AustLII Tasmanian Numbered Acts

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BUILDING AND CONSTRUCTION INDUSTRY SECURITY OF PAYMENT ACT 2009 (NO. 86 OF 2009) - SECT 19

Consequences of failing to provide payment schedule within relevant period

(1)  In this section –
building practitioner means any of the following persons: 
(a) a building practitioner, or an owner builder, within the meaning of the Building Act 2000 ;
(b) a person who holds a practitioner's licence, or a contractor's licence, under the Occupational Licensing Act 2005 , authorising the person to perform electrical work within the meaning of Part 1 of Schedule 2 to that Act;
(c) a person who holds a subsisting certificate of registration under the Plumbers and Gas-fitters Registration Act 1951 to perform a class of plumbing work referred to in that Act;
(d) a person who holds a certificate of competency under the Workplace Health and Safety Regulations 1998 ;
(e) a person who holds a subsisting certificate of registration under the Plumbers and Gas-fitters Registration Act 1951 to perform a class of gas-fitting referred to in that Act;
(f) a person who is registered as an architect under the Architects Act 1929 ;
(g) a prescribed person;
owner , in relation to land, means any one or more of the following:
(a) the person in whom is vested a fee simple in the land;
(b) if the land is not registered under the Land Titles Act 1980 and is subject to a mortgage, the person for the time being holding the equity of redemption in that mortgage;
(c) if the land is held under a tenancy for life, the person who is the life tenant;
(d) if the land is held under a lease for a term of not less than 99 years or for a term of not less than another prescribed period, the person who is the lessee of the land;
(e) a person who has a prescribed interest in the land.
(2)  If –
(a) a claimant serves a payment claim on a respondent; and
(b) the respondent does not provide to the claimant a payment schedule –
(i) before the end of the period in which the payment is required to be made under the building or construction contract under which the payment is to be made; or
(ii) before the expiry of the applicable day in relation to the payment claim made to the respondent –
whichever period 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.
(3)  In subsection (2)(b)(ii) , the applicable day in relation to a payment claim made to the respondent –
(a) is the day 20 business days after the payment claim is served on the respondent, if –
(i) the claim relates to a residential structure to be built on land; and
(ii) the respondent is the owner of the land; and
(iii) the respondent is not a building practitioner; or
(b) is, in any other case, the day 10 business days after the payment claim is served on the respondent.
(4)  Subsection (5) applies to a claimant if the respondent –
(a) becomes liable under subsection (2) to pay to the claimant the claimed amount; and
(b) does not pay all of the claimed amount on or before the due date for the progress payment to which the payment claim relates.
(5)  If this subsection applies to a claimant, the claimant –
(a) may –
(i) apply to a court of competent jurisdiction to recover from the respondent the unpaid part of the claimed amount, as a debt due to the claimant; or
(ii) make an adjudication application under section 21 in relation to the payment claim; and
(b) may serve notice on the respondent of the claimant's intention to suspend carrying out building work or construction work, or supplying goods and services, under the building or construction contract.
(6)  A notice served under subsection (5)(b) must specify that the notice is made under this Act.
(7)  If an application is made by a claimant to a court in accordance with subsection (5)(a)(i) to recover from the respondent, as a debt, the unpaid part of the claimed amount specified in a payment claim, the court may give judgment entitling the claimant to recover the unpaid part as a debt due and payable, if the court is satisfied that the respondent –
(a) is liable under subsection (2) to pay to the claimant the claimed amount; and
(b) has not paid all of the claimed amount on or before the due date for the progress payment to which the payment claim relates.
(8)  A respondent in proceedings under this section in a court of competent jurisdiction is not entitled in those proceedings –
(a) to bring a cross-claim against the claimant; or
(b) to raise a defence in relation to matters arising under, or relating to the subject matter of, the building or construction contract.



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