BUILDING AND CONSTRUCTION INDUSTRY PAYMENTS ACT 2004 Reprinted as in force on 1

December 2009 Reprint No. 2A

TABLE OF PROVISIONS

Contents

Part 1--Preliminary

Division 1--Introduction

1. Short title

2. Commencement

Division 2--Application and operation of Act

3. Application of Act

4. Effect of giving notice of claim of charge under Subcontractors'

Charges Act 1974

5. Act does not limit claimant's other rights

6. Act binds all persons

Division 3--Object of Act

7. Object of Act

8. How object is to be achieved

Division 4--Interpretation

9. Definitions

10. Meaning of construction work

11. Meaning of related goods and services

Part 2--Rights to progress payments

12. Rights to progress payments

13. Amount of progress payment

14. Valuation of construction work and related goods and services

15. Due date for payment

16. Effect of pay when paid provisions

Part 3--Procedure for recovering progress payments

Division 1--Payment claims and payment schedules

17. Payment claims

18. Payment schedules

19. Consequences of not paying claimant if no payment schedule

20. Consequences of not paying claimant under payment schedule

Division 2--Adjudication of disputes

21. Adjudication application

22. When person may be an adjudicator

23. Appointment of adjudicator

24. Adjudication responses

25. Adjudication procedures

26. Adjudicator's decision

27. Valuation of work etc. in later adjudication application

28. Adjudicator may correct clerical mistakes etc.

29. Respondent required to pay adjudicated amount

30. Consequences of not paying claimant adjudicated amount

31. Filing of adjudication certificate as judgement debt

32. Claimant may make new application in certain circumstances

Division 3--Claimant's right to suspend construction work

33. Claimant may suspend work

Division 4--General

34. Authorised nominating authority's fees

35. Adjudicator's fees

Part 4--Administration

Division 1--Establishing registry and related matters

36. Registry established

37. Appointment of registrar and staff of registry

38. Registrar's functions and powers

39. Delegation by registrar

40. Acting registrar

41. Annual report on operation of Act and registry

Division 2--Registration of authorised nominating authorities

42. Application for registration

43. What the application must state

44. Consideration of application for registration

45. Criteria for granting application for registration

46. Suitability of person to be registered

47. Inquiries into application for registration

48. Decision on application for registration

49. Failure to decide application for registration

50. Term of registration

51. Conditions of registration

52. Registration required to perform functions of authorised

nominating authority

53. Authorised nominating authority must ensure adjudicators are

registered

54. Authorised nominating authority must comply with registration

conditions

55. Form of certificate of registration

Division 3--Registration of adjudicators

56. Application for registration

57. What the application must state

58. Consideration of application for registration

59. Criteria for granting application for registration

60. Suitability of person to be registered

61. Inquiries into application for registration

62. Decision on application for registration

63. Failure to decide application for registration

64. Term of registration

65. Conditions of registration

66. Registration required to perform functions of adjudicator

67. Adjudicator must comply with registration conditions

68. Form of certificate of registration

Division 4--Renewals of registrations of authorised nominating authorities

and adjudicators

69. Definitions for div 4

70. Applications for renewal of registration

71. Inquiries into application for renewal of registration

72. Registration taken to be in force while application for renewal is

considered

Division 5--Amendment of registrations of authorised nominating

authorities and adjudicators

73. Definitions for div 5

74. Application for amendment of registration

75. Inquiries into application for amendment

Division 6--Suspension or cancellation of registrations of authorised

nominating authorities and adjudicators

76. Definitions for div 6

77. Grounds for suspension or cancellation

78. Show cause notice

79. Representations about show cause notices

80. Ending show cause process without further action

81. Suspension or cancellation

82. Immediate suspension of registration

83. Return of cancelled or suspended registration to registrar

84. Effect of suspension or cancellation of registration of authorised

nominating authority or adjudicator

85. Issue of adjudication certificate by registrar

Division 7--Other provisions about registrations of authorised nominating

authorities and adjudicators

86. Definitions for div 7

87. Surrender of registration

88. Application for replacement of certificate of registration

89. Decision about application for replacement of certificate of

registration

90. False or misleading statements

91. False or misleading documents

Part 5--Review of decisions

Division 1--Internal review of decisions

92. Review process starts with internal review

93. Application for review to be made to the registrar

94. Applying for review

95. Review decision

96. Stay of operation of decision

Division 2--External review of decisions

97. Who may apply to tribunal for an external review

Part 6--Miscellaneous

99. No contracting out

100. Effect of pt 3 on civil proceedings

101. Adjudicator must give copy of decision to authorised nominating

authority

102. Authorised nominating authority must give information to registrar

