VICTORIA
Building and Construction Industry Security of Payment (Amendment) Act 2006
Act No. 42/2006
TABLE OF PROVISIONS
Section Page
1. Purpose 1
2. Commencement 2
3. Principal Act 2
4. Object of Act 2
5. Definitions 3
6. Definition of "construction work" 5
7. Definition of "related goods and services" 5
8. Application of Act 5
9. Rights to progress payments 6
10. Amount of progress payment 8
11. Insertion of sections 10A and 10B 8
10A. Claimable variations 8
10B. Excluded amounts 11
12. Valuation of construction work and related goods and services 12
13. Interest payable on overdue progress payment 13
14. Insertion of section 12A 13
12A. Lien in respect of unpaid progress payment 13
15. Effect of "pay when paid" provisions 14
16. Substitution of section 14 15
14. Payment claims 15
17. Payment schedules 17
18. Consequences of not paying claimant where no payment schedule 18
19. Consequences of not paying claimant in accordance with payment schedule 19
20. Adjudication applications 20
21. Adjudication responses 22
22. Adjudication procedures 23
23. Adjudicator's determination 24
24. Section 23A inserted 26
23A. Adjudication determination to be given to parties and Building Commission 26
25. Correcting mistakes in determinations 26
26. Repeal of sections 25 to 27 26
27. Claimant may make new application if previous application refused or not determined 27
28. New Divisions 2A and 2B inserted in Part 3 27
Division 2A—Review of Adjudication 27
28A. Threshold for review 27
28B. Application for review by respondent 27
28C. Application for review by claimant 28
28D. Procedure for making application 28
28E. Right to make submissions 29
28F. Designated trust account 29
28G. Appointment of review adjudicator 30
28H. Adjudication review procedures 31
28I. Adjudication review determination 32
28J. Authorised nominating authority must notify persons of review determination 35
28K. Withdrawal of adjudication review application 35
28L. Correcting mistakes in review determinations 35
Division 2B—Payment and Recovery of Adjudicated Amounts 36
28M. Respondent required to pay adjudicated amount 36
28N. Payment after review determination 36
28O. Consequences of respondent not paying adjudicated amount 37
28P. Consequences of claimant not paying adjudicated amount 38
28Q. Adjudication certificates 38
28R. Proceedings to recover amount payable under section 28M or 28N 40
29. Claimant may suspend work 42
30. New section 29A inserted 43
29A. Definitions 43
31. Recovery from principal 43
32. Substitution of Division heading 44
33. Insertion of sections 43A, 43B and 43C 44
43A. Functions of an authorised nominating authority 44
43B. Authorised nominating authority to provide
information 45
43C. Authorised nominating authority fees 46
34. Ministerial guidelines 46
35. Substitution of section 45 47
45. Adjudicator's and review adjudicator's fees 47
36. Liability of adjudicator 49
37. Insertion of new Part 3A 49
PART 3A—ADMINISTRATION 49
47A. Functions of the Building Commission 49
47B. Register of authorised nominating authorities 49
47C. Recording and publishing of determinations 50
38. Substitution of sections 48 and 49 50
48. No contracting out 50
49. Confidentiality 51
39. Service of notices 51
40. Supreme Court—limitation of jurisdiction 51
41. Insertion of additional regulation-making powers 52
42. Substitution of section 53 52
53. Transitional provision—Building and Construction Industry Security of Payment (Amendment)
Act 2006 52
43. Repeal of section 54 53
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ENDNOTES 54
Victoria
No. 42 of 2006
Building and Construction Industry Security of Payment (Amendment) Act 2006†
[Assented to 25 July 2006]
The Parliament of Victoria enacts as follows:
1. Purpose
The main purpose of this Act is to amend the Building and Construction
Industry Security of Payment Act 2002 to make further provision with
respect to payments for construction work and for the supply of related
goods and services under construction contracts.
2. Commencement
s. 2
(1) This section and sections 1,
3, 38, 39 and 41 come into operation on the day after the day on which
this Act receives the Royal Assent.
(2)
The remaining provisions of this Act come into
operation on a day or days to be proclaimed.
(3) If a provision referred to in
sub-section (2) does not come into operation before 30 March 2007, it
comes into operation on that day.
3. Principal Act
See:
Act No.
15/2002.
LawToday:
www.dms.
dpc.vic.
gov.au
In this Act, the Building and Construction Industry Security of Payment Act 2002 is called the Principal Act.
4. Object of Act
(1) In section 3 of the Principal Act—
(a) in sub-section (1)—
(i) for "carries out construction
work or who supplies" substitute "undertakes to carry out construction
work or who undertakes to supply";
(ii) omit "specified";
(b) in sub-section (2), for
"circumstances where the relevant construction contract fails to do so"
substitute "accordance with this Act";
(c) in sub-section (3)(d) omit "or
the setting aside of money as security for payment of the progress
payment".
(2) For section 3(4) of the Principal Act substitute—
"(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 that other entitlement.".
5. Definitions
s. 5
In section 4 of the Principal Act—
(a) insert the following definitions—
' "adjudication certificate" means a certificate provided by an authorised nominating authority under section 28Q;
"adjudication determination" means a determination made by an adjudicator under section 23;
"adjudication fees" means any fees or expenses charged by an authorised
nominating authority or by an adjudicator or review adjudicator under
this Act;
"adjudication review" means a review of an adjudication determination under Division 2A of Part 3;
"adjudication review application" means an application under section 28B or 28C;
"claimable variation" has the meaning given in section 10A;
"excluded amount" has the meaning given in section 10B;
"review adjudicator" in relation to an adjudication review application,
means the adjudicator appointed in accordance with this Act to
determine the application;
"review determination" means the determination made by a review
adjudicator under section 28I in respect of an adjudication review
application;
"variation" in relation to a construction contract, means a change in
the scope of the construction work to be carried out, or the related
goods and services to be supplied, under the contract.';
(b) in the definition of "designated trust account" omit "adjudicated";
(c) for the definition of "progress payment", substitute—
s. 5
' "progress payment" means a payment to which a person is entitled
under section 9, and includes (without affecting that
entitlement)—
(a) the final payment for—
(i) construction work carried out under a construction contract; or
(ii) related goods and services supplied under the contract; or
(b) a single or one-off payment for—
(i) construction work carried out under a construction contract; or
(ii) related goods and services supplied under the contract; or
(c) a payment that is based on an
event or date (known in the building and construction industry as a
"milestone payment");
Note: The amount of a progress
payment is calculated in accordance with sections 10, 10A, 10B and 11.';
(d) in the definition of "scheduled amount", for "section 15." substitute "section 15;".
