BUILDING INDUSTRY FAIRNESS (SECURITY OF PAYMENT) ACT 2017 - As at 10 November 2017

Queensland Numbered Acts

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BUILDING INDUSTRY FAIRNESS (SECURITY OF PAYMENT) ACT 2017 - As at 10 November 2017 - Act 43 of 2017

TABLE OF PROVISIONS

CHAPTER 1 - PRELIMINARY

PART 1 - INTRODUCTION

1. Short title
2. Commencement
3. The main purpose of Act

PART 2 - APPLICATION AND OPERATION OF ACT

4. Act binds all persons

PART 3 - INTERPRETATION

5. Definitions
6. Subcontracts, subcontractors and subcontracted work

CHAPTER 2 - PROJECT BANK ACCOUNTS

PART 1 - PRELIMINARY

7. Purpose of chapter
8. Definitions for chapter
9. What is a project bank account
10. Contract price
11. Who is a supplier
12. References to particular terms in this chapter

PART 2 - WHEN PROJECT BANK ACCOUNTS REQUIRED

Division 1 - Building contracts requiring project bank account

13. Building contracts requiring a project bank account
14. Particular government building contracts
15. Amendment of building contract

Division 2 - Building contracts not requiring project bank account

16. Building contracts for residential construction work
17. Building contracts for maintenance work
18. Government contracts tendered before commencement

Division 3 - Related entities

19. Who is a related entity
20. Application of chapter if parties to a subcontract are related entities
21. Notices about related entities

PART 3 - PROJECT BANK ACCOUNTS

Division 1 - Application

22. Application of part

Division 2 - Establishing project bank accounts

23. Head contractor must establish project bank account
24. Particular requirements for trust accounts
25. Name of trust account
26. Notice of trust account’s opening, closing or name change

Division 3 - Payments to project bank account

27. All payments from principal to be deposited in project bank account
28. Limited purposes for which money may be deposited into project bank account

Division 4 - Payments from project bank account

29. All payments to subcontractor beneficiaries to be paid from project bank account
30. Head contractor to cover shortfalls
31. Limited purposes for which money may be withdrawn from project bank account
32. Order of priority
33. Insufficient amounts available for payments

Division 5 - Retention amounts

34. Dealing with retention amounts

Division 6 - Payment disputes

35. When payment dispute occurs
36. Dealing with amounts if payment dispute occurs

Division 7 - Ending project bank account

37. Ending project bank account
38. Unauthorised ending of project bank account

Division 8 - Other

39. Amounts in project bank account unavailable for head contractor’s debts
40. No power of head contractor to invest
41. Power to employ agents
42. Power to delegate
43. Head contractor not entitled to payment for administration of project bank account or fees
44. Interest earned on amounts held in project bank account
45. Account to be kept by head contractor
46. Right of head contractor to apply to Supreme Court for directions
47. No assignment of entitlement by head contractor
48. Equity and court’s jurisdiction preserved

PART 4 - INFORMATION SHARING

49. Notice of project bank account before entering subcontracts
50. Principal to be given information about subcontracts
51. Principal and subcontractor to be given copy of payment instruction information
52. Principal to inform commissioner of discrepancies

PART 5 - EFFECT OF INSOLVENCY OR TERMINATION OF BUILDING CONTRACT

53. Definitions for part
54. Right of principal to step in as trustee
55. Information to be given to principal as trustee
56. Principal as trustee
57. Protection from civil liability

PART 6 - OTHER

58. Limited liability of principal
59. Application of Personal Property Securities Act 2009 (Cwlth)
60. Application of Trust Accounts Act 1973 and Trusts Act 1973

CHAPTER 3 - PROGRESS PAYMENTS

PART 1 - PRELIMINARY

Division 1 - Application and operation of chapter

61. Application of chapter
62. Effect of giving notice of claim for subcontractors’ charges
63. Act does not limit claimant’s other rights

Division 2 - Interpretation

64. Definitions for chapter
65. Meaning of construction work
66. Meaning of related goods and services
67. Meaning of reference date
68. Meaning of payment claim
69. Meaning of payment schedule

PART 2 - RIGHT TO PROGRESS PAYMENTS

70. Right to progress payments
71. Amount of progress payment
72. Valuation of construction work and related goods and services
73. Due date for payment
74. Effect of ‘pay when paid’ provisions

PART 3 - CLAIMING PROGRESS PAYMENTS

75. Making payment claim
76. Responding to payment claim
77. Consequences of failing to give payment schedule
78. Consequences of failing to pay claimant

