construction work (or to suspend supplying related goods
and services) under the construction contract.
(2) A notice under subsection (1)(b) must state that it is made under
this Act.
(3) An adjudication certificate must state that it is made under this Act
and specify the following matters:
(a) the name of the claimant;
(b) the name of the respondent who is liable to pay the adjudicated
amount;
(c) the adjudicated amount;
(d) the date on which payment of the adjudicated amount was due to be paid
to the claimant.
(4) If an amount of interest that is due and payable on the adjudicated
amount is not paid by the respondent—
(a) the claimant may request the authorised nominating authority to
specify the amount of interest payable in the adjudication certificate;
and
(b) the amount so specified is to be added to (and becomes part of) the
adjudicated amount.
(5) If the claimant has paid the respondent’s share of the
adjudication fees in relation to the adjudication but has not been reimbursed by
the respondent for that amount (the unpaid share)—
(a) the claimant may request the authorised nominating authority to
specify the unpaid share in the adjudication certificate; and
(b) the amount so specified is to be added to (and becomes part of) the
adjudicated amount.
25—Filing of
adjudication certificate or costs certificate as judgment
debt
(1) An adjudication certificate may be filed as a judgment for a debt in a
court of competent jurisdiction and is enforceable accordingly.
(2) An adjudication certificate cannot be filed under this section unless
it is accompanied by an affidavit by the claimant stating that the whole or a
part of the adjudicated amount has not been paid at the time the certificate is
filed.
(3) If the affidavit indicates that part of the adjudicated amount has
been paid, the judgment is for the unpaid part of that amount only.
(4) If the respondent commences proceedings to have the judgment set
aside, the respondent—
(a) is not, in those proceedings, 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; or
(iii) to challenge the adjudicator’s determination; and
(b) is required to pay into the court as security the unpaid portion of
the adjudicated amount pending the final determination of those
proceedings.
26—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
determine the application within the time allowed by
section 21(3).
(2) In either of those circumstances, the claimant—
(a) may withdraw the application, by notice in writing served on the
adjudicator or the authorised nominating authority to whom the application was
made; and
(b) may make a new adjudication application under
section 17.
(3) Despite section 17(3)(c), (d) and (e), a new adjudication
application may be made at any time within 5 business days after the
claimant becomes entitled to withdraw the previous adjudication application
under subsection (2).
(4) This Division applies to a new application referred to in this section
in the same way as it applies to an application under section 17.
Division
3—Claimant's right to suspend construction work
(1) A claimant may suspend the carrying out of construction work (or the
supply of related goods and services) under a construction contract if at least
2 business days have passed since the claimant has caused a notice of
intention to do so to be given to the respondent under section 15, 16 or
24.
(2) The right conferred by subsection (1) exists until the end of the
period of 3 business days immediately following the date on which the
claimant receives payment for the amount that is payable by the respondent under
section 15, 16 or 23(2).
(3) If the claimant, in exercising the right to suspend the carrying out
of construction work or the supply of related goods and services, incurs loss or
expenses as a result of the removal by the respondent from the contract of a
part of the work or supply, the respondent is liable to pay the claimant the
amount of such loss or expenses.
(4) A claimant who suspends construction work (or the supply of related
goods and services) in accordance with the right conferred by
subsection (1) is not liable for loss or damage suffered by the respondent,
or by a person claiming through the respondent, as a consequence of the claimant
not carrying out that work (or not supplying those goods and services) during
the period of suspension.
(1) Subject to the regulations, the Minister—
(a) may, on application made by any person, authorise the applicant to
nominate adjudicators for the purposes of this Act; and
(b) may withdraw any authority so given.
(2) The Minister may—
(a) limit the number of persons who may, for the time being, be authorised
under this section; and
(b) refuse an application under subsection (1) if authorising the
applicant would result in any such number being exceeded.
(3) A person—
(a) whose application for authority to nominate adjudicators for the
purposes of this Act is refused (otherwise than on the ground referred to in
subsection (2)(b)); or
(b) whose authority to nominate adjudicators is withdrawn,
may apply to the Administrative and Disciplinary Division of the District
Court for a review of the Minister’s decision to take that
action.
(4) An authorised nominating authority may charge a fee for any service
provided by the authority in connection with an adjudication application made to
the authority.
(5) The amount that may be charged for such service must not exceed the
amount (if any) determined by the Minister.
(6) The claimant and respondent are—
(a) jointly and severally liable to pay such fee; and
(b) each liable to contribute to the payment of such fee in equal
proportions or in such proportions as the adjudicator to whom the adjudication
application is referred may determine.
(7) An authorised nominating authority must provide the Minister with such
information as may be requested by the Minister in relation to the activities of
the authority under this Act (including information as to the fees charged by
the authority under this Act).
(1) An adjudicator is entitled to be paid for adjudicating an adjudication
application—
(a) such amount, by way of fees and expenses, as is agreed between the
adjudicator and the parties to the adjudication, or
(b) if no such amount is agreed, such amount, by way of fees and expenses,
as is reasonable having regard to the work done and expenses incurred by the
adjudicator.
