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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Building and Construction Industry Security of
Payment Act 2002
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purpose 1
2. Commencement 2
3. Object of Act 2
4. Definitions 3
5. Definition of "construction work" 6
6. Definition of "related goods and services'' 8
7. Application of Act 9
8. Act binds the Crown 11
PART 2--RIGHTS TO PROGRESS PAYMENTS 12
9. Rights to progress payments 12
10. Amount of progress payment 13
11. Valuation of construction work and related goods and services 13
12. Due date for payment 14
13. Effect of "pay when paid" provisions 15
PART 3--PROCEDURE FOR RECOVERING PROGRESS
PAYMENTS 17
Division 1--Payment Claims and Payment Schedules 17
14. Payment claims 17
15. Payment schedules 17
16. Consequences of not paying claimant where no payment
schedule 18
17. Consequences of not paying claimant in accordance with
payment schedule 19
Division 2--Adjudication of Disputes 20
18. Adjudication applications 20
19. Eligibility criteria for adjudicators 22
20. Appointment of adjudicator 22
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Clause Page
21. Adjudication responses 23
22. Adjudication procedures 24
23. Adjudicator's determination 25
24. Correcting mistakes in determinations 26
25. Respondent's obligations following adjudicator's determination 27
26. Designated trust accounts 28
27. Consequences of not complying with adjudicator's determination 30
28. Claimant may make new application if previous application
refused or not determined 31
Division 3--Claimant's Right to Suspend Construction Work 32
29. Claimant may suspend work 32
Division 4--Recovery from Principal 33
30. Application 33
31. Recovery from principal 33
32. Procedure for obtaining payment 34
33. Certification of debt by court 34
34. Notice of claim operates as assignment of debt 34
35. Payment of respondent's debt by principal 35
36. Priority of assignments 35
37. Stay of payments 36
38. Right of recovery if principal fails to pay 36
39. When assignment ceases to operate 37
40. Claimant to provide discharge notice 38
41. Respondent to give information about principal 38
Division 5--General Provisions Relating to Adjudicators 39
42. Authorised nominating authorities 39
43. The Building Commission may impose conditions 39
44. Ministerial guidelines 40
45. Adjudicator's fees 40
46. Liability of adjudicator 42
Division 6--Effect of Part on Civil Proceedings 42
47. Effect of Part on civil proceedings 42
PART 4--MISCELLANEOUS 44
48. No contracting out 44
49. Confidentiality 44
50. Service of notices 44
51. Supreme Court--limitation of jurisdiction 45
52. Regulations 45
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Clause Page
53. Amendment of Building Act 1993--New section 144A inserted 46
144A. Appeals--Building and Construction Industry
Security of Payment Act 2002 46
54. Amendment of Commercial Arbitration Act 1984 47
ENDNOTES 48
INDEX 49
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PARLIAMENT OF VICTORIA
Initiated in Assembly 20 March 2002
A BILL
to provide for entitlements to progress payments for persons who
carry out construction work or who supply related goods and services
under construction contracts and for other purposes.
Building and Construction Industry
Security of Payment Act 2002
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purpose
The main purpose of this Act is to provide for
entitlements to progress payments for persons
5 who carry out construction work or who supply
related goods and services under construction
contracts.
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2. Commencement
(1) Subject to sub-section (2), this Act comes into
operation on a day to be proclaimed.
(2) If this Act does not come into operation before
5 31 January 2003, it comes into operation on that
day.
3. Object of Act
(1) The object of this Act is to ensure that any person
who carries out construction work or who supplies
10 related goods and services under a construction
contract is entitled to receive, and is able to
recover, specified progress payments in relation to
the carrying out of that work and the supplying of
those goods and services.
15 (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 that payment in
circumstances where the relevant construction
contract fails to do so.
20 (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
25 (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 amount of the progress
30 payment determined by the adjudicator or
the setting aside of money as security for
payment of the progress payment; and
(e) the recovery of the progress payment in the
event of a failure to pay.
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(4) It is intended--
(a) that this Act does not limit any other
entitlement that a person may have under a
construction contract, or any other remedy
5 that a person may have for recovering that
other entitlement; and
(b) in particular--
(i) that the payment of the amount of the
progress payment determined by the
10 adjudicator or the setting aside of
money as security does not prejudice
any claim, counter-claim or defence
that may be raised in proceedings
(including arbitration proceedings or
15 other dispute resolution proceedings)
concerning the work or the supply of
goods and services to which the
payment claim relates; and
(ii) that the payment of the amount of the
20 progress payment determined by the
adjudicator is allowed for in any
proceedings (including arbitration
proceedings or other dispute resolution
proceedings) brought under the
25 construction contract concerning the
work or the supply of goods and
services to which the payment claim
relates.
