On 1 and 2 October 2014 Chris Lenz, a registered adjudicator, attended a compulsory two-day training course for registered adjudicators to become familiar with the amendments to the Building and Construction Industry Payments Act 2004 (“BCIPA”) which were passed in Parliament on 11 September 2014. The amended BCIPA is awaiting assent by the Governor.
For those of you who are claimants, you need to appreciate that the new BCIPA differentiates between “simple claims” and “complex claims”. “Complex claims” are any claim over $750,000 (excluding GST). There is a reduction in the limit for the time within which a payment claim must be made after the last construction work was carried out, and there is a difference in the timing between a progress claim and the final claim. The timing for the delivery of the payment schedule for simple claims has not changed.
In the event of a complex claim being lodged by a claimant, the respondent has a different time frame within which to lodge a payment schedule, depending on when the payment claim has been served after the reference date to which the payment claim relates. If a payment claim is made less than 90 days after its reference date, the payment schedule must be served within 15 business days of service, and it is greater than 90 days, then the payment schedule can be served within 30 business days of service. As you can appreciate, this is a significant change to the current BCIPA, and is an attempt to get claimants to claim early, rather than banking up a claim, in order to facilitate cash flow.
There are also extended times for the service of adjudication responses for complex claims. In addition, a respondent is entitled to raise new reasons, in an adjudication response, which were not raised in the payment schedule, and a claimant may have a right of reply. A respondent can also ask the adjudicator for an extended time of up to an additional 15 business days to provide an adjudication response.
There are also other changes, and perhaps the one that should be singled out is the amendment that a claimant cannot go directly to Court for summary judgement of its payment claim in the event that it does not receive a payment schedule within the time limit. Under the old BCIPA this was an attractive option to claimants, and it was only in cases of a claimant wanting to go to adjudication that they were required to invite the respondent to provide another payment schedule. The amendments now require the claimant to issue a section 20A(2) notice to the respondent requesting a payment schedule, even if they wish to go to Court. There is an expectation that this will increase the number of adjudications.
Should you have any queries in relation to the BCIPA amendments, please contact us on (07) 3220 0299.