6. Definition of "construction work"
s. 6
In section 5(1) of the Principal Act—
(a) in paragraphs (c), (e)(iv) and
(f), for "or structure" substitute ", structure or works";
(b) in paragraph (d), for "and structures" substitute ", structures or works".
7. Definition of "related goods and services"
After section 6(2) of the Principal Act insert—
"(3) In this Act, a reference to
related goods and services includes a reference to related goods or
services.".
8. Application of Act
For section 7(2)(b) of the Principal Act substitute—
"(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 carrying out of domestic
building work (within the meaning of that Act), other than a contract
where the building owner is in the business of building residences and
the contract is entered into in the course of, or in connection with,
that business; or
(ba) a construction contract for
the carrying out of any work of a kind referred to in section 6 of the
Domestic Building Contracts Act 1995 relating to a residence other
than—
(i) a contract where the person
for whom the work is, or is to be, carried out is a person who is in
the business of building residences and the contract is entered into in
the course of, or in connection with, that business; or
(ii) a contract where the work
carried out, or to be carried out, under the contract is, or is part of
or is incidental to work to be carried out under another construction
contract; or".
9. Rights to progress payments
s. 9
In section 9(2) of the Principal Act—
(a) in paragraph (a)—
(i)
for "work" substitute "a specific item of
construction work";
(ii) for "related goods and
services" substitute "a specific item of related goods and services";
(b) in paragraph (b)—
(i) before "if the contract" insert "subject to paragraphs (c) and (d),";
(ii) for "supplied under the
contract." substitute "supplied under the contract;
or";
(c) after paragraph (b) insert—
'(c) in the case of a single or
one-off payment, if the contract makes no express provision with
respect to the matter, the date immediately following the day
that—
(i) construction work was last carried out under the contract; or
s. 9
(ii) related goods and services were last supplied under the contract; or
(d) in the case of a final
payment, if the contract makes no express provision with respect to the
matter, the date immediately following—
(i) the expiry of any period
provided in the contract for the rectification of defects or omissions
in the construction work carried out under the contract or in related
goods and services supplied under the contract, unless sub-paragraph
(ii) applies; or
(ii) the issue under the contract
of a certificate specifying the final amount payable under the contract
"a final certificate"; or
(iii) if neither sub-paragraph (i) nor sub-paragraph (ii) applies, the day that—
(A) construction work was last carried out under the contract; or
(B) related goods and services were last supplied under the contract.'.
10. Amount of progress payment
s. 10
(1) In section 10(b) of the Principal Act—
(a) in sub-paragraph (i), after "carried out" insert "or undertaken to be carried out";
(b) in sub-paragraph (ii), after "supplied" insert "or undertaken to be supplied".
(2) At the end of section 10 of the Principal Act insert—
"(2) Despite sub-section (1) and
anything to the contrary in the construction contract, a claimable
variation may be taken into account in calculating the amount of a
progress payment to which a person is entitled in respect of that
construction contract.
(3) Despite sub-section (1) and
anything to the contrary in the construction contract, an excluded
amount must not be taken into account in calculating the amount of a
progress payment to which a person is entitled in respect of that
construction contract.".
11. Insertion of sections 10A and 10B
After section 10 of the Principal Act insert—
'10A. Claimable variations
(1) This section sets out the
classes of variation to a construction contract (the "claimable
variations") that may be taken into account in calculating the amount
of a progress payment to which a person is entitled in respect of that
construction contract.
(2) The first class of variation
is a variation where the parties to the construction contract
agree—
(a) that work has been carried out or goods and services have been supplied; and
(b) as to the scope of the work
that has been carried out or the goods and services that have been
supplied; and
(c) that the doing of the work or
the supply of the goods and services constitutes a variation to the
contract; and
(d) that the person who has
undertaken to carry out the work or to supply the goods and services
under the contract is entitled to a progress payment that includes an
amount in respect of the variation; and
(e) as to the value of that amount or the method of valuing that amount; and
(f) as to the time for payment of that amount.
(3) The second class of variation is a variation where—
s. 11
(a) the work has been carried out
or the goods and services have been supplied under the construction
contract; and
(b) the person for whom the work
has been carried out or the goods and services supplied or a person
acting for that person under the construction contract requested or
directed the carrying out of the work or the supply of the goods and
services; and
(c) the parties to the
construction contract do not agree as to one or more of the
following—
(i) that the
doing of the work or the supply of goods and services constitutes a
variation to the contract;
(ii) that the person who has
undertaken to carry out the work or to supply the goods and services
under the construction contract is entitled to a progress payment that
includes an amount in respect of the work or the goods and services;
s. 11
(iii) the value of the amount payable in respect of the work or the goods and services;
(iv) the method of valuing the
amount payable in respect of the work or the goods and services;
(v) the time for payment of the
amount payable in respect of the work or the goods and services; and
(d) subject to sub-section (4),
the consideration under the construction contract at the time the
contract is entered into—
(i) is $5 000 000 or less; or
(ii) exceeds $5 000 000 but the
contract does not provide a method of resolving disputes under the
contract (including disputes referred to in paragraph (c)).
(4) If at any time the total
amount of claims under a construction contract for the second class of
variations exceeds 10% of the consideration under the construction
contract at the time the contract is entered into, sub-section (3)(d)
applies in relation to that construction contract as if any reference
to "$5 000 000" were a reference to "$150 000".