4. Definitions
30 In this Act--
"adjudicated amount" means the amount of a
progress payment that an adjudicator
determines to be payable as referred to in
section 23 together with any amount added
35 to that amount under section 45(7);
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"adjudication application" means an application
referred to in section 18;
"adjudication response" means a response
referred to in section 21;
5 "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
10 person authorised by the Building
Commission under section 42 to nominate
persons to determine adjudication
applications;
"Building Commission" means the Building
15 Commission established under the Building
Act 1993;
"business day" means a day that is not--
(a) a Saturday or Sunday; or
(b) a day that is wholly or partly observed
20 as a public holiday throughout Victoria;
"certified debt" in relation to a claimant, means
the amount specified in a debt certificate as
being owed to the claimant;
"claimant" means a person who serves a
25 payment claim under section 14;
"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
30 section 14;
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"construction contract" means a contract or
other arrangement under which one party
undertakes to carry out construction work, or
to supply related goods and services, for
5 another party;
"construction work" has the meaning given in
section 5;
"debt certificate" means a certificate issued
under section 33;
10 "designated trust account" means an account
kept with a recognised financial institution
(whether in the name of the respondent or
otherwise) for the purpose of holding
adjudicated amounts payable to claimants
15 under this Act;
"discharge notice" means a notice referred to in
section 40;
"due date", in relation to a progress payment,
means the due date for the progress payment,
20 as referred to in section 12;
"exercise" in relation to a function, includes
perform a duty;
"function" includes power, authority or duty;
"judgment" includes order;
25 "notice of claim" means a notice referred to in
section 32;
"payment claim" means a claim referred to in
section 14;
"payment schedule" means a schedule referred
30 to in section 15;
"principal" means a principal referred to in
section 31;
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"progress payment" means a payment to which
a person is entitled under section 9;
"recognised financial institution" means an
authorised deposit-taking institution within
5 the meaning of the Banking Act 1959 of the
Commonwealth;
"related goods and services" has the meaning
given in section 6;
"respondent" means a person on whom a
10 payment claim is served under section 14;
"scheduled amount" means the amount of a
progress payment that is proposed to be
made under a payment schedule, as referred
to in section 15.
15 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,
20 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,
25 demolition or dismantling of any works
forming, or to form, part of land, including
walls, roadworks, power-lines,
telecommunication apparatus, aircraft
runways, docks and harbours, railways,
30 inland waterways, pipelines, reservoirs,
water mains, wells, sewers, industrial plant
and installations for the purposes of land
drainage or coast protection;
(c) the installation in any building or structure of
35 fittings forming, or to form, part of land,
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including heating, lighting, air-conditioning,
ventilation, power supply, drainage,
sanitation, water supply, fire protection,
security and communications systems;
5 (d) the external or internal cleaning of buildings
and structures, so far as it is carried out in the
course of their construction, alteration,
repair, restoration, maintenance or extension;
(e) any operation which forms an integral part
10 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
15 (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 or structure,
20 whether carried out on-site or off-site;
and
(v) site restoration, landscaping and the
provision of roadways and other access
works;
25 (f) the painting or decorating of the internal or
external surfaces of any building or
structure;
(g) any other work of a kind prescribed for the
purposes of this sub-section.
30 (2) Despite sub-section (1), "construction work"
does not include any of the following work--
(a) the drilling for, or extraction of, oil or natural
gas;
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(b) the extraction (whether by underground or
surface working) of minerals, including
tunnelling or boring, or constructing
underground works, for that purpose;
5 (c) any other work of a kind prescribed for the
purposes of this sub-section.
6. Definition of "related goods and services''
(1) In this Act, "related goods and services", in
relation to construction work, means any of the
10 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;
15 (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--
20 (i) the provision of labour to carry out
construction work;
(ii) architectural, design, surveying or
quantity surveying services in relation
to construction work;
25 (iii) building, engineering, interior or
exterior decoration or landscape
advisory or technical services in
relation to construction work;
(c) goods and services of a kind prescribed for
30 the purposes of this sub-section.
(2) Despite sub-section (1), "related goods and
services" does not include any goods or services
of a kind prescribed for the purposes of this sub-
section.
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7. Application of Act
(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
5 if the contract is expressed to be governed by the
law of a jurisdiction other than Victoria.
(2) This Act does not apply to--
(a) a construction contract that forms part of a
loan agreement, a contract of guarantee or a
10 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
15 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
20 (b) a construction contract which is a domestic
building contract within the meaning of the
Domestic Building Contracts Act 1995
between a builder and a building owner
(within the meaning of that Act), for the
25 carrying out of domestic building work
(within the meaning of that Act) the whole of
which is carried out on any part of a
premises that the building owner resides in
or proposes to reside in; or
30 (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
35 calculated otherwise than by reference to the
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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--
5 (a) provisions under which a party undertakes to
carry out construction work, or supply
related goods and services, as an employee
of the party for whom the work is to be
carried out or the related goods and services
10 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
15 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
20 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.
25 (4) This Act does not apply to a construction contract
to the extent to which it deals with--
(a) construction work carried out outside
Victoria; and
(b) related goods and services supplied in
30 respect of construction work carried out
outside Victoria.
(5) This Act does not apply to any construction
contract, or class of construction contracts,
prescribed for the purposes of this section.
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(6) This Act does not apply to a construction contract
entered into before the commencement of this
section.
8. Act binds the Crown
5 This Act binds the Crown in right of Victoria and,
so far as the legislative power of the Parliament
permits, the Crown in all its other capacities.
_______________
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Part 2--Rights to progress payments
s. 9
PART 2--RIGHTS TO PROGRESS PAYMENTS
9. Rights to progress payments
(1) On and from each reference date under a
construction contract, a person--
5 (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 under this Act,
10 calculated by reference to that date.
(2) In this section, "reference date", in relation to a
construction contract, means--
(a) a date determined by or in accordance with
the terms of the contract as--
15 (i) a date on which a claim for a progress
payment may be made; or
(ii) a date by reference to which the amount
of a progress payment is to be
calculated--
20 in relation to work carried out or to be
carried out or related goods and services
supplied or to be supplied under the contract;
or
(b) if the contract makes no express provision
25 with respect to the matter, the date occurring
20 business days after the previous reference
date or (in the case of the first reference date)
the date occurring 20 business days after--
(i) construction work was first carried out
30 under the contract; or
(ii) related goods and services were first
supplied under the contract.
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10. Amount of progress payment
The amount of a progress payment to which a
person is entitled in respect of a construction
contract is to be--
5 (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--
10 (i) construction work carried out by the
person under the contract; or
(ii) related goods and services supplied by
the person under the contract--
as the case requires.