103. Service of notices

104. Proof of signature unnecessary

105. Evidentiary aids

106. Protection from liability

107. Protection from liability for adjudicators and authorised

nominating authorities

108. Summary offences

109. Allegations of false or misleading information or document

110. Approved forms

111. Regulation-making power

Part 7--Transitional

112. Transitional provision for adjudication qualification

SCHEDULE 2 -- DICTIONARY

Endnotes

- LONG TITLE

An Act to imply terms in construction contracts, to provide for adjudication of

payment disputes under construction contracts, and for other purposes

1 Short title

This Act may be cited as the Building and Construction Industry Payments Act

2004 .

2 Commencement

This Act commences on a day to be fixed by proclamation.

3 Application of Act

(1) Subject to this section, this Act applies to construction contracts entered

into after the commencement of parts 2 and 3--

(a) whether written or oral, or partly written and partly oral; and

(b) whether expressed to be governed by the law of Queensland or a

jurisdiction other than Queensland.

(2) This Act does not apply to--

(a) a construction contract to the extent that it forms part of a

loan agreement, a contract of guarantee or a contract of insurance

under which a recognised financial institution undertakes--

(i) to lend an amount or to repay an amount lent; or

(ii) to guarantee payment of an amount owing or repayment

of an amount lent; or

(iii) to provide an indemnity relating to construction work

carried out, or related goods and services supplied, under

the construction contract; or

(b) a construction contract for the carrying out of domestic building

work if a resident owner is a party to the contract, to the extent

the contract relates to a building or part of a building where the

resident owner resides or intends to reside; or

consideration payable for construction work carried out under the

contract, or for related goods and services supplied under the

contract, is to be calculated other than by reference to the value of

the work carried out or the value of the goods and services supplied.

(3) This Act does not apply to a construction contract to the extent it

contains--

(a) provisions under which a party undertakes to carry out

construction work, or supply related goods and services in relation

to construction work, as an employee of the party for whom the work

is to be carried out or the related goods and services are to be

supplied; or

(b) provisions under which a party undertakes to carry out

construction work, or to supply related goods and services in

relation to construction work, as a condition of a loan agreement

with a recognised financial institution; or

(i) to lend an amount or to repay an amount lent; or

(ii) to guarantee payment of an amount owing or repayment

of an amount lent; or

(iii) to provide an indemnity relating to construction work

carried out, or related goods and services supplied, under

the construction contract.

(4) This Act does not apply to a construction contract to the extent it deals

with construction work carried out outside Queensland or related goods and

services supplied for construction work carried out outside Queensland.

(5) In this section--

resident owner, in relation to a construction contract for carrying out

domestic building work, means a resident owner under the Domestic Building

Contracts Act 2000, schedule 2, but does not include a person--

(a) who holds, or should hold, an owner-builder permit under the

Queensland Building Services Authority Act 1991 relating to the work;

(b) who is a building contractor within the meaning of the Queensland

Building Services Authority Act 1991.

4 Effect of giving notice of claim of charge under Subcontractors' Charges Act

1974

(1) This section applies if a person gives a notice of claim of charge under

the Subcontractors' Charges Act 1974 in relation to construction work or

related goods and services the subject of a construction contract.

(2) Proceedings or other action may not be started or continued by the person

under part 3 in relation to all or part of the construction work or related

goods and services.

(3) Without limiting subsection (2), subsection (4) applies if the person has

served a payment claim relating to all or part of the construction work or

related goods and services on a respondent before the notice of claim of charge

is given.

(4) For subsection (3)--

(a) the respondent is not required to pay an amount to the person

under section 18(5) in relation to the claim; and

(b) amounts may not be recovered by the person under section 19(2)(a)

(i) or 20(2)(a)(i) in relation to the claim; and

claim and the application has not been decided by an adjudicator

before the notice of the claim of charge is given, the person is

taken to have withdrawn the application; and

(d) if the person made an adjudication application in relation to the

claim and the application has been decided by an adjudicator before

the notice of the claim of charge was given--

(i) the respondent to the application is not required to

pay the adjudicated amount under section 29; and

(ii) an authorised nominating authority must not give the

person an adjudication certificate under section 30

relating to the adjudication; and

(iii) any adjudication certificate provided in relation to

the adjudication can not be enforced by the person under

section 31as a judgement of a court; and

(e) the person may not suspend, or continue to suspend, carrying out

all or part of the construction work or the supply of the related

goods and services under section 33.

