The Building and Construction Industry Payments Act 2004 (BCIPA) provides a legal framework for the time and cost effective recovery of payments owed for construction work or the supply of related goods or services under a construction contract in Queensland.
Construction work and the supply of related goods or services can include, but is not limited to:
- Construction work;
- Preparatory works;
- Fabrication of materials;
- Provision of labour;
- Architectural, design, surveying or quantity surveying services relating to construction work; and
- Hire of plant and equipment
When can I make a payment BCIPA claim?
A BCIPA Claim can be made with respect to the building work carried out prior to the reference date as specified in the terms of the building contract or otherwise as determined by BCIPA, usually being on the last day of the month in which the works were carried out or the goods or services were supplied.
What should I do if I am served with a BCIPA Payment Claim?
A party served with a payment claim has ten business days from the date of service to provide the claimant with a BCIPA Payment Schedule.
The payment schedule must both:
- Identify the payment claim to which it relates; and
- State the amount of the payment, if any, that the party proposes to make.
Where the amount of a payment claim is to be disputed, a payment schedule must be served within the time permitted under BCIPA. A failure to do so may result in the party served with the payment claim becoming liable for whole claimed amount in BCIPA decisions.
What are the relevant BCIPA time frames?
Refer to our BCIPA flow chart here for a summary of the time frame.
What is adjudication
Adjudication is a less formal legal process whereby a respondent’s payment schedule is assessed by an adjudicator in light of the claimant’s payment claim. This is done by way of an adjudication application.
In deciding the adjudication application, an adjudicator will determine:
- the amount of the progress payment, if any, to be paid by the respondent to the claimant (the adjudicated amount); and
- the date on which any amount became or becomes payable; and
- the rate of interest payable on any amount.
When determining the above, the adjudicator is limited in the material that may be considered to the matters set out in section 26(2) of the BCIPA.
What if the Respondent does not serve a payment schedule or pay an adjudicated amount?
Where a party fails to serve a payment schedule in response to a payment claim, the claimant may either:
- apply directly to the Court for judgment against the respondent for the claimed amount; or
- proceed with an adjudication application.
Where a claimant decides to proceed directly to Court for judgment, the provisions of BCIPA prevent the respondent from raising any counterclaim against the claimant or any defence in relation to matters arising under the construction contract.
Alternatively, where a respondent is adjudicated to be liable for an adjudicated amount and fails to pay that amount by the date stipulated in the adjudication, then the claimant can request a certificate from the adjudicator. This adjudication certificate may then be filed as a judgment for a debt and may be enforced in a court of competent jurisdiction.
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