(2) The claimant and respondent are jointly and severally liable to pay
the adjudicator’s fees and expenses.
(3) The claimant and respondent are each liable to contribute to the
payment of the adjudicator’s fees and expenses in equal proportions or in
such proportions as the adjudicator may determine.
(4) An adjudicator is not entitled to be paid fees or expenses in
connection with the adjudication of an adjudication application if he or she
fails to make a decision on the application (otherwise than because the
application is withdrawn or the dispute between the claimant and respondent is
resolved) within the time allowed by section 21(3).
(5) Subsection (4) does not apply—
(a) in circumstances in which an adjudicator refuses to communicate his or
her decision on an adjudication application until his or her fees and expenses
are paid; or
(b) in such other circumstances as may be prescribed for the purposes of
this section.
30—Protection
from liability for adjudicators and authorised nominating
authorities
(1) An adjudicator is not personally liable for anything done or omitted
to be done in good faith—
(a) in exercising the adjudicator's functions under this Act; or
(b) in the reasonable belief that the thing was done or omitted to be done
in the exercise of the adjudicator's functions under this Act.
(2) No action lies against an authorised nominating authority or any other
person with respect to anything done or omitted to be done by the authorised
nominating authority in good faith—
(a) in exercising the nominating authority’s functions under this
Act; or
(b) in the reasonable belief that the thing was done or omitted to be done
in the exercise of the nominating authority’s functions under this
Act.
31—Effect of Part
on civil proceedings
(1) Subject to section 32, 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 2 in respect of the contract; or
(c) may have apart from this Act in respect of anything done or omitted to
be done under the contract.
(2) Nothing done under or for the purposes of this Part affects any civil
proceedings arising under a construction contract, whether under this Part or
otherwise, except as provided by subsection (3).
(3) In proceedings before a court or tribunal in relation to a matter
arising under a construction contract, the court or tribunal—
(a) must allow for an amount paid to a party to the contract under or for
the purposes of this Part in any order or award it makes in those proceedings;
and
(b) may make such orders as it considers appropriate for the restitution
of any amount so paid, and such other orders as it considers appropriate, having
regard to its decision in those proceedings.
(1) The provisions of this Act have effect despite any provision to the
contrary in any contract.
(2) A provision of an agreement, whether in writing or
not—
(a) under which the operation of this Act is, or is purported to be,
excluded, modified or restricted, or that has the effect of excluding, modifying
or restricting the operation of this Act; or
(b) that may reasonably be construed as an attempt to deter a person from
taking action under this Act,
is void.
(1) A notice that by or under this Act is authorised or required to be
served on a person may be served on the person—
(a) by delivering it to the person personally; or
(b) by lodging it during normal office hours at the person’s
ordinary place of business; or
(c) by sending it by post or fax addressed to the person’s ordinary
place of business; or
(d) in such other manner as may be prescribed by the regulations for the
purposes of this section; or
(e) in such other manner as may be provided under the construction
contract concerned.
(2) Service of a notice that is sent to a person’s ordinary place of
business, as referred to in subsection (1)(c), is taken to have been
effected when the notice is received at that place.
(3) The provisions of this section are in addition to, and do not limit or
exclude, the provisions of any other law with respect to the service of
notices.
(1) The Governor may make such regulations as are contemplated by, or
necessary or expedient for the purposes of, this Act.
(2) The regulations may, either unconditionally or subject to conditions,
exempt—
(a) a specified person or class of persons; or
(b) a specified matter or class of matters,
from the operation of this Act or of specified provisions of this
Act.
(3) Regulations under this Act may—
(a) be of general application or limited application; or
(b) make different provision according to the matters or circumstances to
which they are expressed to apply.
(4) The commencement of a regulation referred to in section 5, 6 or 7
does not affect the operation of this Act with respect to construction work
carried out, or related goods and services supplied, under a construction
contract entered into before that commencement.
(1) The Minister is to review this Act to determine whether the policy
objectives of the Act remain valid and whether the terms of the Act remain
appropriate for securing those objectives.
(2) The review is to be undertaken as soon as possible after the period of
3 years from the date on which this Act comes into operation.
(3) A report on the outcome of the review is to be tabled in each House of
Parliament within 3 months after the end of the period of
3 years.
Schedule 1—Related
amendment and transitional provision
Part 1—Preliminary
In this Schedule, a provision under a heading referring to the amendment of
a specified Act amends the Act so specified.
Part 2—Amendment of Commercial Arbitration and
Industrial Referral Agreements Act 1986
2—Amendment of
section 3—Application provisions
Section 3—after subsection (9) insert:
(9a) Nothing in this Act affects the operation of Part 3 of the
Building and Construction Industry Security of Payment
Act 2009.
Part 3—Transitional provision
This Act does not apply to a construction contract entered into before the
commencement of this Act.