New regulations and fixed start date for the next tranche of the BIF Act

Commencement of the next tranche

On 8 November 2018, the Government fixed 17 December 2018 as the date for the commencement of the next tranche of the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (BIF Act). This means that, among other changes, on 17 December 2018:

• the Building and Construction Industry Payments Act 2004 (Qld) will be replaced by Chapter 3 of the BIF Act; and
• the Subcontractors’ Charges Act 1974 (Qld) will be replaced by Chapter 4 of the BIF Act.

While these two Acts will be repealed, industry participants should keep in mind that, for the specified ‘unfinished matters’, the repealed Acts will continue to apply (rather than the BIF Act).

New Regulations

The Government has also released further regulations for the BIF Act, in the form of the Building Industry Fairness (Security of Payment) and Other Legislation Amendment Regulation 2018 (Qld) (Regulations).

A key change by the Regulations is that, under the BIF Act, there will be greater restrictions on an adjudication application relating to a payment claim for a progress payment of not more than $25,000.  There are three main aspects to this:

• Page limits: submissions for an adjudication application or an adjudication response relating to a payment claim for a progress payment of not more than $25,000 must not exceed 10 pages;
• Restrictions on supporting documents: supporting documents for an adjudication application or an adjudication response relating to a payment claim for a progress payment of not more than $25,000 will be limited to:
  • the respective payment claim and payment schedule;
  • the construction contract;
  • documents given in support of the payment claim or payment schedule at the time of the claim or schedule was given to the other party;
  • documents given by one party to the other party relating to the construction contract[1]
  • an expert report about a matter to which the payment claim relates;
  • a statutory declaration about a matter to which the payment claim relates; and
• Capped fees: there will be a regime of tiered caps for an adjudicator’s fees and expenses (tied to the amount of the progress payment) for adjudicating an adjudication application relating to a payment claim for a progress payment of not more than $25,000.

Claimants should also be aware that the Regulations provide for a deadline of 5:00 pm for the lodgment of an adjudication application. This applies to all adjudication applications. An application lodged after 5:00 pm will be taken to be lodged on the next business day.

Further information

A copy of the commencement proclamation may be found here.

A copy of the Regulations may be found here.

This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.