15 11. 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;
20 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
25 (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
30 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.
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(2) Related goods and services supplied under a
construction contract are to be valued--
(a) in accordance with the terms of the contract;
or
5 (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
10 (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
15 in the contract, is to be adjusted by a
specific amount; and
(iv) if any goods are defective, the
estimated cost of rectifying the defect.
(3) For the purposes of sub-section (2)(b), the
20 valuation of materials and components that are to
form part of any building, structure or work
arising from construction work is to be on the
basis that the only materials and components to be
included in the valuation are those that have
25 become (or, on payment, will become) the
property of the party for whom construction work
is being carried out.
12. Due date for payment
A progress payment under a construction contract
30 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
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(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
5 payment.
13. 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--
10 (a) construction work carried out under the
contract; or
(b) related goods and services supplied under the
contract.
(2) In this section--
15 "money owing", in relation to a construction
contract, means money owing for--
(a) construction work carried out under the
contract; or
(b) related goods and services supplied
20 under the contract;
"pay when paid provision" of a construction
contract means a provision of the contract--
(a) that makes the liability of one party (the
"first party") to pay money owing to
25 another party (the "second party")
contingent on payment to the first party
by a further party (the "third party")
of the whole or any part of that money;
or
30 (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 any part
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of that money is made to the first party
by the third party.
_______________
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Part 3--Procedure for recovering progress payments
s. 14
PART 3--PROCEDURE FOR RECOVERING PROGRESS
PAYMENTS
Division 1--Payment Claims and Payment Schedules
14. Payment claims
5 (1) A person who is entitled to a progress payment
under a construction contract (the "claimant")
may serve a payment claim on the person who
under the contract is liable to make the payment.
(2) A claimant may serve only one payment claim in
10 respect of a specific progress payment.
(3) A payment claim--
(a) must identify the construction work or
related goods and services to which the
progress payment relates; and
15 (b) must indicate the amount of the progress
payment that the claimant claims to be due
for the construction work done or related
goods and services supplied to which the
payment relates (the "claimed amount");
20 and
(c) must state that it is made under this Act.
15. Payment schedules
(1) A person on whom a payment claim is served (the
"respondent") may reply to the claim by
25 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
30 any) that the respondent proposes to make
(the "scheduled amount").
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(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
5 reason) the respondent's reasons for withholding
payment.
(4) If--
(a) a claimant serves a payment claim on a
respondent; and
10 (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
15 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
20 relates.
16. 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
25 the claimant under section 15(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 any part of the
30 claimed amount on or before the due date for
the progress payment to which the payment
claim relates.
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(2) In those circumstances, the claimant--
(a) may recover the unpaid portion of the
claimed amount from the respondent, as a
debt due to the claimant, in any court of
5 competent jurisdiction; and
(b) may serve notice on the respondent of the
claimant's intention--
(i) to suspend carrying out construction
work under the construction contract;
10 or
(ii) to suspend supplying related goods and
services under the construction
contract.
(3) A notice referred to in sub-section (2)(b) must
15 state that it is made under this Act.
(4) Judgment in favour of the claimant is not to be
entered unless the court is satisfied of the
existence of the circumstances referred to in sub-
section (1).
20 17. 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
25 (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
30 payment claim is served--
whichever time expires earlier; and
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(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 any
5 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 recover the unpaid portion of the
10 scheduled amount from the respondent, as a
debt due to the claimant, in any court of
competent jurisdiction; and
(b) may serve notice on the respondent of the
claimant's intention to suspend--
15 (i) carrying out construction work under
the construction contract; or
(ii) supplying related goods and services
under the construction contract.
(3) A notice referred to in sub-section (2)(b) must
20 state that it is made under this Act.
(4) Judgment in favour of the claimant is not to be
entered unless the court is satisfied of the
existence of the circumstances referred to in sub-
section (1).
25 Division 2--Adjudication of Disputes
18. Adjudication applications
(1) If the scheduled amount indicated by a payment
schedule is less than the claimed amount indicated
in the payment claim, the claimant may apply for
30 adjudication of the progress payment to be made
(an "adjudication application").
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(2) An adjudication application--
(a) must be in writing; and
(b) must state that the adjudication application is
made under this Act; and
5 (c) must identify the payment claim and the
payment schedule to which it relates; and
(d) may contain any submissions relevant to the
application that the claimant chooses to
include.
10 (3) An adjudication application--
(a) must be made--
(i) to an adjudicator chosen by agreement
between the claimant and the
respondent; or
15 (ii) if no adjudicator is agreed on, to an
authorised nominating authority chosen
by agreement between the claimant and
the respondent; or
(iii) if no nominating authority is agreed on,
20 to an authorised nominating authority
chosen by the claimant; and
(b) must be made within 5 business days after
the claimant receives the payment schedule.
(4) No agreement between the claimant and the
25 respondent that was made before the claimant
received the payment schedule has any effect in
relation to the choice of an adjudicator under sub-
section (3)(a)(i).
(5) A copy of the adjudication application must be
30 served on the respondent.
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(6) This section does not limit the operation of any
provision of the construction contract in relation
to the resolution of disputes between the claimant
and the respondent.
5 (7) It is the duty of an authorised nominating
authority to which an adjudication application is
made to refer the application to an adjudicator as
soon as practicable.
(8) An adjudicator chosen by agreement between the
10 claimant and the respondent or to whom an
application is referred under sub-section (7) must
be a person who is eligible to be an adjudicator as
referred to in section 19.