(5) This section does not affect the operation of section 34 or 35 and an

adjudication application taken to have been withdrawn by the person under

subsection (4)(c) is taken to have been withdrawn for the purpose of section 35

(4).

(6) This section does not stop the person serving under this Act a payment

claim in relation to all or part of the construction work or related goods and

services and taking other action under this Act in relation to that claim, if

the notice of claim of charge in so far as it relates to the construction work

or related goods and services, or part, is withdrawn.

5 Act does not limit claimant's other rights

A claimant's entitlements and remedies under this Act do not limit--

(a) another entitlement a claimant may have under a construction

contract; or

(b) any remedy a claimant may have for recovering the other

entitlement.

6 Act binds all persons

This Act binds all persons, including the State, and, as far as the legislative

power of the Parliament permits, the Commonwealth and the other States.

7 Object of Act

The object of this Act is to ensure that a person is entitled to receive, and

is able to recover, progress payments if the person--

(a) undertakes to carry out construction work under a construction

contract; or

(b) undertakes to supply related goods and services under a

construction contract.

8 How object is to be achieved

The object is to be achieved by--

(a) granting an entitlement to progress payments whether or not the

relevant contract makes provision for progress payments; and

(b) establishing a procedure that involves--

(i) the making of a payment claim by the person claiming

payment; and

(ii) the provision of a payment schedule by the person by

whom the payment is payable; and

(iii) the referral of a disputed claim, or a claim that is

not paid, to an adjudicator for decision; and

(iv) the payment of the progress payment decided by the

adjudicator.

9 Definitions

The dictionary in schedule 2 defines particular words used in this Act.

10 Meaning of construction work

(1) Construction work means any of the following work--

(a) the construction, alteration, repair, restoration, maintenance,

extension, demolition or dismantling of buildings or structures,

whether permanent or not, forming, or to form, part of land;

(b) the construction, alteration, repair, restoration, maintenance,

extension, demolition or dismantling of any works forming, or to

form, part of land, including walls, roadworks, powerlines,

telecommunication apparatus, aircraft runways, docks and harbours,

railways, inland waterways, pipelines, reservoirs, water mains,

wells, sewers, industrial plant and installations for land drainage

or coast protection;

forming, or to form, part of land, including heating, lighting,

airconditioning, ventilation, power supply, drainage, sanitation,

water supply, fire protection, security and communications systems;

(d) the external or internal cleaning of buildings, structures and

works, so far as it is carried out in the course of their

construction, alteration, repair, restoration, maintenance or

extension;

(e) any operation that forms an integral part of, or is preparatory

to or is for completing, work of the kind referred to in paragraph

(a), (b) or (c), including--

(i) site clearance, earthmoving, excavation, tunnelling and

boring; and

(ii) the laying of foundations; and

(iii) the erection, maintenance or dismantling of

scaffolding; and

(iv) the prefabrication of components to form part of any

building, structure or works, whether carried out on-site

or off-site; and

(v) site restoration, landscaping and the provision of

roadways and other access works;

(f) the painting or decorating of the internal or external surfaces

of any building, structure or works;

(g) carrying out the testing of soils and road making materials

during the construction and maintenance of roads;

(h) any other work of a kind prescribed under a regulation for this

subsection.

(2) To remove doubt, it is declared that construction work includes building

work within the meaning of the Queensland Building Services Authority Act 1991.

(3) Despite subsections (1) and (2), construction work does not include any of

the following work--

(a) the drilling for, or extraction of, oil or natural gas;

(b) the extraction, whether by underground or surface working, of

minerals, including tunnelling or boring, or constructing underground

works, for that purpose.

11 Meaning of related goods and services

(1) Related goods and services, in relation to construction work, means any of

the following--

(a) goods of the following kind--

(i) materials and components to form part of any building,

structure or work arising from construction work;

(ii) plant or materials (whether supplied by sale, hire or

otherwise) for use in connection with the carrying out of

construction work;

(b) services of the following kind--

(i) the provision of labour to carry out construction work;

(ii) architectural, design, surveying or quantity surveying

services relating to construction work;

(iii) building, engineering, interior or exterior

decoration or landscape advisory services relating to

construction work;

(iv) soil testing services relating to construction work;

prescribed under a regulation for this subsection.

(2) In this Act, a reference to related goods and services includes a reference

to related goods or services.

12 Rights to progress payments

From each reference date under a construction contract, a person is entitled to

a progress payment if the person has undertaken to carry out construction work,

or supply related goods and services, under the contract.