Example
A building contractor enters into a construction contract. The
consideration (contract sum) under the contract at the time the
contract is entered into is $3 million. The contract contains a
dispute resolution clause. The contractor undertakes work at the
direction of the other party. The contractor claims (the new
claim) that the work is a variation to the contract. The other
party does not agree that the work constitutes a variation to the
contract (disputed variation). The contractor has already made a
number of claims for disputed variations under the contract. The
new claim brings the total amount of claims for disputed variations
under the contract to $350 000. This amount exceeds 10% of the
contract sum. As the contract sum exceeds $150 000 and the
contract contains a dispute resolution clause, the disputed variation
in the new claim and all subsequent disputed variations under the
contract will not be claimable variations under this Act.
10B. Excluded amounts
s. 11
(1) This section sets out the
classes of amounts ("excluded amounts") that must not be taken into
account in calculating the amount of a progress payment to which a
person is entitled under a construction contract.
(2) The excluded amounts are—
(a) any amount that relates to a
variation of the construction contract that is not a claimable
variation;
(b) any amount (other than a
claimable variation) claimed under the construction contract for
compensation due to the happening of an event including any amount
relating to—
(i) latent conditions; and
(ii) time-related costs; and
(iii) changes in regulatory requirements;
(c) any amount claimed for damages
for breach of the construction contract or for any other claim for
damages arising under or in connection with the contract;
(d) any amount in relation to a
claim arising at law other than under the construction contract;
(e) any amount of a class
prescribed by the regulations as an excluded
amount.'.
12. Valuation of construction work and related goods and services
s. 12
In section 11 of the Principal Act—
(a) in sub-section (1)—
(i) after "carried out" insert "or undertaken to be carried out";
(ii) for paragraph (b)(iii) substitute—
"(iii) if there is a claimable
variation, any amount by which the contract price or other rate or
price set out in the contract, is to be adjusted as a result of the
variation; and";
(b) in sub-section (2)—
(i) after "supplied" insert "or undertaken to be supplied";
(ii) for paragraph (b)(iii) substitute—
"(iii) if there is a claimable
variation, any amount by which the contract price or other rate or
price set out in the contract, is to be adjusted as a result of the
variation; and".
13. Interest payable on overdue progress payment
At the end of section 12 of the Principal Act insert—
"(2) Interest is payable on the
unpaid amount of a progress payment that has become due and payable in
accordance with sub-section (1) at the greater of the following
rates—
(a) the rate for the time being
fixed under section 2 of the Penalty Interest Rates Act 1983; or
(b) the rate specified under the construction contract.".
14. Insertion of section 12A
s. 13
After section 12 of the Principal Act insert—
"12A. Lien in respect of unpaid progress payment
(1)
If a progress payment under a construction contract
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
construction work for the respondent.
(2) The claimant must serve a
notice in the prescribed form on the respondent before exercising a
lien under sub-section (1).
(3) A lien under sub-section (1)
is extinguished on the claimant receiving the progress payment.
(4) Any 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 sub-section (1).
(5) Sub-section
(1) does not confer on the claimant any right against a third party who
is the owner of the unfixed plant or materials.".
15. Effect of "pay when paid" provisions
s. 15
(1) In section 13(1) of the Principal Act—
(a) in paragraph (a), after "carried out" insert "or undertaken to be carried out";
(b) in paragraph (b), after "supplied" insert
"or undertaken to be supplied".
(2) In section 13(2) of the
Principal Act, in the definition of "pay when paid provision"—
(a) in paragraph (b), for "third party." substitute "third party; or";
(b) after paragraph (b) insert—
"(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.".
16. Substitution of section 14
s. 16
For section 14 of the Principal Act substitute—
'14. Payment claims
(1) A person referred to in
section 9(1) 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
construction contract concerned, is or may be liable to make the
payment.
(2) A payment claim—
(a) must be in the relevant prescribed form (if any); and
(b) must contain the prescribed information (if any); and
(c) must identify the construction
work or related goods and services to which the progress payment
relates; and
(d) must indicate the amount of
the progress payment that the claimant claims to be due (the "claimed
amount"); and
(e) must state that it is made under this Act.
(3) The claimed amount—
(a) may include any amount that
the respondent is liable to pay the claimant under section 29(4);
(b) must not include any excluded amount.
Note: Section 10(3) provides that a progress payment must not include an excluded amount.
(4) A payment claim in respect of
a progress payment (other than a payment claim in respect of a progress
payment that is a final, single or one-off payment) may be served only
within—
(a) the period determined by or in
accordance with the terms of the construction contract in respect of
the carrying out of the item of construction work or the supply of the
item of related goods and services to which the claim relates; or
(b) the period of 3 months after
the reference date referred to in section 9(2) that relates to that
progress payment—
s. 16
whichever is the later.
(5) A payment claim in respect of
a progress payment that is a final, single or one-off payment may be
served only within—
(a) the period determined by or in
accordance with the terms of the construction contract; or
(b) if no such period applies,
within 3 months after the reference date referred to in section 9(2)
that relates to that progress payment.
(6) Subject to sub-section (7),
once a payment claim for a claimed amount in respect of a final, single
or one-off payment has been served under this Act, no further payment
claim can be served under this Act in respect of the construction
contract to which the payment claim relates.
(7) Nothing in sub-section (6)
prevents a payment claim for a claimed amount in respect of a final,
single or one-off payment being served under this Act in respect of a
construction contract if—
(a) a claim for the payment of
that amount has been made in respect of that payment under the
contract; and
(b) that amount was not paid by
the due date under the contract for the payment to which the claim
relates.
(8) A claimant cannot serve more
than one payment claim in respect of each reference date under the
construction contract.
(9) However,
sub-section (8) does not prevent the claimant from including in a
payment claim an amount that has been the subject of a previous claim
if the amount has not been paid.'.
17. Payment schedules
s. 17
(1) In section 15(2)(b) of the Principal Act for '(the "scheduled amount").' substitute
'(the "scheduled amount"); and'.
(2) After section 15(2)(b) of the Principal Act insert—
"(c) must identify any amount of
the claim that the respondent alleges is an excluded amount; and
(d) must be in the relevant prescribed form (if any); and
(e) must contain the prescribed information (if any).".