19. Eligibility criteria for adjudicators
15 (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 any qualifications, expertise
and experience that may be prescribed for
20 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) if the person is an employee of a party to the
25 contract; or
(c) in the circumstances that are prescribed for
the purposes of this section; or
(d) if the person is in a class of person that is
prescribed for the purposes of this section.
30 20. Appointment of adjudicator
(1) An adjudicator accepts an adjudication application
by causing notice of acceptance to be served on
the claimant and the respondent.
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(2) The acceptance takes effect when the last of the
notices is served under sub-section (1).
(3) On accepting an adjudication application, the
adjudicator is taken to have been appointed to
5 determine the application.
(4) An adjudicator must give a copy of a notice of
acceptance under sub-section (1) to the Building
Commission within 10 business days after
accepting an adjudication application under sub-
10 section (1).
21. Adjudication responses
(1) The respondent may lodge with the adjudicator a
response to the claimant's adjudication application
(the "adjudication response") at any time
15 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--
20 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
25 (c) must include the name and address of any
relevant principal of the respondent; and
(d) may contain any submissions relevant to the
response that the respondent chooses to
include.
30 (3) A copy of the adjudication response must be
served on the claimant.
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(4) In this section "relevant principal" in relation to
the respondent, means any person with whom the
respondent has entered into a contract for the
provision by the respondent of construction work
5 or goods and services if the construction work
carried out or the goods and services supplied by
the claimant to or for the respondent under the
construction contract are, or are part of or
incidental to, the construction work or goods and
10 services that the first-mentioned person engaged
the respondent to carry out or supply.
22. Adjudication procedures
(1) An adjudicator is not to determine an adjudication
application until after the end of the period within
15 which the respondent may lodge an adjudication
response.
(2) An adjudicator must serve a written notice on any
person who is included as a relevant principal in
the adjudication response advising that the
20 adjudicator has commenced to determine an
adjudication application.
(3) 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
25 response.
(4) Subject to sub-sections (1) and (3), 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
30 which the acceptance by the adjudicator of
the application takes effect in accordance
with section 20(2); or
(b) within any further time that the claimant and
the respondent may agree.
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(5) For the purposes of any proceedings conducted to
determine an adjudication application, an
adjudicator--
(a) may request further written submissions
5 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
10 (c) may call a conference of the parties; and
(d) may carry out an inspection of any matter to
which the claim relates.
(6) The adjudicator's power to determine an
application is not affected by the failure of either
15 or both of the parties to make a submission or
comment within the time or to comply with the
adjudicator's call for a conference of the parties.
23. Adjudicator's determination
(1) An adjudicator is to determine--
20 (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 that amount became or
becomes payable.
25 Note: The adjudicated amount may be added to under
section 45(7).
(2) In determining an adjudication application, the
adjudicator is to consider the following matters
only--
30 (a) the provisions of this Act and any regulations
made under this Act;
(b) the provisions of the construction contract
from which the application arose;
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(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
5 the claim;
(d) the payment schedule to which the
application relates, together with all
submissions (including relevant
documentation) that have been duly made by
10 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 be in writing
15 and must include--
(a) the reasons for the determination; and
(b) the basis on which any amount or date has
been decided--
if, before the making of the determination, either
20 the claimant or the respondent requests the
adjudicator to include those matters in the
determination.
(4) An adjudicator must give a copy of any
determination that he or she makes to the Building
25 Commission within 5 business days of making
that determination.
24. Correcting mistakes in determinations
(1) An adjudicator may correct a determination made
by him or her if the determination contains--
30 (a) a clerical mistake; or
(b) an error arising from an accidental slip or
omission; or
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(c) a material miscalculation of figures or a
material mistake in the description of any
person, thing or matter referred to in the
determination; or
5 (d) a defect of form.
(2) The correction may be made--
(a) on the adjudicator's own initiative; or
(b) on the application of the claimant or the
respondent.
10 25. Respondent's obligations following adjudicator's
determination
(1) If an adjudicator determines an adjudication
application by determining that the respondent
must pay an adjudicated amount to the claimant,
15 the respondent--
(a) must pay that amount to the claimant; or
(b) must give security for payment of that
amount to the claimant pending the final
determination of the matters in dispute
20 between them.
(2) The respondent may only give security under sub-
section (1)(b), if the respondent has commenced
proceedings (including arbitration proceedings or
other dispute resolution proceedings) against the
25 claimant in relation to a dispute under the
construction contract.
(3) The security given by a respondent may be in any
of the following forms--
(a) a written unconditional undertaking by a
30 recognised financial institution to pay the
claimant, on demand, the adjudicated
amount;
(b) payment of the adjudicated amount into a
designated trust account;
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(c) any other form that may be agreed between
the claimant and the respondent.
(4) If the respondent is the Crown or a public
authority representing the Crown, the security
5 may be in the form of a written statement by the
Department Head of the relevant Government
Department or by the public authority to the effect
that sufficient money will be legally available for
payment of any amount up to the adjudicated
10 amount if and when that amount becomes
payable.
(5) Except with the consent of the parties, it is
unlawful for the claimant to enforce any security
given under this section until at least 2 business
15 days after any matters in dispute between them in
connection with the progress payment to which
the security relates have been finally determined.
(6) For the purposes of sub-section (5), a
determination becomes final--
20 (a) in the case of a determination from which
there is no right of appeal or review, when
the determination is made; or
(b) in the case of a determination from which
there is a right of appeal or review--
25 (i) when the right of appeal or review
expires; or
(ii) if the determination becomes subject to
appeal or review proceedings, when
those proceedings have been finally
30 disposed of.
26. Designated trust accounts
(1) On paying money into a designated trust account
as referred to in section 25(3)(b), the respondent
must give the claimant notice of that payment
35 together with particulars identifying the account
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and the recognised financial institution with which
the account is kept.
