page loader

Category: Recoup Insights

Queensland Security Of Payment – BIF Act

BIF Act QLD Amendments Came Into Force 17 December 2018

The Queensland Security Of Payment Act legislation is known as the Building Industry Fairness (Security Of Payment) Act 2017 (BIF Act)

Changes to the Security of Payments Act In Queensland and How it Affects You

Changes to the Building Industry Fairness (Security Of Payment) Act 2017 commenced on 17 December 2018.

The amendments seek to make changes in the way claimants file their adjudications and for respondents to have more time in filing their response.

What the amendments mean to you as a claimant: Adjudication applications will no longer be lodged to ANA: the Authorised Nominating Authorities (ANA) will be abolished. The Queensland Building and Construction Commission (QBCC) will be established as the adjudication registry.

QBCC will be responsible for: referring claimants to adjudicators and making appointments based on skills, knowledge, and experience appropriate to the case at hand; and monitoring the performance of adjudicators to ensure qualification

Shorter claim time: payment claims can no longer be made 6 months after construction work has been finished

Three week’s response time: claimants will have three weeks to respond to any matter raised by the respondent

What amendments mean to respondents: Longer timeframes for “complex” claims: respondents are now given 15 business days to respond to claims exceeding $750,000 or claims that have high time-related costs; standard claims are given the same response time of 10 business days

Business days close to Holidays not included: the definition of “business day” will no longer include the three business days leading up to Christmas and the 10 business days after New Year’s Day

More opportunity to raise reasons for withholding payment: under current law, respondents are not allowed to raise reasons for not not providing payment if such reasons are not included in the payment schedule. But with the amendment, respondents are now allowed to raise additional information and reasons even if those are not cited in the payment schedule. These new changes are set to take effect on 17 December 2018. The aim of such change is to strike a better balance between respondents and claimants. Previously, the BCIPA has been criticized for favoring claimants. Moreover, ANA adjudicators have been criticized for favoring claimants and causing losses to respondents. While the pending amendments may favor construction firms and head contractors, claimants may face new challenges. If you are a sub-contractor, supplier, or consultant, you may encounter some difficulties when the laws take effect in September. The pending amendments are set to affect all players in the construction industry. If you want to recover the debt owed to you, best consult our experts at Recoup.

For more information about the Queensland Security Of Payment Act known as the Building Industry Fairness (Security Of Payment) Act 2017 (BIF Act), please click BCIPA Information.

Security Of Payments Act Help - Contact Recoup Contractor Debt Recovery

Retention Money

Good News For Building & Construction Subcontractors

Solution Announced For Getting Retention Money Back

Security Of Payments Act Minister Matthew Mason-Cox

Minister for Fair Trading Matthew Mason-Cox, NSW Minister for Fair Trading has announced that A new trust-fund scheme will be created to ensure construction companies that collapse are prevented from keeping money that is owed to subcontractors after they complete a job.

The initiative is in response to an inquiry the state government commissioned in response to the RECOUP Contractor Debt Recovery push for fairness and justice for subcontractors in 2012 to look at the causes of insolvency in the $40-billion building industry. Bruce Collins QC chaired the inquiry.

Today, Matthew Mason-Cox, will announce the new retention trust scheme – the first of its kind in Australia – which will require construction companies to hold retention money in a trust fund to protect payments for subcontractors. Head contractors who fail to comply with new requirements will face fines of up to $22,000.

Up to 5 per cent of the cost of a contract is generally retained by the contractor until the subcontractor has completed a job and corrected any defects. The new trust scheme will ensure that contractors who become insolvent cannot use the money for their own purposes.

“This will end the widespread industry practice of using subcontractors’ trust money for the head contractor’s working capital purposes. At the end of the day, this money belongs to subcontractors and it’s about time it was protected as such.”

Read more here.

Big End Of Town Supportive : St Hilliers Building & Construction Boss Tim Casey:

St Hilliers managing director Tim Casey says that while scheme will protect smaller subcontractors it could lift building costs.

St Hilliers managing director Tim Casey, said the government had been talking about the scheme for 12 months.