18. Consequences of not paying claimant where no payment schedule
s. 18
(1) For section 16(2)(a) of the Principal Act substitute—
"(a) may—
(i) recover the unpaid portion of
the claimed amount from the respondent, as a debt due to the claimant,
in any court of competent jurisdiction; or
(ii) make an adjudication
application under section 18(1)(b) in relation to the payment claim;
and".
(2) For section 16(4) of the Principal Act substitute—
"(4) If the claimant commences
proceedings under sub-section (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—
(i) of the existence of the circumstances referred to in sub-section (1); and
(ii) that the claimed amount does not include any excluded amount; and
(b) the respondent is not, in those proceedings, entitled—
(i) to bring any cross-claim against the claimant; or
(ii) to raise any defence in relation to matters arising under the construction contract.".
19. Consequences of not paying claimant in accordance with payment schedule
s. 19
(1) For section 17(2)(a) of the Principal Act substitute—
"(a) may—
(i) recover the unpaid portion of
the scheduled amount from the respondent, as a debt due to the
claimant, in any court of competent jurisdiction; or
(ii) make an adjudication
application under section 18(1)(a)(ii) in relation to the payment
claim; and".
(2) For section 17(4) of the Principal Act substitute—
"(4) If the claimant commences
proceedings under sub-section (2)(a)(i) to recover the unpaid portion
of the scheduled 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 sub-section (1); and
(b) the respondent is not, in those proceedings, entitled—
(i) to bring any cross-claim against the claimant; or
(ii) to raise any defence in relation to matters arising under the construction contract.".
20. Adjudication applications
s. 20
(1) For sections 18(1) to 18(4) of the Principal Act substitute—
'(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 any 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 any part of the claimed amount by the due date for
payment of the amount.
(2) An
adjudication application to which sub-section (1)(b) applies cannot be
made unless—
(a) the claimant has notified the
respondent, within the period of 10 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 2
business days after receiving the claimant's notice.
(3) An adjudication application—
(a) must be in writing; and
(b) subject to sub-section (4),
must be made to an authorised nominating authority chosen by the
claimant; and
s. 20
(c) in the case of an application
under sub-section (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 sub-section (1)(a)(ii), must be made within 10 business days
after the due date for payment; and
(e) in the case of an application
under sub-section (1)(b), must be made within 5 business days after the
end of the 2 day period referred to in sub-section (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 the
application fee (if any) determined by the authorised nominating
authority; and
(h) may contain any submissions
relevant to the application that the claimant chooses to include.
(4) If the construction contract
to which the payment claim relates lists 3 or more authorised
nominating authorities, the application must be made to one of those
authorities chosen by the claimant.'.
(2) Section 18(6) of the Principal Act is repealed.
(3) In section 18(8) of the
Principal Act omit "chosen by agreement between the claimant and the
respondent or".
21. Adjudication responses
s. 21
(1) In section 21 of the Principal Act—
(a) in sub-section (1), for "The
respondent" substitute "Subject to sub-section (2A), the respondent";
(b) for sub-section (2)(c) substitute—
"(c) must include the name and
address of any relevant principal of the respondent and any other
person who the respondent knows has a financial or contractual interest
in the matters that are the subject of the adjudication application; and
(ca) must identify any amount of
the payment claim that the respondent alleges is an excluded amount;
and";
(2) After section 21(2) of the Principal Act insert—
"(2A) 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 15(4) or
18(2)(b).
(2B) If the adjudication response
includes any reasons for withholding payment that were not included in
the payment schedule, the adjudicator must serve a notice on the
claimant—
(a) setting out those reasons; and
(b) stating that the claimant has
2 business days after being served with the notice to lodge a response
to those reasons with the adjudicator.".
(3) In section 21(4) of the
Principal Act, after "entered into a contract" insert "(that is not a
construction contract exempted from this Act under section 7(2)(b) or
7(2)(ba))".
22. Adjudication procedures
s. 22
(1) For section 22(2) of the Principal Act substitute—
"(2) An adjudicator must serve a written notice—
(a) on any relevant principal and
any other person who is included in the adjudication response under
section 21(2)(c); and
(b) on any other person who the
adjudicator reasonably believes, on the basis of any submission
received from the claimant or the respondent, is a person who has a
financial or contractual interest in the matters that are the subject
of the adjudication application .".
(2) For section 22(4)(b) of the Principal Act substitute—
"(b) within any further time, not
exceeding 15 business days after that date, to which the claimant
agrees.".
(3) After section 22(4) of the Principal Act insert—
"(4A) A claimant must not unreasonably withhold their agreement under sub-section (4)(b).".
(4) After section 22(5) of the Principal Act insert—
"(5A) Any conference called under
sub-section (5)(c) is to be conducted informally and the parties are
not entitled to legal representation unless this is permitted by the
adjudicator.".
23. Adjudicator's determination
s. 23
(1) In section 23 of the Principal Act—
(a) in sub-section (1)(b), for "payable." substitute "payable; and";
(b) after sub-section (1)(b) insert—
"(c) the rate of interest payable on that amount in accordance with section 12(2).";
(c) in the note to sub-section (1), for "section 45(7)" substitute "section 45(8)";
(d) in sub-section (2) for "is to
consider the following matters only" substitute "must consider the
following matters and those matters only";
(e) in sub-section (2)(b), for
"the provisions" substitute "subject to this Act, the
provisions";
(f) in sub-section (2)(d), after "payment schedule" insert "(if any)".
(2) After section 23(2) of the Principal Act insert—
"(2A) In determining an
adjudication application, the adjudicator must not take into
account—
(a) any part of the claimed amount that is an excluded amount; or
(b) any other matter that is prohibited by this Act from being taken into account.
(2B) An adjudicator's determination is void—
(a) to the extent that it has been made in contravention of sub-section (2);
s. 23
(b) if it takes into account any
amount or matter referred to in sub-section (2A), to the extent that
the determination is based on that amount or
matter.".
(3) For sections 23(3) and 23(4) of the Principal Act substitute—
"(3) The adjudicator's determination must be in writing and must include—
(a) the reasons for the determination; and
(b) the basis on which any amount or date has been decided.
(4) If, in determining an
adjudication application, an adjudicator has, in accordance with
section 11, determined—
(a) the value of any construction work carried out under a construction contract; or
(b) the value of any 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 of 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.".