13 Amount of progress payment

The amount of a progress payment to which a person is entitled in relation to a

construction contract is--

(a) the amount calculated under the contract; or

(b) if the contract does not provide for the matter, the amount

calculated on the basis of the value of construction work carried out

or undertaken to be carried out, or related goods and services

supplied or undertaken to be supplied, by the person, under the

contract.

14 Valuation of construction work and related goods and services

(1) Construction work carried out or undertaken to be carried out under a

construction contract is to be valued--

(a) under the contract; or

(b) if the contract does not provide for the matter, having regard

to--

(i) the contract price for the work; and

(ii) any other rates or prices stated in the contract; and

(iii) any variation agreed to by the parties to the

contract by which the contract price, or any other rate or

price stated in the contract, is to be adjusted by a

specific amount; and

(iv) if any of the work is defective, the estimated cost of

rectifying the defect.

(2) Related goods and services supplied or undertaken to be supplied under a

construction contract are to be valued--

(a) under the terms of the contract; or

(b) if the contract does not provide for the matter, having regard

to--

(i) the contract price for the goods and services; and

(ii) any other rates or prices stated in the contract; and

(iii) any variation agreed to by the parties to the

contract by which the contract price, or any other rate or

price stated in the contract, is to be adjusted by a

specific amount; and

(iv) if any of the goods are defective, the estimated cost

of rectifying the defect.

(3) For subsection (2)(b), for materials and components that are to form part

of any building, structure or work arising from construction work, the only

materials and components to be included in the valuation are those that have

become or, on payment, will become the property of the party or other person

for whom construction work is being carried out.

15 Due date for payment

(1) A progress payment under a construction contract becomes payable--

(a) if the contract contains a provision about the matter that is not

void under section 16 or under the Queensland Building Services

Authority Act 1991, section 67U or 67W--on the day on which the

payment becomes payable under the provision; or

(b) if the contract does not contain a provision about the matter or

contains a provision that is void under section 16 or under the

Queensland Building Services Authority Act 1991, section 67U or 67W--

10 business days after a payment claim for the progress payment is

made under part 3.

(2) Subject to subsection (3), interest for a construction contract is payable

on the unpaid amount of a progress payment that has become payable at the

greater of the following rates--

(a) the rate prescribed under the Supreme Court Act 1995, section 48

(1) for debts under a judgement or order;

(b) the rate specified under the contract.

(3) For a construction contract to which Queensland Building Services Authority

Act 1991, section 67P applies because it is a building contract, interest is

payable at the penalty rate under that section.

16 Effect of pay when paid provisions

(1) A pay when paid provision of a construction contract has no effect in

relation to any payment for construction work carried out or undertaken to be

carried out, or related goods and services supplied or undertaken to be

supplied, under the construction contract.

(2) In this section--

an amount owing, in relation to a construction contract, means an amount owing

for construction work carried out or undertaken to be carried out, or related

goods and services supplied or undertaken to be supplied, under the

construction contract.

pay when paid provision, of a construction contract, means a provision of the

contract--

(a) that makes the liability of one party (the first party) to pay an

amount owing to another party (the second party) contingent on

payment to the first party by a further party (the third party) of

the whole or any part of that amount; or

(b) that makes the due date for payment of an amount owing by the

first party to the second party dependent on the date on which

payment of the whole or any part of that amount is made to the first

party by the third party; or

due date for payment of an amount owing, contingent or dependent on

the operation of another contract.

17 Payment claims

(1) A person mentioned in section 12 who is or who claims to be entitled to a

progress payment (the claimant) may serve a payment claim on the person who,

under the construction contract concerned, is or may be liable to make the

payment (the respondent).

(2) A payment claim--

(a) must identify the construction work or related goods and services

to which the progress payment relates; and

(b) must state the amount of the progress payment that the claimant

claims to be payable (the claimed amount); and

(3) The claimed amount may include any amount--

(a) that the respondent is liable to pay the claimant under section

33(3); or

(b) that is held under the construction contract by the respondent

and that the claimant claims is due for release.

(4) A payment claim may be served only within the later of--

(a) the period worked out under the construction contract; or

(b) the period of 12 months after the construction work to which the

claim relates was last carried out or the related goods and services

to which the claim relates were last supplied.

(5) A claimant can not serve more than 1 payment claim in relation to each

reference date under the construction contract.

(6) However, subsection (5) does not prevent the claimant from including in a

payment claim an amount that has been the subject of a previous claim.

18 Payment schedules

(1) A respondent served with a payment claim may reply to the claim by serving

a payment schedule on the claimant.