PART 4 - ADJUDICATION OF DISPUTED PROGRESS PAYMENTS

79. Application for adjudication
80. When adjudicator ineligible to adjudicate
81. Appointment of adjudicator
82. Adjudication response
83. Time for making adjudication response
84. Adjudication procedures
85. Time for deciding adjudication application
86. Extending time for deciding adjudication application
87. Valuation of work etc. in later adjudication application
88. Adjudicator’s decision
89. Adjudicator may correct clerical mistakes etc.
90. Respondent required to pay adjudicated amount
91. Adjudication certificate
92. Consequences of not paying adjudicated amount
93. Filing of adjudication certificate as judgment debt
94. Claimant may make new application in certain circumstances
95. Adjudicator’s fees
96. Deciding fees payable by claimant and respondent
97. Withdrawing from adjudication

PART 5 - SUSPENDING WORK

98. Claimant’s right to suspend work

PART 6 - COURT PROCEEDINGS FOR DEBT RECOVERY

99. Notice required before starting particular proceedings
100. Proceedings to recover unpaid amount as debt

PART 7 - MISCELLANEOUS

101. Effect of pt 3 on civil proceedings
102. Service of notices

CHAPTER 4 - SUBCONTRACTORS’ CHARGES

PART 1 - PRELIMINARY

Division 1 - Application and operation of chapter

103. Application to particular domestic building work

Division 2 - Interpretation

104. Definitions
105. Meaning of work
106. References to amount payable under contract and to completion of work specified in subcontract
107. When work specified in contract completed

PART 2 - RIGHT TO SUBCONTRACTOR’S CHARGE

108. Contracts to which this part applies
109. Charges in favour of subcontractors
110. Limits on amount recoverable under subcontractor’s charge
111. Subcontractor’s charge valid although provision of the subcontract still to be complied with
112. Damages etc. not covered by subcontractor’s charge
113. All money paid in reduction of contract price generally subject to subcontractor’s charge
114. Assignments etc. of no effect against subcontractors’ charge
115. Insufficient money available for claims
116. Assignment and transmission of subcontractor’s charge
117. No subcontractor’s charges over money held in trust under a project bank account
118. Limit of 1 claim for work

PART 3 - INFORMATION TO BE GIVEN TO SUBCONTRACTOR

119. Request for information about building contract or security
120. Damages payable for failure to give information

PART 4 - CLAIMING SUBCONTRACTOR’S CHARGE

Division 1 - Preliminary

121. Application of part

Division 2 - Action by subcontractor

122. Notice of claim
123. Copy of notice of claim to contractor
124. Copy of notice of claim to the holder of a security
125. Withdrawing a notice of claim

Division 3 - Action by person given notice of claim

126. Person given notice of claim must retain money
127. Person given notice of claim must comply with request from security holder about s 130 or 131

Division 4 - Action by contractor given copy of notice of claim

128. Contractor given copy of notice of claim must respond

Division 5 - Payment of claim

129. Payment of amount claimed
130. Use of security for benefit of subcontractor if contractor accepts liability for all claims
131. Use of security for benefit of subcontractor if contractor does not accept liability for all claims
132. Authority of court for security
133. Particular subcontractor securities of no effect

PART 5 - ENFORCING SUBCONTRACTOR’S CHARGE

134. Recovering amount claimed
135. Enforcing subcontractor’s charge on behalf of other subcontractors
136. Proceedings for subcontractor’s charges
137. Claims of charge relating to retention amount not limited

PART 6 - PROTECTION AGAINST SUBCONTRACTOR’S CHARGE

138. When person prejudicially affected by a claim
139. Application to court by person prejudicially affected
140. Vexatious claims

PART 7 - MISCELLANEOUS

141. Effect of payment made under order of the court
142. Court jurisdiction
143. Consolidation of actions
144. Power to proceed in absence of person against whom proceedings brought
145. Costs
146. Appeal
147. Qualified persons
148. Right to recover debt generally preserved

CHAPTER 5 - ADMINISTRATION

PART 1 - REGISTRY AND STAFF

Division 1 - Registry

149. Registry

Division 2 - Registrar

150. Adjudication registrar
151. Disqualification from appointment
152. Term of appointment
153. Conditions of appointment
154. Registrar’s functions and powers
155. Registrar’s policy
156. Delegation by registrar

Division 3 - Other matters

157. Annual report on operation of chapter and registry

PART 2 - ADJUDICATORS

Division 1 - Preliminary

158. Definitions for chapter

Division 2 - Registration of adjudicators

159. Application for registration as adjudicator
160. Consideration of application
161. Suitability of person to be registered
162. Request for further information
163. Decision on application for registration
164. Term of registration
165. Conditions of registration
166. Form of certificate of registration