24. Section 23A inserted
s. 24
After section 23 of the Principal Act insert—
"23A. Adjudication determination to be given to parties and Building Commission
The authorised nominating authority to whom the adjudication
application was made must give a copy of the adjudication
determination—
(a) to the claimant and the respondent, as soon as practicable after it is made; and
(b) to the Building Commission within 5 business days after it is made.".
25. Correcting mistakes in determinations
After section 24(2) of the Principal Act insert—
"(3) If a correction is made to a
determination under this section, the authorised nominating authority
to whom the adjudication application was made must give a copy of the
corrected determination to the claimant and the respondent and the
Building Commission as soon as practicable after the correction is made.
(4) An adjudicator cannot make a
correction of a determination under this section if an application has
been made under Division 2A for a review of the determination.".
26. Repeal of sections 25 to 27
Sections 25 to 27 of the Principal Act are repealed.
27. Claimant may make new application if previous application refused or not determined
s. 27
In section 28(3) of the Principal Act, for "section 18(3)(b)" substitute "sections 18(3)(c), 18(3)(d) and 18(3)(e)".
28. New Divisions 2A and 2B inserted in Part 3
After section 28 of the Principal Act insert—
'Division 2A—Review of Adjudication
28A. Threshold for review
This Division applies in respect of an adjudication determination if the adjudicated amount exceeds the higher of—
(a) $100 000; or
(b) the amount prescribed for the purposes of this section.
28B. Application for review by respondent
(1) Subject to this section, a
respondent may apply for a review of an adjudication determination (an
"adjudication review").
(2) An application under this
section may only be made if the respondent provided a payment schedule
to the claimant within the time specified in section 15(4) or 18(2).
(3) An application under this
section may only be made on the ground that the adjudicated amount
included an excluded amount.
(4) An application under this
section may only be made if the respondent has identified that amount
as an excluded amount in the payment schedule or the adjudication
response.
(5) An application under this
section may only be made if the respondent has paid to the claimant the
adjudicated amount other than the amounts alleged to be excluded
amounts.
(6) An application under this
section may only be made if the respondent has paid the alleged
excluded amounts into a designated trust account.
28C. Application for review by claimant
s. 28
(1) Subject to this section, a
claimant may apply for a review of an adjudication determination (an
"adjudication review").
(2) An application under this
section may only be made on the ground that the adjudicator failed to
take into account a relevant amount in making an adjudication
determination because it was wrongly determined to be an excluded
amount.
28D. Procedure for making application
(1) An adjudication review
application must be made to the authorised nominating authority to
which the adjudication application was made.
(2) An adjudication review
application must be made within 5 business days after the respondent or
claimant (as the case requires) receives a copy of the adjudication
determination.
(3) An adjudication review application—
(a) must be in writing in the prescribed form (if any); and
(b) must contain the prescribed information (if any); and
(c) must be accompanied by the
application fee (if any) determined by the authorised nominating
authority.
(4) The
applicant must give a copy of the adjudication review application to
the other party to the adjudication review within one business day
after the application is made.
(5) The authorised nominating
authority must as soon as practicable after receiving an adjudication
review application give a copy of the application to—
(a) the adjudicator who made the
adjudication determination that is the subject of the adjudication
review; and
(b) the Building Commission.
28E. Right to make submissions
s. 28
A party to an adjudication review may make a submission to the
authorised nominating authority in response to the application for
review within 3 business days after being given a copy of the
adjudication review application.
28F. Designated trust account
(1) On paying money into a
designated trust account in accordance with section 28B, the respondent
must give the claimant notice of that payment together with particulars
identifying the account and the recognised financial institution with
which the account is kept.
(2) Subject to sub-section (3),
money held in a designated trust account (including any interest
accruing to that money) is 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;
(b) to the extent to which any of
the money remains in the account after the claimant's entitlements have
been fully satisfied, the money is to be paid to the respondent.
(3) If the respondent withdraws
the adjudication review application in accordance with section 28K, any
money held in a designated trust account (including any interest
accruing to that money) is to be paid to the claimant.
(4) Subject to sub-sections (2)
and (3), the regulations may make provision for or with respect to the
establishment and operation of designated trust accounts.
(5) In this section, "claimant's
entitlements", in relation to money held in a designated trust account,
means the amount (if any) to which the claimant becomes entitled under
a review determination.
28G. Appointment of review adjudicator
s. 28
(1) The authorised nominating
authority must, within 5 business days after receiving an application
for review, appoint a review adjudicator in accordance with this
section (the "review adjudicator") to conduct the review.
(2) A review adjudicator must be a
person who is eligible to be an adjudicator as referred to in section
19.
(3) The authorised nominating
authority may not appoint an adjudicator who has been involved directly
or indirectly with the adjudication determination that is the subject
of the adjudication review.
(4) The authorised nominating
authority must give each party to the review and the Building
Commission written notice of the appointment of a review adjudicator.
(5) The notice under sub-section (4) must include the date of the appointment.
28H. Adjudication review procedures
s. 28
(1) The adjudication review
commences upon acceptance by the review adjudicator of his or her
appointment as the review adjudicator.
(2) The authorised nominating
authority must provide the following information to the review
adjudicator as soon as practicable after the appointment of the review
adjudicator—
(a) a copy of the adjudication review application; and
(b) a copy of any submission made
by a party to the adjudication review in accordance with section 28E;
and
(c) a copy of the adjudication
determination that is the subject of the adjudication review; and
(d) a copy of the payment claim that relates to that adjudication determination; and
(e) a copy of each submission
considered by the adjudicator who made that adjudication determination;
and
(f) a copy of the payment schedule
(if any) considered by the adjudicator who made that adjudication
determination; and
(g) any other information that the
adjudicator who made the adjudication determination considered in
making that determination.
28I. Adjudication review determination
s. 28
(1) A review adjudicator is not to
determine an adjudication application until after the end of the period
within which any party to the adjudication review may make a submission
in accordance with section 28E.
