The amendments to the Building and Construction Industry Payments Act 2004 (Qld) (BCIPA) came into force yesterday. Last minute further amendments to the BCIPA were passed on 26 November 2014, relating to the transitional provisions of the amending Act. Existing contracts are now subject to the new recovery of progress payments procedures, subject to a few exceptions. Industry participants will need to be aware of these recent amendments, particularly coming into the Christmas and New Year holiday shut down period, as the timing of all payment claims, payment schedules and adjudications will be impacted.
Key Points
- Amendments to the BCIPA commenced on 15 December 2014.
- A last minute change to the amending Act means that any contract entered into prior to 15 December 2014 will now be subject to the new recovery of progress payments procedures in the BCIPA.
- The new definition of 'business day' will apply to all payment claims made after 15 December 2014, regardless of when the contract was signed.
- Any payment claims served before 15 December 2014 will be subject to a transitional version of the BCIPA, which is similar to the previous version of the BCIPA, a few amendments have been made.
Last Minute Changes to the Amending Act of the BCIPA
Between the assent and the proclamation of the amending Act, the following further changes were made to the amending Act on 26 November 2014:
- the transitional provision, which provided that the new recovery of progress payments procedure did not apply to any contract which was signed prior to the commencement of the amending Act has been removed
- further transitional provisions which apply only to any contract which was signed prior to the commencement of the amending Act were included, which state that:
- the timeframes changed by the amending Act regarding the maximum period for serving a payment claim will be extended from six months to 12 months for a period of six months (ie until 15 June 2015)
- if the contractor's right to make a payment claim has expired at the commencement of the amending Act, it will not be revived by the new timeframe under section 17A(3)(b) ie to make a payment claim 28 days after the expiry of the end of the last defects liability period under the contract.
What This Means for You
The new BCIPA procedures will now apply from commencement for all new payment claims and are intended to eliminate the dual system of different timeframes and procedures.
Industry participants will need to be aware that the timing provisions in current contracts may now be incorrect, as the definition of business day has now changed and is retrospective. This will be particularly important over the Christmas and New Year shut down period.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