(2) Money held in a designated trust account
(including any interest accruing to that money) is
5 taken to be held on the following trusts--
(a) to the extent to which the money is required
to satisfy the claimant's entitlements, the
money is to be applied in satisfaction of
those entitlements;
10 (b) the claimant's entitlements in respect of an
earlier progress claim are to be satisfied
before the claimant's entitlements in respect
of a later progress claim;
(c) to the extent to which any of the money
15 remains in the account after the claimant's
entitlements have been fully satisfied, the
money is to be paid to the respondent.
(3) Subject to sub-section (2), the regulations may
make provision for or with respect to the
20 establishment and operation of designated trust
accounts.
(4) In this section, "claimant's entitlements", in
relation to money held in a designated trust
account, means the amount (if any) to which the
25 claimant becomes entitled after any matters in
dispute between the claimant and the respondent
in connection with the progress payment to which
the money relates have been finally determined.
(5) For the purposes of sub-section (4), a
30 determination becomes final--
(a) in the case of a determination from which
there is no right of appeal or review, when
the determination is made; or
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(b) in the case of a determination from which
there is a right of appeal or review--
(i) when the right of appeal or review
expires; or
5 (ii) if the determination becomes subject to
appeal or review proceedings, when
those proceedings have been finally
disposed of.
27. Consequences of not complying with adjudicator's
10 determination
(1) This section applies if, on or before the relevant
date, a respondent fails to do one or other of the
following--
(a) to pay the whole or any part of the
15 adjudicated amount to a claimant;
(b) to give security for payment of the whole or
any part of the adjudicated amount to a
claimant.
(2) In those circumstances, the claimant--
20 (a) may recover from the respondent, as a debt
due to the claimant, in any court of
competent jurisdiction--
(i) the unpaid, or unsecured, portion of the
adjudicated amount; and
25 (ii) interest at the rate for the time being
fixed under section 2 of the Penalty
Interest Rates Act 1983 on the
adjudicated amount calculated from the
relevant date until judgment is entered
30 in respect of the debt; and
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(b) may serve notice on the respondent of the
claimant's intention--
(i) to suspend carrying out construction
work under the construction contract;
5 or
(ii) to suspend supplying related goods and
services under the construction
contract.
(3) A notice referred to in sub-section (2)(b) must
10 state that it is made under this Act.
(4) Judgment in favour of the claimant is not to be
entered unless the court is satisfied of the
existence of the circumstances referred to in sub-
section (1).
15 (5) Nothing in this section affects the operation of any
Act requiring the payment of interest in respect of
a judgment debt.
(6) In this section, "relevant date" means--
(a) the date occurring 4 business days after the
20 date in which the relevant determination is
made under section 23; or
(b) if the adjudicator determines a later date
under section 23(1)(b), that later date.
28. Claimant may make new application if previous
25 application refused or not determined
(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
30 application is made; or
(b) an adjudicator who accepts an adjudication
application fails to determine the application
within the time allowed by section 22(4).
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(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
5 application was made; and
(b) may make a new adjudication application
under section 18.
(3) Despite section 18(3)(b), a new adjudication
application may be made at any time within
10 5 business days after the claimant becomes
entitled to withdraw the previous adjudication
application under sub-section (2).
(4) This Division applies to a new application referred
to in this section in the same way as it applies to
15 an application under section 18.
Division 3--Claimant's Right to Suspend Construction
Work
29. Claimant may suspend work
(1) A claimant may suspend the carrying out of
20 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 16, 17
25 or 27.
(2) The right conferred by sub-section (1) exists for
so long as the respondent fails to comply with the
requirements referred to in section 16(1), 17(1) or
27(1), as the case may be.
30 (3) The suspension in accordance with this section by
a claimant of the carrying out of construction
work or the supply of goods and services under a
construction contract does not constitute a breach
by the claimant of that contract.
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Division 4--Recovery from Principal
30. Application
This Division applies if--
(a) an adjudicator has determined that an
5 adjudicated amount is payable by a
respondent to a claimant in respect of a
construction contract; and
(b) on or before the relevant date, the respondent
fails to do one or other of the following--
10 (i) to pay the whole or any part of the
adjudicated amount to the claimant;
(ii) to give security for payment of the
whole or any part of the adjudicated
amount to the claimant; and
15 (c) the claimant has obtained judgment for the
adjudicated amount or part of the adjudicated
amount as a debt in a court of competent
jurisdiction.
31. Recovery from principal
20 (1) If the circumstances set out in section 30 apply,
the claimant may obtain payment of the
adjudicated amount or part of that amount in
accordance with this Division out of money that is
payable or becomes payable to the respondent by
25 some other person (the "principal") for
construction work or goods and services that the
principal engaged the respondent to carry out or
supply under a construction contract.
(2) However, the claimant can obtain payment from
30 the principal under this Division only if the
construction work carried out or the goods and
services supplied by the claimant to or for the
respondent under the construction contract are, or
are part of or incidental to, the construction work
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or goods and services that the principal engaged
the respondent to carry out or supply.
32. Procedure for obtaining payment
(1) The following procedure must be followed to
5 obtain payment of the money owed--
(a) firstly, a debt certificate must have been
issued for the money owed (as provided by
section 33); and
(b) secondly, the claimant must serve a notice of
10 claim on the principal.
(2) A notice of claim is a notice in the prescribed
form together with a copy of the debt certificate.
33. Certification of debt by court
(1) When judgment is given or entered in proceedings
15 for the recovery of an adjudicated amount as a
debt, the court may, by order made on the
application of the claimant, issue a certificate (a
"debt certificate") in respect of the debt under
this section.