Mr Casey, who managed to trade out of the collapse, said the new scheme could hike building costs. “(But) it’s probably not a bad thing for the industry, it protects the smaller subcontractors who don’t have the facilities to put up bank guarantees.”

Tim Casey is one of the more ethical players in the building & construction industry, however there is bound to be some resistance from the ones with little or no conscience.

Tim Casey

Adjudication Definition

The definition of “Adjudication” is: to settle judicially.

Adjudication of a building and construction dispute can occur when an Adjudicator is empowered by the relevant state legislation to determine the outcome of such an application only if he has jurisdiction under that legislation.

Continue reading “Adjudication Definition” →

Security Of Payments Act NSW Supporting Statement By Head Contractor

Security Of Payment Act NSW Supporting Statement

Building & Construction Industry Security Of Payment Act 1999 legislation changes that came into force for all building and construction contracts entered into on or after 21 April 2014 now require a head contractor to include a Supporting Statement with all Payment Claims served under the Security Of Payments Act NSW.

It is important to note that the 21 April 2014 changes to the Security Of Payments Act NSW also include penalties for non compliance.

Section 13 of the Building & Construction Industry Security Of Payment Act 1999 legislation now contains the following obligations for head contractors:

A head contractor must not serve a payment claim on the principal unless the claim is accompanied by a supporting statement that indicates that it relates to that payment claim.

Maximum penalty: 200 penalty units.

(8) A head contractor must not serve a payment claim on the principal accompanied by a supporting statement knowing that the statement is false or misleading in a material particular in the particular circumstances.

Maximum penalty: 200 penalty units or 3 months imprisonment, or both.

(9) In this section:

“supporting statement” means a statement that is in the form prescribed by the regulations and (without limitation) that includes a declaration to the effect that all subcontractors, if any, have been paid all amounts that have become due and payable in relation to the construction work concerned.

How you fill out this form is critical!

You can find a sample of the Supporting Statement By Head Contractor Form here

You must serve a copy of the Supporting Statement By Head Contractor Form with your Payment Claim.

You should obtain expert advice on what information you should include and what information you should not include in the Supporting Statement By Head Contractor Form.

The purpose of the obligation on the Head Contractor under the Building & Construction Industry Security Of Payment Act 1999 legislation is to ensure that subcontractors get paid.

The catalyst for the changes to the Building & Construction Industry Security Of Payment Act 1999 legislation was the Reed Constructions Australia fiasco where the NSW Government departments, Roads & Maritime Services and Department Of Education paid Reed for works carried out by Reed’s subcontractors but but Reed didn’t pass on that payment to their subcontractors.

Now any head contractor that does not include a Supporting Statement with their Payment Claim, and remember the 21 April 2014 changes mean that all invoices for construction work and or related goods and services are now payment claims under the Building & Construction Industry Security Of Payment Act 1999 whether they are endorsed as such or not, or knowingly makes a false declaration may be subject to penalties as prescribed in the legislation, penalties that may include imprisonment.

Therefore, because potential exists for such harsh penalties, it is highly recommended that head contractors should seek expert advice before completing the Supporting Statement.

Call RECOUP Contractor Debt Recovery for expert assistance to prepare your Payment Claim and to ensure your Supporting Statement is filled out appropriately.

The Building & Construction Industry Security Of Payment Act 1999 legislation continues to provide the best means of debt recovery for contractors in any position in the contracting chain to resolve all types of payment disputes.

The Building & Construction Industry Security Of Payment Act 1999 legislation ensures contractors are able to obtain their full entitlement under their construction contract, which can be a very simple oral agreement, in a timely and inexpensive manner. Claiming under the Building & Construction Industry Security Of Payment Act 1999 begins with serving a payment claim and ends with applying for adjudication, it can be a very quick and easy 2 step process. If a respondent does not serve a payment schedule in time in response to the payment claim a second notice may be required and even if necessary this addition step may only add an addition week to the process. The process usually takes about six weeks from beginning to end.