Division 3 - Renewals of registrations of adjudicators

167. Applications for renewal of registration
168. Request for further information
169. Registration taken to be in force while application for renewal is considered

Division 4 - Suspension or cancellation of registrations of adjudicators

170. Grounds for suspension or cancellation
171. Show cause notice
172. Representations about show cause notices
173. Ending show cause process without further action
174. Suspension or cancellation
175. Immediate suspension of registration
176. Effect of suspension or cancellation of registration of adjudicator

Division 5 - Internal review of registration decisions

177. Applying to registrar for internal review
178. Internal review of original decision
179. Stay of operation of original decision

Division 6 - External review of registration decisions

180. Applying to QCAT for external review

Division 7 - Code of conduct

181. Code of conduct for adjudicators

Division 8 - Other provisions about adjudicators

182. Adjudicator must comply with registration conditions
183. Surrender of registration
184. Replacement of certificate of registration
185. Adjudicator must give information to registrar
186. Protection from liability for adjudicators
187. False or misleading statements
188. False or misleading documents

CHAPTER 6 - LEGAL PROCEEDINGS

PART 1 - OFFENCES

190. Who may prosecute
191. Enforcement action to comply with prescribed guidelines
192. Payment of penalties and fines

PART 2 - EVIDENCE

193. Application of part
194. Appointments and authority
195. Evidentiary aids
196. Proof of signature unnecessary

PART 3 - CIVIL LIABILITY FOR OFFICIALS

197. Protection from liability

CHAPTER 7 - MISCELLANEOUS

198. Approved forms
199. Delegations
200. Contracting out prohibited
200A. Review of Act
200B. Act does not prevent early payment
201. Regulation-making power

CHAPTER 8 - TRANSITIONAL AND REPEAL

PART 1 - REPEAL

202. Acts repealed

PART 2 - TRANSITIONAL PROVISIONS FOR THE REPEALED BUILDING AND CONSTRUCTION INDUSTRY PAYMENTS ACT 2004

203. Definitions for part
204. Continuation of existing appointments and employment
205. Unfinished matters for existing payment claims to be dealt with under the repealed Act
206. References to repealed Act

PART 3 - TRANSITIONAL PROVISIONS FOR THE REPEALED SUBCONTRACTORS’ CHARGES ACT 1974

207. Definitions for part
208. Preservation of existing entitlement to subcontractors’ charges
209. Unfinished matters for existing subcontractors’ charges to be dealt with under the repealed Act
210. References to repealed Act

PART 4 - OTHER TRANSITIONAL PROVISION

211. Transitional regulation-making power

CHAPTER 9 - AMENDMENT OF THIS AND OTHER ACTS

PART 1 - AMENDMENT OF THIS ACT

Division 1 - Amendment commencing on assent

212. Act amended
213. Amendment of long title

Division 2 - Extended application of project bank accounts to private and local government building contracts

214. Replacement of s 14 (Particular government building contracts)
215. Replacement of s 16 (Building contracts for residential construction work)
216. Insertion of new s 18A
217. Insertion of new ch 2, pt 2, div 4

Division 3 - Extended application of project bank accounts to all subcontractors

218. Amendment of s 8 (Definitions for chapter)
219. Amendment of s 9 (What is a project bank account)
220. Amendment of s 10 (Contract price)
221. Omission of s 11 (Who is a supplier)
222. Amendment of s 14 (Particular private and government building contracts)
223. Amendment of s 18 (Government contracts tendered before commencement)
224. Amendment of s 18A (Private or local government contracts entered into before particular date)
225. Amendment of s 20 (Application of chapter if parties to a subcontract are related entities)
226. Amendment of s 21 (Notices about related entities)
227. Amendment of ch 2, pt 3 (Project bank accounts)
228. Amendment of ch 2, pt 4 (Information sharing)
229. Amendment of ch 2, pt 5 (Effect of insolvency or termination of building contract)
230. Amendment of ch 2, pt 6 (Other)
231. Amendment of sch 2 (Dictionary)

PART 2 - AMENDMENT OF BUILDING ACT 1975

232. Act amended
233. Amendment of s 3 (Simplified outline of main provisions of Act)
234. Amendment of ch 8, pt 7, hdg (Complaints, investigations and disciplinary proceedings relating to pool safety inspectors)
235. Omission of ch 8, pt 7, div 2, hdg (Investigations)
236. Omission of ss 246CP–246CX
237. Amendment of sch 2 (Dictionary)