20 (2) A debt certificate is to be in a prescribed form.
(3) In this section, "judgment" includes a default
judgment.
34. Notice of claim operates as assignment of debt
(1) The service of a notice of claim on the principal
25 operates to assign to the claimant the obligation of
the principal to pay the money owed under the
contract to the respondent.
(2) The assignment is limited to the claimant's
certified debt.
30 (3) The assignment is subject to any prior assignment
under this Division that is binding on the principal
and the respondent.
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35. Payment of respondent's debt by principal
(1) After a notice of claim is served on a principal in
accordance with this Division, the principal must
pay to the claimant the money that the principal
5 owes to the respondent under the contract with the
respondent.
(2) The principal must make the payments to the
claimant as they become payable under the
contract with the respondent until whichever of
10 the following first occurs--
(a) the principal receives a discharge notice or
discharge notices, indicating that the
certified debt has been fully discharged; or
(b) the payments are no longer payable under the
15 contract between the principal and the
respondent.
36. Priority of assignments
(1) The priority of assignments under this Division is
to be determined by the order of service of notices
20 of claim on the principal.
(2) All notices of claim in respect of debts owed by
the same respondent that are served on the
principal within the period of 7 days after the first
notice of claim in respect of the respondent is
25 served on the principal are taken to be served at
the same time and, accordingly, take equal
priority.
(3) Despite section 35, the principal is not to make
any payment to a claimant who serves a notice of
30 claim until that 7 day period has elapsed.
(4) If assignments take equal priority, the principal is
to make the payments by distributing the money
payable between the claimants who have equal
priority pro rata in proportion to the amount of
35 their respective certified debts.
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(5) The principal must continue to make those
payments to each claimant until whichever of the
following first occurs--
(a) the principal receives a discharge notice, or
5 discharge notices, indicating that each
certified debt has been fully discharged; or
(b) the payments are no longer payable under the
contract.
37. Stay of payments
10 (1) If--
(a) a notice of claim is served on a principal
under this Division in relation to the payment
of money owed to a respondent under a
contract; and
15 (b) before the notice was served, the principal
had commenced proceedings in a court
against the respondent in relation to that
contract--
the principal may apply to the court for a stay of
20 payments under this Division in respect of the
notice of claim.
(2) The court may grant a stay applied for under sub-
section (1) and make any ancillary orders it
considers necessary.
25 (3) Despite anything to the contrary in this Division,
if a stay is granted under this section the principal
is not required to make payments under this
Division for the period of the stay.
38. Right of recovery if principal fails to pay
30 (1) An assignment effected by operation of this
Division is valid at law.
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(2) Accordingly, if the principal fails to make any
payment required to be made by this Division, the
claimant may sue for and recover the debt
assigned to the claimant, in the claimant's own
5 name.
(3) Proceedings for recovery of the debt may be taken
in any manner in which the respondent might have
taken them if there had been no assignment.
(4) A claimant's right of recovery under this section is
10 subject to any defence that the principal would
have had against recovery of the debt by the
respondent had there been no assignment, other
than a defence based on something done by the
principal after the notice of claim was served by
15 the claimant.
Example
If the principal continues to make contract payments to the
respondent, rather than the claimant, after having been
served with a notice of claim, the claimant is still entitled to
20 recover the money from the principal.
39. When assignment ceases to operate
(1) If a certified debt is discharged, or the judgment
that resulted in a debt certificate being issued in
respect of the certified debt is set aside by a court,
25 any assignment effected by operation of this
Division in connection with that debt ceases to
operate.
(2) If only part of the certified debt is discharged, the
assignment effected in respect of that part of the
30 certified debt ceases to operate.
(3) This section does not affect any payment or
dealing that is made by a principal in good faith
before the principal receives notice, and sufficient
evidence of, the discharge or setting aside of the
35 debt. To the extent necessary to give effect to that
payment or dealing, the assignment effected by
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operation of this Division is taken to continue in
force.
Note: If a principal makes a payment to a claimant (as
required by section 35), instead of paying the
5 respondent, without knowing that the debt owed to the
claimant has been discharged by the respondent, this
section protects the principal from being required by
the respondent to make payment to the respondent.
40. Claimant to provide discharge notice
10 (1) If a principal or the respondent makes a payment
to the claimant in partial or full discharge of a
certified debt, the claimant must, on the request of
the person making the payment, give the person a
discharge notice in respect of the payment.
15 (2) A discharge notice must--
(a) be in the prescribed form; and
(b) acknowledge the payment of the amount
paid; and
(c) be signed by the claimant.
20 (3) If the claimant does not give the notice within
7 days of the payment and request, the claimant is
to forfeit and pay to the person who made the
payment a sum equal to the amount paid.
(4) The person who made the payment may recover
25 the forfeited amount in any court of competent
jurisdiction as a debt due to the person.
41. Respondent to give information about principal
(1) If an adjudication determination has been made
under this Part in respect of a construction
30 contract, the respondent must, on the demand of
the claimant, supply to the claimant a notice in the
prescribed form that sets out the name of any
person from whom the claimant may be able to
recover the adjudicated amount or part of the
35 adjudicated amount under this Division.
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(2) A person who gives or purports to give a person a
notice under this section knowing that it is false or
misleading in a material particular is guilty of an
offence and liable to a penalty of up to 60 penalty
5 units.
Division 5--General Provisions Relating to Adjudicators
42. Authorised nominating authorities
(1) The Building Commission--
(a) may, on application made by any person,
10 authorise the applicant to nominate
adjudicators for the purposes of this Act; and
(b) may withdraw any authority so given.