Adjudication under the Building & Construction Industry Security Of Payment Act 1999 is a process based on a written application, a written submission and supporting evidence, No “court appearances” are required. RECOUP Contractor Debt Recovery manages the whole adjudication process for their clients. This means RECOUP Contractor Debt Recovery’s clients can get on with their day to day business with minimal distraction.

For contractors working for the head contractor don’t forget New South Wales is the only state where a contractor, at the time of applying for adjudication, can serve a payment withholding request on a principal to enable a principal in due course to pay the contractor directly. This process uses the Contractors Debts Act 1997 to follow through from the Security Of Payments Act NSW where the process begins. RECOUP Contractor Debt Recovery are experts on this process.

Start Your Claim Here

Building & Construction Industry Payments Act 2004 QLD Bill Update

Building Construction Industry Payments Act 2004 QLD Bill Update

In May 2014, the Building and Construction Industry Payments Act 2004 QLD (BCIPA) Bill 2014 (Bill) was introduced to the Queensland Parliament. Changes based on the Bill expected to commence 1 September 2014 did not occur. Subsequently an amendment to the Building and Construction Industry Payments Act 2004 QLD (BCIPA) Bill (Amended Bill) was passed on 11 September 2014 following the delivery of a Parliamentary Committee Report (Report) on 1 September 2014.

Resulting from the 18 recommendations suggested by the Report, a limited number of the recommendations were subsequently incorporated into the Amended BCIPA Bill. The limited adoption of all 18 recommendations despite general support of its principles was due to the consideration that their objectives could be achieved in other ways such as through amending regulations instead of amending the Bill.

Below is a brief summary of several key changes included with the Amended Bill (Building and Construction Industry Payments Act 2004 QLD).

  • For matters relating the registration and appointment of adjudicators, the Queensland Building and Construction Commission (QBCC) replaces the current system with the claimant selecting an authorised nominating authority (ANA) and then the ANA referring the matter to an adjudicator. Despite the Report recommending the Amended Bill to include high-level guiding principles regarding the appointment process of adjudicators, the Government has proposed that a policy approved by the QBCC Board and published on the QBCC’s website by completed instead. Included within the Amended Bill is an allowance for the QBCC Board to make a policy governing the administration of Building and Construction Industry Payments Act (BCIPA).
  • The duration for which a payment claim can be made submitted has been halved from 12 months to six months from the date of the completion of construction work or the supply of related goods and services supplied (unless a longer period is stipulated within the contract).
  • A dual model regime will commence replacing a generalised scheme to allow for extended time frames in order to settle complex payment claims. The Bill defines that a ‘complex payment claim’ is a claim with an amount in excess of $750,000.00 (or a greater amount prescribed by regulation), a latent condition or a time-related cost. However in the Amended Bill reference to the latest and time-related cost is removed resulting in a change to the definition of a ‘complex payment claim’. A ‘complex payment claim’ is now defined pursuant to the Amended Bill as a claim that is assessed solely on monetary value e.g. $750,000 and above as prescribed by regulations excluding GST.
  • Changes have also been applied to the Christmas shut down period. The extension as a result of changes to the definition of business days will now exclude the period between 22 December and 10 January over the industry shut down period.
  • Respondents can now include new reasons for withholding payment in their adjudication responses that were not previously included in the payment schedule. A right of reply for the new reasons is provided to the claimants for up to 15 business days as well as applying via the adjudicator for an additional 15 days if the nature of the new reasoning is complex.
  • Transitional arrangements are included within the Amended BCIPA Bill to deal with construction contracts entered into before commencement. Such transitional arrangements are a combination of the unamended BCIPA and changes to the Bill included by the passing of the Amended Bill. Construction contracts signed before commencement will maintain the existing security of progress payment provisions under BCIPA and progress payments. Under the Amended Bill, the changes to the functions of the ANA’s such as the appointment of adjudicators have being transferred to the registrar will apply to the construction contract. Any application that is submitted before the official commencement of the Amended Bill be handled under the previous BCIPA processes as the Amended Bill is currently awaiting Royal Assent for commencement.