PART 3 - AMENDMENT OF PLUMBING AND DRAINAGE ACT 2002

238. Act amended
239. Amendment of pt 2, div 6, hdg (Investigators appointed by QBCC commissioner)
240. Omission of pt 2, div 6, sdivs 1 to 3
241. Omission of pt 2, div 6, sdiv 3A, hdg (Audit programs and auditing licensees)
242. Amendment of s 33TA (Definitions for sdiv 3A)
243. Omission of pt 2, div 6, sdiv 4, hdg (Miscellaneous provisions)
244. Omission of ss 33U and 33V
245. Amendment of s 128RA (False or misleading statements)
246. Amendment of s 128S (False or misleading documents)
247. Amendment of s 128T (Obstruction of investigators or inspectors)
248. Amendment of s 128U (Impersonation of investigator or inspector)
249. Amendment of schedule (Dictionary)

PART 4 - AMENDMENT OF QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION ACT 1991

250. Act amended
251. Amendment of s 3 (Objects of Act)
252. Insertion of new s 4AA
253. Amendment of s 11 (Functions)
254. Amendment of s 12 (Appointment)
255. Omission of pt 2, div 2, sdiv 3 (Board’s policies)
256. Amendment of s 20A (Meetings)
257. Amendment of s 31 (Entitlement to contractor’s licence)
258. Amendment of s 35 (Imposition of conditions etc. on grant of licence)
259. Amendment of s 37A (Commission to advise licensee before licence due for renewal)
260. Amendment of s 42 (Unlawful carrying out of building work)
261. Amendment of s 42B (Carrying out building work without a nominee)
262. Amendment of s 42C (Unlawful carrying out of fire protection work)
263. Amendment of s 42D (Licensed contractor must not engage or direct unauthorised person for fire protection work)
264. Insertion of new s 42E
265. Amendment of pt 3, div 9A, hdg (Monitoring continued satisfaction of financial requirements and compliance with parts 4 and 5, and schedule 1B)
266. Amendment of s 50A (Approved audit program)
267. Amendment of s 50C (Supply of financial records and other documents under approved audit program or for other reason)
268. Amendment of s 53A (Satisfying financial requirements at renewal)
269. Amendment of s 53B (False or misleading documents about financial requirements)
270. Amendment of s 54 (Advertisements)
271. Amendment of s 56AC (Excluded individuals and excluded companies)
274. Insertion of new s 67AZAA
275. Amendment of s 67A (Definitions for pt 4A)
276. Insertion of new ss 67GA and 67GB
277. Amendment of s 67N (Limits for retention amounts and securities for building contracts after practical completion)
278. Insertion of new ss 67NA–67NC
279. Omission of s 71G (Definition for pt 6)
280. Amendment of s 71J (Requests for rectification of building work or remediation of consequential damage)
281. Amendment of s 72 (Power to require rectification of building work and remediation of consequential damage)
282. Amendment of s 72A (Powers and limitations of directions to rectify or remedy)
282A. Insertion of new s 72AA
283. Insertion of new s 72B
284. Amendment of s 73 (Offence to fail to comply with direction to rectify or remedy)
285. Amendment of s 74B (Proper grounds for taking disciplinary action against a licensee and former licensees)
286. Amendment of s 86 (Reviewable decisions)
287. Amendment of s 92 (Tribunal may conduct public examination)
288. Amendment of s 103B (Developer register)
289. Amendment of pt 9, hdg (Inspectors)
290. Amendment of s 103G (Definitions for part)
291. Amendment of s 103H (References to exercise of powers)
292. Amendment of pt 9, division 2, hdg (Appointment of inspectors)
293. Replacement of s 104 (Appointment of inspectors)
294. Amendment of pt 9, divs 3–8
295. Insertion of new pt 9, div 7A
296. Amendment of s 107A (Obstructing inspectors)
297. Insertion of s 107B
298. Amendment of s 108A (Documents that must be kept for 7 years)
299. Amendment of s 108B (False or misleading statement)
300. Amendment of s 108C (False or misleading document)
301. Amendment of s 111 (Prosecutions for offences)
301A. Insertion of new s 111AAA
302. Amendment of s 111B (Liability of executive officer—particular offences committed by company)
303. Insertion of new s 115B
303A. Insertion of new s 115C
304. Amendment of s 116 (Regulations)
305. Insertion of new sch 1, pt 15
306. Amendment of sch 1B, s 45 (Relationship with other Acts)
307. Amendment of sch 2 (Dictionary)

PART 5 - CONSEQUENTIAL AMENDMENTS

308. Acts amended
SCHEDULE 1
SCHEDULE 2

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