(2) A payment schedule--

(a) must identify the payment claim to which it relates; and

(b) must state the amount of the payment, if any, that the respondent

proposes to make (the scheduled amount).

(3) If the scheduled amount is less than the claimed amount, the schedule must

state why the scheduled amount is less and, if it is less because the

respondent is withholding payment for any reason, the respondent's reasons for

withholding payment.

(4) Subsection (5) applies if--

(a) a claimant serves a payment claim on a respondent; and

(b) the respondent does not serve a payment schedule on the claimant

within the earlier of--

(i) the time required by the relevant construction

contract; or

(ii) 10 business days after the payment claim is served.

(5) The respondent becomes liable to pay the claimed amount to the claimant on

the due date for the progress payment to which the payment claim relates.

19 Consequences of not paying claimant if no payment schedule

(1) This section applies if the respondent--

(a) becomes liable to pay the claimed amount to the claimant under

section 18 because the respondent failed to serve a payment schedule

on the claimant within the time allowed by the section; and

(b) fails to pay the whole or any part of the claimed amount on or

before the due date for the progress payment to which the payment

claim relates.

(2) The claimant--

(a) may--

(i) recover the unpaid portion of the claimed amount from

the respondent, as a debt owing to the claimant, in any

court of competent jurisdiction; or

(ii) make an adjudication application under section 21(1)

(b) in relation to the payment claim; and

(b) may serve notice on the respondent of the claimant's intention to

suspend, under section 33, carrying out construction work or

supplying related goods and services under the construction contract.

(3) A notice under subsection (2)(b) must state that it is made under this Act.

(4) If the claimant starts proceedings under subsection (2)(a)(i) to recover

the unpaid portion of the claimed amount from the respondent as a debt--

(a) judgement in favour of the claimant is not to be given by a court

unless the court is satisfied of the existence of the circumstances

referred to in subsection (1); and

(b) the respondent is not, in those proceedings, entitled--

(i) to bring any counterclaim against the claimant; or

(ii) to raise any defence in relation to matters arising

under the construction contract.

20 Consequences of not paying claimant under payment schedule

(1) This section applies if--

(a) a claimant serves a payment claim on a respondent; and

(b) the respondent serves a payment schedule on the claimant within

the earlier of--

(i) the time required by the relevant construction

contract; or

(ii) 10 business days after the payment claim is served;

and

respondent proposes to pay to the claimant; and

(d) the respondent fails to pay the whole or any part of the

scheduled amount to the claimant on or before the due date for the

progress payment to which the payment claim relates.

(2) The claimant--

(a) may--

(i) recover the unpaid portion of the scheduled amount from

the respondent, as a debt owing to the claimant, in any

court of competent jurisdiction; or

(ii) make an adjudication application under section 21(1)

(a)(ii) in relation to the payment claim; and

(b) may serve notice on the respondent of the claimant's intention to

suspend, under section 33, carrying out construction work or

supplying related goods and services under the construction contract.

(3) A notice under subsection (2)(b) must state that it is made under this Act.

(4) If the claimant starts proceedings under subsection (2)(a)(i) to recover

the unpaid portion of the scheduled amount from the respondent as a debt--

(a) judgement in favour of the claimant is not to be given by a court

unless the court is satisfied of the existence of the circumstances

referred to in subsection (1); and

(b) the respondent is not, in those proceedings, entitled--

(i) to bring any counterclaim against the claimant; or

(ii) to raise any defence in relation to matters arising

under the construction contract.

21 Adjudication application

(1) A claimant may apply for adjudication of a payment claim (an adjudication

application) if--

(a) the respondent serves a payment schedule under division 1 but--

(i) the scheduled amount stated in the payment schedule is

less than the claimed amount stated in the payment claim;

(ii) the respondent fails to pay the whole or any part of

the scheduled amount to the claimant by the due date for

payment of the amount; or

(b) the respondent fails to serve a payment schedule on the claimant

under division 1 and fails to pay the whole or any part of the

claimed amount by the due date for payment of the amount.

(2) An adjudication application to which subsection (1)(b) applies can not be

made unless--

(a) the claimant gives the respondent notice, within 20 business days

immediately following the due date for payment, of the claimant's

intention to apply for adjudication of the payment claim; and

(b) the notice states that the respondent may serve a payment

schedule on the claimant within 5 business days after receiving the

claimant's notice.