The Amended Bill, Building and Construction Industry Payments Act 2004 QLD (BCIPA) Bill (Amended Bill) upon receiving the Royal Assent will be an important development in the construction industry. It is highly advised that both claimants and respondents familiarise themselves with the new procedures and amendments to understand the implication of such changes. The drafting of new construction contracts should also take into account the changes to BCIPA for both Claimants and Respondents seeking resolution to building and construction payment Disputes.

BCIPA QLD Adjudication Applications will remain the most efficient means of Debt Recovery and Debt Collection for Queensland Building & Construction Contractors.

contact

Search BCIPA Adjudication Decisions

Search BCIPA Adjudication Decisions

Building & Construction Industry Payments Act 2004 QLD BCIPA Adjudication Decisions can be searched.
Search BCIPA QLD Adjudication Decisions through the BCIPA QLD link below:

Decision Search BCIPA QLD

 

 

Call RECOUP Contractor Debt Recovery on 1300 732 687 for further assistance as required.

contact

RECOUP Contractor Debt Recovery

RECOUP Contractor Debt Recovery Are Your Best Option For Preparing & Running BCIPA QLD Payment Claims & Adjudication Applications

We are Queensland’s No #1 BCIPA QLD Specialist – GET STARTED HERE…
Now at over $100 million in recovered Contractor Payments – RECOUP Contractor Debt Recovery are Trusted by more Industry Groups and Trade Associations throughout Queensland than any other debt collection agency.

RECOUP Contractor Debt Recovery are Building & Construction Industry Payments Act 2004 Experts & Debt Recovery and Debt Collection Specialists for Building and Construction Contractors in Queensland. RECOUP aims to keep all stakeholders in each state up to date with changes and developments in the BCIPA QLD legislation that impacts claiming payments for Queensland building and construction work.

BCIPA QLD Decision Search is a valuable tool for learning how to develop successful contract admin and claiming techniques.

 

RECOUP provides information and assistance regarding the following legislation:

Queensland: “Building and Construction Industry Payments Act 2004″

Security Of Payments Act NSW Due Date For Payment

Security Of Payments Act NSW Due Date For Payment

The 21 April 2014 changes to the Building & Construction Industry Security Of Payments Act 1999, The “Security Of Payments Act NSW” legislation for building and construction work carried out, and or related goods and services provided, for a construction project in New South Wales, included changes to the “Payment Due Date”.

For Contractor claims the maximum time allowed for the Respondent to pay a payment claim is now 15 business days from the date of service of the payment claim.

For Subcontractor claims the maximum time allowed for the Respondent to pay a payment claim is now 30 business days from the date of service of the payment claim.

The above time frames are now the “default” of the Act and the maximum times allowed under the Act. These time frames have replaced the previous “10 business days default”.

If the above time frames are too long and are not acceptable, RECOUP Contractor Debt Recovery recommends a clear agreement be formed between parties prior to commencing work,  and recorded in writing, and verified with signatures of authorised officers, stating what the date for making claims is each month (known in the Act as the “Reference Date”) and how many business days the “Payment Due Date” is to be after the service of the Payment Claim.

It is very important that claimants understand the importance of calculation days correctly when claiming, when serving second notices, when serving notices to suspend work, and when applying for adjudication.

If an error is made in respect of calculating days claims may be rendered invalid and either require a claimant to begin the whole process over again on a new and available reference date, or even worse still it may mean that a claimant loses their entitlement under the Act altogether.

For assistance in correctly calculating Security Of Payments Act NSW due date for payment and all debt collection issues relating to building & construction work call RECOUP Contractor Debt Recovery on 1300 732 687

contact

BCIPA QLD Changes 21 December 2014

BCIPA QLD Changed 21 December 2014

Claimants beware; BCIPA just got a lot better for Respondents.

Significant changes to the Building & Construction Payments Act 2004 commenced on 21 December 2014.

The changes to BCIPA QLD include:

  • The abolition of Authorised Nominating Authorities in Queensland.
  • Less time for Claimants to serve claims.
  • More time for Respondents to reply.
  • More opportunity for Respondents to provide reasons for non-payment.