(2) Before giving an authority under this section, the
Building Commission must have regard to any
15 guidelines issued by the Minister under
section 44.
Note: An applicant can appeal to the Building Appeals
Board under section 144A of the Building Act 1993
against a decision of the Building Commission to
20 refuse an application or withdraw an authority under
section 42.
43. The Building Commission may impose conditions
The Building Commission may, in accordance
with the guidelines issued by the Minister under
25 section 44--
(a) impose conditions on an authority given
under section 42; and
(b) at any time, vary or revoke any conditions
previously imposed on that authority.
30 Note: An applicant can appeal to the Building Appeals
Board under section 144A of the Building Act 1993
against the imposition or variation of a condition
under section 43.
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44. Ministerial guidelines
(1) The Minister may from time to time issue
guidelines relating to the giving, variation or
withdrawal of authorities under this Division.
5 (2) The guidelines may provide for--
(a) the procedures for making applications;
(b) the information to be provided with
applications;
(c) the qualifications and experience that are
10 relevant to the carrying out of the functions
of an authorised nominating authority;
(d) the financial resources necessary for carrying
out the functions of an authorised
nominating authority;
15 (e) any other matters relating to the capacity of
applicants to carry out the functions of an
authorised nominating authority;
(f) the conditions that may be imposed on an
authority, including conditions relating to the
20 processes to be followed by an authorised
nominating authority in nominating
adjudicators for the purposes of this Act.
(3) Any guidelines issued by the Minister under sub-
section (1) must be published in the Government
25 Gazette.
45. Adjudicator's fees
(1) An adjudicator is entitled to be paid for
adjudicating an adjudication application--
(a) the amount, by way of fees and expenses,
30 that is agreed between the adjudicator and
the parties to the adjudication; or
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(b) if no amount is agreed, the amount, by way
of fees and expenses, that is reasonable
having regard to the work done and expenses
incurred by the adjudicator.
5 (2) The claimant and respondent are jointly and
severally liable to pay the adjudicator's fees and
expenses.
(3) As between themselves, the claimant and
respondent are each liable to contribute to the
10 adjudicator's fees and expenses in equal
proportions or, if the adjudicator determines that
the adjudication application or the adjudication
response was wholly unfounded, in such
proportions as the adjudicator may determine.
15 (4) An adjudicator is not entitled to be paid any fees
or expenses in connection with the adjudication of
an application if he or she fails to make a decision
on the application (otherwise than because the
application is withdrawn or the dispute between
20 the claimant and respondent is resolved) within
the time allowed by section 22(4).
(5) Sub-section (4) does not apply--
(a) in circumstances in which an adjudicator
refuses to communicate his or her decision
25 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.
(6) If a respondent refuses to pay his or her required
30 contribution to the amount of the fees and
expenses that are payable to the adjudicator, the
claimant may elect to pay both the respondent's
contribution and the claimant's contribution to the
adjudicator.
35 (7) If a claimant elects under sub-section (6) to pay
the respondent's contribution to the adjudicator,
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the adjudicator must determine that that amount is
to be added to the adjudicated amount determined
under section 23 and the total of those amounts is
then to be taken to be the adjudicated amount for
5 the purposes of this Act.
46. Liability of adjudicator
An adjudicator is not personally liable for
anything done or omitted to be done in good
faith--
10 (a) in the exercise of a power or the discharge of
a duty under this Act or the regulations; or
(b) in the reasonable belief that the act or
omission was in the exercise of a power or
the discharge of a duty under this Act or the
15 regulations.
Division 6--Effect of Part on Civil Proceedings
47. Effect of Part on civil proceedings
(1) Subject to section 48, nothing in this Part affects
any right that a party to a construction contract--
20 (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
25 the contract.
(2) Nothing done under or for the purposes of this
Part affects any proceedings arising under a
construction contract (including any arbitration
proceedings or other dispute resolution
30 proceedings), whether under this Part or
otherwise, except as provided by sub-sections (3)
and (4).
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(3) In any proceedings before a court or tribunal in
relation to any matter arising under a construction
contract, the court or tribunal--
(a) must allow for any amount paid to a party to
5 the contract under or for the purposes of this
Part in any order, determination or award it
makes in those proceedings; and
(b) may make such orders as it considers
appropriate for the restitution of any amount
10 so paid, and such other orders as it considers
appropriate, having regard to its decision in
those proceedings.
(4) In any arbitration proceedings or other dispute
resolution proceedings under the construction
15 contract, the person determining the arbitration or
dispute must allow for any amount paid to a party
to the contract under or for the purposes of this
Part in any order or determination or award the
person makes in those proceedings.
20 (5) Nothing in this Part affects any right that a
principal may have under any contract except as
expressly provided for in this Act.
_______________
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Part 4--Miscellaneous
s. 48
PART 4--MISCELLANEOUS
48. No contracting out
A provision of any agreement (whether in writing
or not) under which the operation of this Act is
5 excluded, modified or restricted, or which has the
effect of excluding, modifying or restricting the
operation of this Act is void.
49. Confidentiality
The Building Commission, the Building
10 Commissioner and any member of staff of the
Building Commission must not use or disclose
any information received by the Building
Commission under section 20(4) or section 23(4)
except for the purpose of monitoring the operation
15 of this Act.
50. Service of notices
(1) Any notice or document that by or under this Act
is authorised or required to be given to or served
on a person may be given to or served on the
20 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 facsimile addressed
25 to the person's ordinary place of business; or
(d) in such manner as may be prescribed for the
purposes of this section.