(3) An adjudication application--

(a) must be in writing; and

(b) must be made to an authorised nominating authority chosen by the

claimant; and

(i) for an application under subsection (1)(a)(i)-- within

10 business days after the claimant receives the payment

schedule;

(ii) for an application under subsection (1)(a)(ii)-

- within 20 business days after the due date for payment;

(iii) for an application under subsection (1)(b)--within 10

business days after the end of the 5 day period referred to

in subsection (2)(b); and

(d) must identify the payment claim and the payment schedule, if any,

to which it relates; and

(e) must be accompanied by the application fee, if any, decided by

the authorised nominating authority; and

(f) may contain the submissions relevant to the application the

claimant chooses to include.

(4) The amount of an application fee must not exceed the amount, if any,

prescribed under a regulation.

(5) A copy of an adjudication application must be served on the respondent.

(6) The authorised nominating authority to which an adjudication application is

made must refer the application, as soon as practicable, to a person eligible

to be an adjudicator under section 22.

22 When person may be an adjudicator

(1) A person may be an adjudicator in relation to a construction contract if

registered as an adjudicator under this Act.

(2) A person is not eligible to be an adjudicator in relation to a particular

construction contract--

(a) if the person is a party to the contract; or

(b) in circumstances prescribed under a regulation for this section.

(3) A regulation may be made under subsection (2)(b) only to prescribe

circumstances in which the appointment of an adjudicator might create a

conflict of interest.

23 Appointment of adjudicator

(1) If an authorised nominating authority refers an adjudication application to

an adjudicator, the adjudicator may accept the adjudication application by

serving notice of the acceptance on the claimant and the respondent.

(2) On accepting an adjudication application, the adjudicator is taken to have

been appointed to decide the application.

24 Adjudication responses

(1) Subject to subsection (3), the respondent may give the adjudicator a

response to the claimant's adjudication application (the adjudication response)

at any time within the later of the following to end--

(a) 5 business days after receiving a copy of the application;

(b) 2 business days after receiving notice of an adjudicator's

acceptance of the application.

(2) The adjudication response--

(a) must be in writing; and

(b) must identify the adjudication application to which it relates;

and

respondent chooses to include.

(3) The respondent may give the adjudication response to the adjudicator only

if the respondent has served a payment schedule on the claimant within the time

specified in section 18(4)(b) or 21(2)(b).

(4) The respondent can not include in the adjudication response any reasons for

withholding payment unless those reasons have already been included in the

payment schedule served on the claimant.

(5) A copy of the adjudication response must be served on the claimant.

25 Adjudication procedures

(1) An adjudicator must not decide an adjudication application until after the

end of the period within which the respondent may give an adjudication response

to the adjudicator.

(2) An adjudicator must not consider an adjudication response unless it was

made before the end of the period within which the respondent may give a

response to the adjudicator.

(3) Subject to subsections (1) and (2), an adjudicator must decide an

adjudication application as quickly as possible and, in any case--

(a) within 10 business days after the earlier of--

(i) the date on which the adjudicator receives the

adjudication response; or

(ii) the date on which the adjudicator should have received

the adjudication response; or

(b) within the further time the claimant and the respondent may

agree, whether before or after the end of the 10 business days.

(4) For a proceeding conducted to decide an adjudication application, an

adjudicator--

(a) may ask for further written submissions from either party and

must give the other party an opportunity to comment on the

submissions; and

(b) may set deadlines for further submissions and comments by the

parties; and

(d) may carry out an inspection of any matter to which the claim

relates.

(5) If a conference is called, it must be conducted informally and the parties

are not entitled to any legal representation.

(6) The adjudicator's power to decide an adjudication application is not

affected by the failure of either or both of the parties to make a submission

or comment within time or to comply with the adjudicator's call for a

conference of the parties.

26 Adjudicator's decision

(1) An adjudicator is to decide--

(a) the amount of the progress payment, if any, to be paid by the

respondent to the claimant (the adjudicated amount); and

(b) the date on which any amount became or becomes payable; and

(2) In deciding an adjudication application, the adjudicator is to consider the

following matters only--

(a) the provisions of this Act and, to the extent they are relevant,

the provisions of the Queensland Building Services Authority Act

1991, part 4A;

(b) the provisions of the construction contract from which the

application arose;

all submissions, including relevant documentation, that have been

properly made by the claimant in support of the claim;

(d) the payment schedule, if any, to which the application relates,

together with all submissions, including relevant documentation, that

have been properly made by the respondent in support of the schedule;

(e) the results of any inspection carried out by the adjudicator of

any matter to which the claim relates.

(3) The adjudicator's decision must--

(a) be in writing; and

(b) include the reasons for the decision, unless the claimant and the

respondent have both asked the adjudicator not to include the reasons

in the decision.

