In brief - Latest tranche of changes to the Building Industry Fairness (Security of Payment) Act 2017 released
The latest tranche of changes to the BIF Act has been introduced under the Plumbing and Drainage Act 2018 (Qld) (PD Act), which received royal assent on 11 September 2018. The PD Act introduces important amendments and clarifications to the BIF Act, including the timeframe for responding to a payment claim, the use of project bank accounts (PBAs), and the obligations of head contractors and principals in relation to PBAs.
Responding to payment claims
One of the most notable changes to the BIF Act made under the PD Act is in relation to the timeframe for responding to a payment claim through a payment schedule. Currently under the BIF Act, a payment schedule is required to be provided within 25 business days of receiving a payment claim. The PD Act will reduce this time to just 15 business days.
Supplier or subcontractor?
A subcontractor is a beneficiary of a PBA under the BIF Act. This means that they have a number of rights in relation to how and when they are paid. It is therefore important to establish whether a person is a supplier or a subcontractor for the purposes of the BIF Act.
Implications of changes to the Building Industry Fairness (Security of Payment) Act on head contractors
The PD Act makes a number of changes to head contractors' obligations. This includes amendments to existing provisions addressing how retention amounts are to be dealt with, what a head contractor must do if there are insufficient amounts available to pay subcontractors, and how amounts are to be dealt with when a payment dispute occurs.
Head contractors will also be subject to new obligations introduced by the PD Act. These relate to when a head contractor is liable to pay an amount to a subcontractor, identifying amounts held in a disputed funds trust account and withdrawing or returning these amounts, and when a head contractor may withdraw retention amounts held in a retention trust account.
Timeframe for notifying a principal about a trust account
When a head contractor opens a trust account as part of the PBA regime, changes the name of a trust account, or closes a trust account, they are required to notify the principal. Previously under the BIF Act, a head contractor is required to provide written notice of this information to the principal within ten business days. However, the PD Act reduces this time to just five business days.
Severe penalties for non-compliance of some new provisions
Some of the new provisions carry severe penalties for failure to comply, including imprisonment.
For instance, there are two new provisions under the PD Act which regulate how and when a head contractor may withdraw from a retention trust account, and a disputed funds trust account. Where a head contractor withdraws an amount for a purpose that is not set out in the BIF Act, they could face a maximum penalty of 300 penalty units or two years' imprisonment.
Given the severe penalties for non-compliance, it is important that head contractors familiarise themselves with these provisions.
Implications of changes to the Building Industry Fairness (Security of Payment) Act on principals
Principals' obligations will also be affected by the PD Act. For instance, the circumstances in which a principal must deposit an amount into the general trust account will be extended to include situations involving:
- the principal's liability to make the payment to the head contractor under the building contract
- an adjudication of a disputed progress payment
- a final and binding dispute resolution process, or
- a court order
Applying to the Supreme Court for directions in relation to project bank accounts
Principals will now have the ability to apply to the Supreme Court for directions in relation to the operation of a PBA, an avenue which was previously only available to head contractors. However, this will only apply where the principal has taken on the role of trustee of a PBA.
Commencement date for amendments
A number of these amendments have already come into effect. These include the circumstances in which a principal must deposit an amount into a general trust account, when a head contractor must pay a subcontractor, the test for whether a person is a supplier or a subcontractor, and the timeframe for a head contractor to notify a principal of changes to a PBA.
For the provisions which have not yet come into force, including the timeframe for responding to payment claims, the Department of Housing and Public Works has indicated that they are anticipated to commence on 17 December 2018. Thereafter, we can expect to see further changes to the BIF Act being gradually rolled out.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.