And that is on top of caselaw that says reference dates don arise every month for six months after a claimant last carried out work.

Continue reading “BCIPA QLD Changes 21 December 2014” →

Security Of Payments Act NSW Changes

Security Of Payments Act NSW Changes Commence 21 April 2014

The Security Of Payments Act NSW changes  are:

  • introduction of maximum payment terms for progress payments for all invoices served for building and construction work and or related goods or services under the Security Of Payments Act NSW
  • requirement that payment claims made under the Security Of Payments Act NSW by a head contractor include a supporting statement declaring that all subcontractors have been paid what is due and payable up to and including at the time of the claim
  • removal of the requirement that a payment claim must state that it is being made under the Security Of Payments Act NSW – all invoices will be deemed claims made under the Security Of Payments Act NSW.

What this means for Claimants:

  • Danger of serving invalid payment claims
  • Maximum time to wait for payment

What this means for Respondents

  • All invoices received need to be treated as payment claims made under the Act
  • Must pay all invoices on time
  • Serious penalties for falsifying subcontractor statement

Subscribe to our Newsletter and keep up to date as case law develops and determines the true implications of these changes

contact

RECOUP Contractor Debt Recovery

RECOUP Contractor Debt Recovery Are Your Best Option For Preparing & Running Security Of Payments Act NSW Payment Claims & Adjudication Applications

We are the No #1 Security of Payments Act NSW Specialist – GET STARTED HERE…
Now at more than $100 million in recovered Contractor Payments – RECOUP Contractor Debt Recovery are Trusted by more Industry Groups and Trade Associations throughout New South Wales than any other debt collection agency.

RECOUP are Security Of Payments Act NSW Experts & Debt Recovery and Debt Collection Specialists for New South Wales Building and Construction Contractors. RECOUP aims to keep all stakeholders in each state up to date with changes and developments in the Security Of Payments Act NSW legislation that impact claiming payments for building and construction work.

RECOUP provides information and assistance regarding the following legislation:

New South Wales: Building and Construction Industry Security of Payment Act 1999

New South Wales: Contractors Debts Act 1997

Dangers Of Fighting A Creditors Statutory Demand For Payment

Dangers Of Fighting A Creditors Statutory Demand For Payment

If you have received a Creditors Statutory Demand For Payment you have 21 days to pay the debt.

If you ignore a Creditors Statutory Demand For Payment your company may be placed into liquidation.

If you apply to the Supreme Court to have the Creditors Statutory Demand For Payment set aside and lose you must pay the debt, the claimants legal costs and court fees within 7 days or your company may be placed into liquidation.

If the creditor is determined to press his claim your costs to have the Creditors Statutory Demand For Payment set aside will mount very quickly;

  • cost to prepare application: $3k – $5k
  • court filing fee:$2k
  • preliminary appearances by your counsel and cost of instructing solicitors: $5k – $7k
  • preparation, settling, filing affidavits: $5k – $15k
  • subpoenas: $5k – $10k
  • Court hearing fee: $5k

And you aren’t even in court to have your application to set aside heard yet…..

  • appearances by your counsel and cost of instructing solicitors at the hearing: $10k – $15k
  • if you lose you will have to pay the creditors legal costs: $20k – $40k on top of the debt, the court fees and your own legal expenses

If you win you may then have to sue the creditor to recover your costs, at which time he may then counter sue you – the outcome; a costly, protracted legal battle.

The only winners then are the lawyers, the barristers, the senior / queens counsel etc etc….

In these situations it is rare that there is not a debt that is genuinely owed,  as a debtor, whether you like it or not, you have to carefully consider the commercial wisdom of attempting to settle the matter within the 21 days before you start shelling out tens of thousands of dollars on legal expenses or even commencing proceedings that may not turn out how you expect.

On each side there will be a set of legal teams telling each party there are no guarantees but that they have a chance….. whilst they have their hand in your pocket for some serious cash……. but it is you who have to live with the cost and the risk.

1300 RECOUP Contractors Debt Recovery Contact Us For Security Of Payments Act Help