27 Valuation of work etc. in later adjudication application

(1) Subsection (2) applies if, in deciding an adjudication application, an

adjudicator has, under section 14, decided--

(a) the value of any construction work carried out under a

construction contract; or

(b) the value of any related goods and services supplied under a

construction contract.

(2) The adjudicator or another adjudicator must, in any later adjudication

application that involves the working out of the value of that work or of those

goods and services, give the work, or the goods and services, the same value as

that previously decided unless the claimant or respondent satisfies the

adjudicator concerned that the value of the work, or the goods and services,

has changed since the previous decision.

28 Adjudicator may correct clerical mistakes etc.

(1) Subsection (2) applies if the adjudicator's decision contains--

(a) a clerical mistake; or

(b) an error arising from an accidental slip or omission; or

description of a person, thing or matter mentioned in the decision;

(d) a defect of form.

(2) The adjudicator may, on the adjudicator's own initiative or on the

application of the claimant or the respondent, correct the decision.

29 Respondent required to pay adjudicated amount

(1) If an adjudicator decides that the respondent is required to pay an

adjudicated amount, the respondent must pay the amount to the claimant on or

before the relevant date.

(2) In this section--

relevant date means--

(a) the date that is 5 business days after the date on which the

adjudicator's decision is served on the respondent; or

(b) if the adjudicator decides a later date under section 26(1)(b)--

the later date.

30 Consequences of not paying claimant adjudicated amount

(1) If the respondent fails to pay the whole or any part of the adjudicated

amount to the claimant under section 29, the claimant--

(a) may ask the authorised nominating authority to whom the

adjudication application was made to provide an adjudication

certificate under this section; and

(b) may serve notice on the respondent of the claimant's intention to

suspend, under section 33, carrying out construction work or

supplying related goods and services under the construction contract.

(2) A notice under subsection (1)(b) must state that it is made under this Act.

(3) An adjudication certificate must state that it is made under this Act and

state the following matters--

(a) the name of the claimant;

(b) the name of the respondent who is liable to pay the adjudicated

amount;

(d) the date on which payment of the adjudicated amount was required

to be paid to the claimant.

(4) If an amount of interest payable on the adjudicated amount is not paid by

the respondent, the claimant may request the authorised nominating authority to

state the amount of interest payable in the adjudication certificate.

(5) If an amount of interest is specified in the adjudication certificate, the

amount is to be added to, and becomes part of, the adjudicated amount.

(6) If the claimant has paid the respondent's share of the adjudication fees

for the adjudication but has not been reimbursed by the respondent for that

amount (the unpaid share), the claimant may ask the authorised nominating

authority to state the unpaid share in the adjudication certificate.

(7) If the unpaid share is stated in the adjudication certificate, it is to be

added to, and becomes part of, the adjudicated amount.

31 Filing of adjudication certificate as judgement debt

(1) An adjudication certificate may be filed as a judgement for a debt, and may

be enforced, in a court of competent jurisdiction.

(2) An adjudication certificate can not be filed under this section unless it

is accompanied by an affidavit by the claimant stating that the whole or a part

of the adjudicated amount has not been paid at the time the certificate is

filed.

(3) If the affidavit states that part of the adjudicated amount has been paid,

the judgement is for the unpaid part of the amount only.

(4) If the respondent commences proceedings to have the judgement set aside,

the respondent--

(a) is not, in those proceedings, entitled--

(i) to bring any counterclaim against the claimant; or

(ii) to raise any defence in relation to matters arising

under the construction contract; or

(iii) to challenge the adjudicator's decision; and

(b) is required to pay into the court as security the unpaid portion

of the adjudicated amount pending the final decision in those

proceedings.

32 Claimant may make new application in certain circumstances

(1) This section applies if--

(a) a claimant does not receive an adjudicator's notice of acceptance

of an adjudication application within 4 business days after the

application is made; or

(b) an adjudicator who accepts an adjudication application does not

decide the application within the time allowed by section 25(3).

(2) In either of those circumstances, the claimant--

(a) may withdraw the application, by notice served on the adjudicator

or authorised nominating authority to whom the application was made;

and

(b) may make a new adjudication application under section 21.

(3) Despite section 21(3)(c), a new adjudication application may be made at any

time within 5 business days after the claimant becomes entitled to withdraw the

previous adjudication application under subsection (2).

(4) This division applies to a new application mentioned in this section in the

same way as it applies to an application under section 21.

33 Claimant may suspend work

(1) A claimant may suspend carrying out of construction work or the supply of

related goods and services under a construction contract if at least 2 business

days have passed since the claimant has given notice of intention to do so to

the respondent under section 19, 20 or 30.