(2) In determining an adjudication
review application, the review adjudicator must consider the following
matters and those matters only—
(a) the provisions of this Act and any regulations made under this Act; and
(b) the provisions of the construction contract from which the application arose; and
(c) the information provided by the authorised nominating authority under section 28H.
(3) In
determining an adjudication review application, the review adjudicator
must not take into account—
(a) any excluded amount; or
(b) any other matter that is prohibited by this Act from being taken into account.
(4) A review adjudicator's determination is void—
(a) to the extent that it has been made in contravention of sub-section (2); or
(b) if it takes into account any
amount or matter referred to in sub-section (3), to the extent that the
determination is based on that amount or matter.
(5) After conducting an adjudication review, a review adjudicator may—
(a) substitute a new adjudication
determination (the "review determination") for the determination that
is the subject of the adjudication review; or
(b) confirm the determination that is the subject of the adjudication review.
(6) In determining an adjudication review, the review adjudicator must—
(a) specify if the review
determination varies the adjudication determination and how it varies
the adjudication determination; and
(b) specify any amounts paid to
the claimant by the respondent in respect of the adjudication
determination; and
(c) determine any further amount that is to be paid by the respondent to the claimant; and
s. 28
(d) determine any amount that is to be repaid by the claimant to the respondent; and
(e) determine any interest payable
in accordance with section 12(2) on an amount referred to in paragraph
(c); and
(f) specify the date on which an amount under paragraph (c), (d) or (e) becomes payable.
(7) A review determination must be
in writing and set out the reasons for the review determination in that
determination.
(8) A review adjudicator who makes
a review determination may, if he or she thinks it appropriate, include
a statement in the review determination that in his or her opinion the
application for the adjudication review was not made in good faith.
(9) The date for payment referred
to in sub-section (6)(f) must be 5 business days after the respondent
or claimant (as the case requires) is given a copy of the review
determination.
(10) The review adjudicator must
complete the adjudication review and provide a copy of the review
determination to the authorised nominating authority that appointed him
or her—
s. 28
(a) within 5 business days after his or her appointment; or
(b) within any further time, not
exceeding 10 business days after that appointment, to which the
applicant for the adjudication review agrees.
(11) An applicant must not unreasonably withhold their agreement under sub-section (10)(b).
28J. Authorised nominating authority must notify persons of review determination
The authorised nominating authority must, as soon as practicable, provide a copy of the review determination to—
(a) each party to the adjudication review; and
(b) the adjudicator who made the
adjudication determination that is the subject of the adjudication
review; and
(c) the Building Commission.
28K. Withdrawal of adjudication review application
s. 28
An applicant may withdraw an adjudication review application at any
time before the review adjudicator has made a review determination
under section 28I by serving a notice of withdrawal on—
(a) the review adjudicator; and
(b) the authorised nominating authority that appointed the review adjudicator; and
(c) the other party to the adjudication review.
28L. Correcting mistakes in review determinations
Section 24 applies to review determinations as if a reference in that section—
(a) to an adjudicator were a reference to a review adjudicator; and
(b) to a determination made by an
adjudicator were a reference to a review
determination.
Division 2B—Payment and Recovery of Adjudicated Amounts
28M. Respondent required to pay adjudicated amount
s. 28
(1) Subject to sections 28B and
28N, 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.
(2) In this section "relevant date" means—
(a) the date that is 5 business
days after the date on which a copy of the adjudication determination
is given to the respondent under section 23A; or
(b) if the adjudicator determines a later date under section 23(1)(b), that later date.
28N. Payment after review determination
(1) If the respondent is required
by a review determination to pay an amount to the claimant, the
respondent must pay that amount on or before the date for that payment
determined by the review adjudicator under section 28I(6)(f).
(2) If the claimant is required by
a review determination to pay an amount to the respondent, the claimant
must pay that amount on or before the date for that payment determined
by the review adjudicator under section 28I(6)(f).
28O. Consequences of respondent not paying adjudicated amount
s. 28
(1) If the respondent fails to pay
the whole or any part of an adjudicated amount in accordance with
section 28M or 28N, the claimant may—
(a) request the authorised
nominating authority to whom the adjudication application or the
adjudication review application was made to provide an adjudication
certificate under section 28Q; and
(b) serve notice on the respondent of the claimant's intention—
(i) to suspend carrying out construction work under the construction contract; or
(ii) to suspend supplying related goods and services under the construction contract.
(2) A notice under sub-section
(1)(b) must state that it is made under section 28O(1) of this Act.
(3) A notice cannot be served
under sub-section (1) in respect of a failure to pay the whole or any
part of an adjudicated amount in accordance with section 28M until
after the end of the period allowed for making an adjudication review
application under section 28D.
(4) If the claimant has made an
adjudication review application in respect of any part of the
adjudicated amount, the claimant may not give a notice under
sub-section (1)(b) in respect of a failure to pay that adjudicated
amount in accordance with section 28M until that adjudication review is
completed.
(5) In this section "adjudicated
amount" includes any amount payable by the respondent under a review
determination.
28P. Consequences of claimant not paying adjudicated amount
s. 28
If the claimant fails to pay the
whole or part of the amount payable by the claimant under a review
determination in accordance with section 28N, the respondent may
request the authorised nominating authority to which the adjudication
review application was made to provide an adjudication certificate
under section 28Q.
28Q. Adjudication certificates
(1) An adjudication certificate
provided by an authorised nominating authority on a request under this
Division must state that it is made under this Act and specify the
following matters—
(a) the name of the person requesting the certificate;
(b) the name of the person who is liable to pay the adjudicated amount;
(c) the amount payable under section 28M or 28N;
(d) the date on which payment of
that amount was due to be paid to the person requesting the certificate.
(2) If any amount of interest that
is due and payable on the amount payable under section 28M or 28N is
not paid by the respondent, the person requesting the adjudication
certificate may request the authorised nominating authority to specify
the amount of interest payable in the adjudication certificate.
(3) If an amount of interest is
specified in the adjudication certificate to be paid by the respondent,
the amount is to be added to, and becomes part of, the adjudicated
amount.