(2) The giving of, or service of, a notice or document
that is sent to a person's ordinary place of
30 business, as referred to in sub-section (1)(c), is
taken to have been effected--
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(a) in the case of posting--2 business days after
the day on which the notice or document was
posted;
(b) in the case of a facsimile--at the time the
5 facsimile is received.
(3) If a facsimile is received after 4.00 p.m. on any
day, it must be taken to have been received on the
next business day.
51. Supreme Court--limitation of jurisdiction
10 It is the intention of section 46 to alter or vary
section 85 of the Constitution Act 1975.
52. Regulations
(1) The Governor in Council may make regulations
for or with respect to any matter or thing required
15 or permitted by this Act to be prescribed or
necessary to be prescribed to give effect to this
Act.
(2) Regulations made under this Act may provide in a
specified case or class of cases for the exemption
20 of persons or things or a class of persons or things
from any of the provisions of the Act whether
unconditionally or on specified conditions and
either wholly or to such an extent as is specified.
(3) The commencement of a regulation referred to in
25 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.
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53. Amendment of Building Act 1993--New section 144A
inserted
After section 144 of the Building Act 1993
insert--
5 "144A. Appeals--Building and Construction
Industry Security of Payment Act 2002
(1) A person may appeal to the Building
Appeals Board against a decision of the
Building Commission under section 42 of
10 the Building and Construction Industry
Security of Payment Act 2002--
(a) to refuse an application by the person
for an authority to nominate
adjudicators for the purposes of that
15 Act; or
(b) to withdraw the person's authority to
nominate adjudicators for the purposes
of that Act.
(2) A person may appeal to the Building
20 Appeals Board against a decision of the
Building Commission under section 43 of
the Building and Construction Industry
Security of Payment Act 2002--
(a) to impose a condition on the person's
25 authority to nominate adjudicators for
the purposes of that Act; or
(b) to vary a condition of the person's
authority to nominate adjudicators for
the purposes of that Act.".
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54. Amendment of Commercial Arbitration Act 1984
After section 3(7) of the Commercial
Arbitration Act 1984 insert--
"(8) Nothing in this Act affects the operation of
5 Part 3 of the Building and Construction
Industry Security of Payment Act 2002.".
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Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
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Act No.
INDEX
Subject Clause
Act
amendments to other Acts 53-54
application to construction contracts 7
commencement 2
Crown bound by 8
object 3
purpose 1
Adjudicated amount
adjudicator's fees added to 45
definition 4
determination 23
failure to pay or give security 27, 30
interest 27
payment by respondent 25
recovery from respondent 27
security for payment of 25-26
Adjudicated amount - Recovery from principal
assignment of debt to claimant 34
ceased operation of assignment of debt 39
certified debt (def.) 4
circumstances where applicable 30-31
debt certificates 4, 32-33
discharge of debt 35, 36, 39, 40
forfeiture and restitution of amount paid 40
information about principal 41
notice of claim regarding 4, 32, 34, 36, 37
payment of debt by principal 35-36
priority of assignment of debt 36
principal's failure to pay 38
procedure 32
recovery in claimant's own name 38
right to 31
stay of payments 37
Adjudication applications
acceptance 20
adjudication responses to 4, 21-22
definition 4
determination 22-24
failure to determine 28
making of 18
new applications 28
refusal 28
withdrawal 28
See also Adjudicated amount;
Adjudicated amount - Recovery from
principal
Adjudicators;
Authorised nominating authorities;
4, 21-22
Adjudication responses
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Subject Clause
Adjudicators
appointment 20
correction of mistakes in determinations 24
definition 4
determination of adjudication applications by 22-23
eligibility criteria 19
fees 45
immunity 46
making of applications to 18
referral of applications to 18
See also Authorised nominating authorities
Authorised nominating authorities
authorisation 42
conditions 43
definition 4
making of adjudication applications to 18
Ministerial guidelines 44
referral of applications to adjudicator 18
Building Commission
authorisation of nominating authorities 42-44
confidentiality provisions 49
definition 4
Claims See Payment claims
Construction contracts
application of Act to 7
definition 4
"pay when paid" provisions 13
proceedings arising under 25, 47
void provisions 48
See also Construction work;
Related goods and services
Construction work
definition 5
suspension 16-17, 27, 29
valuation 11
Crown
bound by Act 8
required to give security 25
4, 32-33
Debt certificates
4-6, 9, 13, 21, 26,
Definitions
27, 31, 33
Goods and services See Related goods and services
44
Ministerial guidelines
41
Offences
13
Pay when paid provisions
4, 14
Payment claims
4, 15-16
Payment schedules
Principals
definition 4
included in adjudication responses 21-22
See also Adjudicated amount - Recovery from
principal
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Subject Clause
Proceedings
arising under construction contracts 25, 47
begun by principal against respondent 37
for recovery of debt assigned to claimant 38
Progress payments
amount 10
amounts paid to be considered in proceedings 47
claimant, claimed amount (defs.) 4
definition 4
due date 4, 12
failure to pay 16-17
"pay when paid" provisions of no effect on 13
payment claims 4, 14
payment schedules 4, 15-16
payment when no schedule provided 15-16
recovery of unpaid portions 16-17
reference date in calculation of 9
rights to 9
scheduled amount 4, 15
See also Adjudicated amount;
Adjudicated amount - Recovery from
principal;
Adjudication applications;
Public authorities
required to give security 25
Recovery of money from principal
See Adjudicated amount - Recovery from principal
52
Regulations
Related goods and services
definition 6
suspension of supply 16-17, 27, 29
valuation 11
Respondents (def.) 4
25-27
Security for payment
50
Service of notices
Supreme Court
limitation of jurisdiction 51
Trust accounts
designated trust accounts (def.) 4
payment of adjudicated amount into 25-26
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