(4) If the claimant has paid the
respondent's share of the adjudication fees in relation to the
adjudication or the adjudication review fees in relation to any
adjudication review (as the case requires) but has not been reimbursed
by the respondent for that amount (the "unpaid share"), the claimant
may request the authorised nominating authority to specify the unpaid
share in the adjudication certificate.
s. 28
(5) If the respondent has paid the
claimant's share of the adjudication review fees in relation to any
adjudication review but has not been reimbursed by the claimant for
that amount, the respondent may request the authorised nominating
authority to specify that share of the fees in the adjudication
certificate.
(6) If the unpaid share is
specified in the adjudication certificate it is to be added to, and
becomes part of, the adjudicated amount.
(7) In this section "adjudicated
amount" includes an amount payable by the respondent or the claimant
under a review determination.
28R. Proceedings to recover amount payable under section 28M or 28N
(1) If an authorised nominating
authority has provided an adjudication certificate to a person under
section 28Q, the person may recover as a debt due to that person, in
any court of competent jurisdiction, the unpaid portion of the amount
payable under section 28M or 28N.
(2) A proceeding referred to in
sub-section (1) cannot be brought unless the person provided with the
adjudication certificate files in the court—
(a) the adjudication certificate; and
(b) an affidavit by that person
stating that the whole or any part of the amount payable under section
28M or 28N has not been paid at the time the certificate is filed.
s. 28
(3) If the affidavit indicates
that part of the amount payable under section 28M or 28N has been paid,
judgment may be entered for the unpaid portion of that amount only.
(4) Judgment in favour of a person
is not to be entered under this section unless the court is satisfied
that the person liable to pay the amount payable under section 28M or
28N has failed to pay the whole or any part of that amount to that
first-mentioned person.
(5) If a person commences proceedings to have the judgment set aside, that person—
(a) subject to sub-section (6), is not, in those proceedings, entitled—
(i) to bring any cross-claim
against the person who brought the proceedings under sub-section (1); or
(ii) to raise any defence in
relation to matters arising under the construction contract; or
(iii) to challenge an adjudication determination or a review determination; and
s. 28
(b) is required to pay into the
court as security the unpaid portion of the amount payable under
section 28M or 28N pending the final determination of those proceedings.
(6) Sub-section (5)(a)(iii) does
not prevent a person from challenging an adjudication determination or
a review determination on the ground that the person making the
determination took into account a variation of the construction
contract that was not a claimable variation.
(7) A claimant may not bring
proceedings under this section to recover an adjudicated amount under
an adjudication determination if the claimant has made an adjudication
review application in respect of that determination and that review has
not been completed.
(8) Nothing in this section
affects the operation of any Act requiring the payment of interest in
respect of a judgment debt.'.
29. Claimant may suspend work
s. 29
(1) In section 29(1) of the Principal Act—
(a) for "2 business days" substitute "3 business days";
(b) for "or 27" substitute "or 28O".
(2) For section 29(2) of the Principal Act substitute—
"(2) The right conferred by sub-section (1) exists until—
(a) if the construction contract
provides for a period of at least 1 business day for a return to work
after the claimant receives payment from the respondent of an amount
referred to in section 16(1), 17(1), 28M or 28N, the end of that
period; or
(b) in any other case, the end of
the period of 3 business days immediately following the date on which
the claimant receives payment from the respondent of an amount referred
to in section 16(1), 17(1), 28M or 28N.".
(3) After section 29(3) of the Principal Act insert—
"(4) If the claimant, in
exercising the right to suspend the carrying out of construction work
or the supply of related goods and services, incurs any loss or
expenses as a result of the removal by the respondent from the contract
of any part of the work or supply, the respondent is liable to pay the
claimant the amount of any such loss or expenses.
(5) A claimant who suspends
construction work or the supply of related goods and services in
accordance with the right conferred by sub-section (1) is not liable
for any loss or damage suffered by the respondent, or by any person
claiming through the respondent, as a consequence of the claimant not
carrying out the work or not supplying those goods and services during
the period of suspension.".
30. New section 29A inserted
s. 30
In Division 4 of Part 3 of the Principal Act, before section 30 insert—
'29A. Definitions
In this Division—
"adjudicated amount" includes an amount payable under a review determination;
"adjudication determination" includes a review determination.'.
31. Recovery from principal
(1) For section 30(a) of the Principal Act substitute—
"(a) an adjudicator or a review
adjudicator has determined that an adjudicated amount or part of an
adjudicated amount is payable by a respondent to a claimant in respect
of a construction contract; and".
(2) For section 30(b) of the Principal Act substitute—
"(b) the respondent fails to pay
the whole or any part of the adjudicated amount to the claimant in
accordance with section 28M or 28N; and".
(3) In section 31(1) of the
Principal Act, for "construction contract" substitute "contract".
(4) After section 31(2) of the Principal Act insert—
"(3) Sub-section (1) does not
apply to allow the claimant to obtain payment from a person who has
engaged the respondent to carry out construction work or to supply
goods and services under a construction contract exempted from this Act
under section 7(2)(b) or 7(2)(ba).".
32. Substitution of Division heading
s. 32
For the heading to Division 5 of Part 3 of the Principal Act substitute—
"Division 5—Authorised Nominating Authorities, Adjudicators and Review Adjudicators".
33. Insertion of sections 43A, 43B and 43C
After section 43 of the Principal Act insert—
'43A. Functions of an authorised nominating authority
The functions of an authorised nominating authority are—
(a) to nominate adjudicators for the purposes of this Act; and
(b) to receive and refer adjudication applications to adjudicators; and
(c) to receive adjudication review
applications and submissions in response to those applications and to
appoint review adjudicators; and
(d) to serve copies of
adjudication determinations, adjudication review applications and
review determinations on certain persons; and
(e) to provide information to review adjudicators; and
(f) to provide adjudication certificates; and
(g) to provide information to the Building Commission in accordance with this Division; and
(h) to generally carry out any
other function or duty given to an authority, or imposed on an
authority, by this Act.
43B. Authorised nominating authority to provide information
s. 33
(1) An authorised nominating
authority must provide the Building Commission with such
non-identifying information as may be reasonably requested by the
Commission in relation to the activities of the authority under this
Act.
(2) Information requested under sub-section (1) may include information regarding—
(a) the nomination of adjudicators
and appointment of review adjudicators; and
(b) the assessment of the eligibility of persons to be adjudicators; and
(c) the fees charged by the authorised nominating authority; and
(d) the fees charged by adjudicators.
(3) In this section "non-identifying information" means information—
(a) that does not identify any person or disclose their address or location; or
(b) from which any person's identity, address or location cannot reasonably be determined.
43C. Authorised nominating authority fees
(1) An authorised nominating
authority may charge a fee for any service provided by the authority in
connection with an adjudication application or an adjudication review
application made to the authority.
(2) In deciding on a fee under
sub-section (1), an authorised nominating authority must have regard to
the guidelines regarding such fees issued by the Minister under section
44.'.
34. Ministerial guidelines
s. 34
For section 44(1) of the Principal Act substitute—
"(1) The Minister may from time to time issue guidelines relating to—
(a) the giving, variation or withdrawal of authorities under this Division; and
(b) appropriate
fees that may be charged by an authorised nominating authority, an
adjudicator or a review adjudicator.".
35. Substitution of section 45
s. 35
For section 45 of the Principal Act substitute—
'45. Adjudicator's and review adjudicator's fees
(1) In this section—
"adjudicator" includes a review adjudicator;
"adjudication application" includes an adjudication review application.
(2) An adjudicator is entitled to
be paid for determining an adjudication application—
(a) the amount, by way of fees and
expenses, that is agreed between the adjudicator and the parties to the
adjudication; or
(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.
(3) The claimant and respondent
are jointly and severally liable to pay the adjudicator's fees and
expenses.
(4) As between themselves, the
claimant and respondent are each liable to contribute to the
adjudicator's fees and expenses in equal proportions or in such
proportions as the adjudicator may determine.
(5) An adjudicator is not entitled
to be paid any fees or expenses in connection with the determination 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 the claimant and respondent is resolved) within the time
allowed by section 22(4) or 28I(10) (as the case requires).
(6) Sub-section (5) 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.
(7) If a party refuses to pay his
or her required contribution to the amount of the fees and expenses
that are payable to the adjudicator, the other party may elect to pay
both parties' contribution to the adjudicator.
s. 35
(8) If a party elects under
sub-section (7) to pay the other party's contribution to the
adjudicator, the adjudicator, as the case requires—
(a) 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 the purposes of this Act; or
(b) must determine that that
amount is to be added to the amount payable (if any) by the other party
under the review determination and the total of those amounts is then
to be taken to be the amount payable by the other party under the
review determination for the purposes of this Act.'.
36. Liability of adjudicator
s. 36
In section 46 of the Principal Act, after "adjudicator" insert "(including a review adjudicator)".
37. Insertion of new Part 3A
After Part 3 of the Principal Act insert—
"PART 3A—ADMINISTRATION
47A. Functions of the Building Commission
The functions of the Building Commission under this Act are—
(a) to keep
under regular review the administration and effectiveness of this Act
and the regulations; and
(b) to keep a register of
authorised nominating authorities in accordance with section 47B; and
(c) to keep records of
adjudication determinations and review determinations in accordance
with section 47C; and
(d) to publish adjudication
determinations and review determinations in accordance with section
47C; and
(e) generally
to carry out any other function or duty given to it, or imposed on it,
by this Act.
47B. Register of authorised nominating authorities
(1) The Building Commission must
keep a register containing details of authorised nominating authorities
including the names of the principals and the contact details of those
authorities.
(2) The Building Commission must
make the register available for inspection without charge to any person
at the business address of the Building Commission during normal
business hours.
47C. Recording and publishing of determinations
(1) The Building Commission must
keep a record of any adjudication determinations or review
determinations that it receives.
(2) The Building Commission may
publish information in a determination received under section 23A or
28J if—
(a) the information does not
identify any person or body referred to in the determination or
disclose the address or location of that person or body; and
(b) the identity, address or
location of any person or body referred to in the determination cannot
reasonably be determined from the information.".
38. Substitution of sections 48 and 49
s. 38
For sections 48 and 49 of the Principal Act substitute—
"48. No contracting out
(1) The provisions of this Act
have effect despite any provision to the contrary in any contract.
(2) A provision of any 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.
49. Confidentiality
The Building Commission, the Commissioner (within the meaning of the
Building Act 1993) and any member of staff of the Building Commission
must not use or disclose any information received by the Building
Commission under this Act except to the extent necessary for the
performance of any functions or duties or the exercise of any powers of
the Building Commission under this Act.".
39. Service of notices
s. 39
In section 50(1) of the Principal Act—
(a) in paragraph (d), for "section." substitute "section; or";
(b) after paragraph (d) insert—
"(e) in any other manner specified in the relevant construction contract.".
40. Supreme Court—limitation of jurisdiction
At the end of section 51 of the Principal Act insert—
"(2) It is the intention of
section 28R to alter or vary section 85 of the Constitution Act 1975.".
41. Insertion of additional regulation-making powers
s. 41
For sections 52(1) and 52(2) of the Principal Act substitute—
"(1) The Governor in Council may make regulations for or with respect to—
(a) prescribing forms for any purpose of this Act;
(b) prescribing information to be provided under this Act;
(c) any other matter or thing
required 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—
(a) may provide in a specified
case or class of cases for the exemption of persons or things or a
class of persons or things from any of the provisions of this Act
whether unconditionally or on specified conditions and either wholly or
to such an extent as is specified; and
(b) may differ according to differences in time, place and circumstance.".
42. Substitution of section 53
For section 53 of the Principal Act substitute—
'53. Transitional
provision—Building and Construction Industry Security of Payment
(Amendment) Act 2006
This Act as amended by the Building and Construction Industry Security
of Payment (Amendment) Act 2006 ("the 2006 Act") does not apply to or
in respect of a payment claim for a progress payment to which a person
is entitled under a construction contract entered into before the
commencement of section 42 of the 2006 Act and any such payment claim
is to be dealt with in accordance with this Act as if the 2006 Act had
not been enacted.'.
43. Repeal of section 54
s. 43
Section 54 of the Principal Act is repealed.
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ENDNOTES
Endnotes