(2) The right conferred by subsection (1) exists until the end of the period of

3 business days immediately following the date on which the claimant receives

payment from the respondent of the amount mentioned in section 19(1), 20(1) or

29(1).

(3) If the claimant, in exercising the right to suspend carrying out of

construction work or the supply of related goods and services under a

construction contract, incurs any loss or expenses as a result of the removal

by the respondent from the contract of any part of the work or supply, the

respondent is liable to pay the claimant the amount of the loss or expenses.

(4) A claimant who suspends carrying out construction work or the supply of

related goods and services under a construction contract under the right

conferred by subsection (1) is not liable for any loss or damage suffered by

the respondent, or by any person claiming through the respondent, because of

the claimant not carrying out that work or not supplying those goods and

services, during the period of suspension.

34 Authorised nominating authority's fees

(1) An authorised nominating authority may charge a fee for any service

provided by the authority relating to an adjudication application made to the

authority.

(2) If an amount is prescribed under a regulation for a service provided by an

authorised nominating authority, the amount charged for the service must not be

more than the amount prescribed.

(3) The claimant and respondent are--

(a) jointly and severally liable to pay any fee; and

(b) each liable to contribute to the payment of any fee in equal

proportions or in the proportions the adjudicator to whom the

adjudication application is referred may decide.

35 Adjudicator's fees

(1) An adjudicator is entitled to be paid for adjudicating an adjudication

application--

(a) the amount, by way of fees and expenses, agreed between the

adjudicator and the parties to the adjudication; or

(b) if no amount is agreed, the amount, for fees and expenses, that

is reasonable having regard to the work done and expenses incurred by

the adjudicator.

(2) The claimant and respondent are jointly and severally liable to pay the

adjudicator's fees and expenses.

(3) The claimant and respondent are each liable to contribute to the payment of

the adjudicator's fees and expenses in equal proportions or in the proportions

the adjudicator decides.

(4) An adjudicator is not entitled to be paid any fees or expenses for the

adjudication of an adjudication application if the adjudicator fails to make a

decision on the application (other than because the application is withdrawn or

the dispute between the claimant and respondent is resolved) within the time

allowed by section 25(3).

(5) Subsection (4) does not apply only because an adjudicator refuses to

communicate the adjudicator's decision on an adjudication application until the

adjudicator's fees and expenses are paid.

36 Registry established

(1) The Adjudication Registry (the registry) is established.

(2) The registry consists of the Adjudication Registrar (the registrar) and the

staff of the registry.

37 Appointment of registrar and staff of registry

(1) A person is eligible for appointment as the registrar only if the person

has particular knowledge and experience of--

(a) public administration; and

(b) something else of substantial relevance to the functions of the

registrar.

(2) The registrar and other staff of the registry are to be appointed by the

authority under this Act.

38 Registrar's functions and powers

(1) Subject to the direction of the general manager, the registrar is

responsible for managing the registry and the administrative affairs of the

registry.

(2) The registrar has the following functions--

(a) to keep a register, containing details of authorised nominating

authorities and adjudicators, which may be kept in any form allowing

it to be inspected as mentioned in paragraph (b);

(b) to ensure the register is available for inspection by an entity--

(i) without charge; or

(ii) if a regulation prescribes a fee for the inspection,

on payment of the fee prescribed;

regulation for the certificate;

(d) to keep records of decisions by adjudicators and to publish the

decisions in a way approved by the general manager;

(e) to keep account of fees paid or payable to the registrar;

(f) to collect statistical data and other information relevant to the

administration of the registry for the general manager's report to

the Minister under section 41;

(g) any other functions given under this Act.

(3) The registrar has the powers reasonably necessary to perform the

registrar's functions.

39 Delegation by registrar

(1) The registrar may delegate the registrar's powers under this Act or another

Act to an appropriately qualified member of the staff of the registry.

(2) In this section--

appropriately qualified includes having the qualifications, experience or

standing appropriate to exercise the power.

Example of standing--

a person's seniority level as a member of the staff of the registry

40 Acting registrar

(1) The authority may appoint an appropriately qualified person to act as

registrar.

(2) The appointee is to act as registrar if--

(a) the registrar is not available to carry out the registrar's

duties; or

(b) there is a vacancy in the office of registrar.

(3) In this section--

appropriately qualified includes having particular knowledge and experience of-

(a) public administration; and

(b) something else of substantial relevance to the functions of the

registrar.

41 Annual report on operation of Act and registry

(1) As soon as practicable after each financial year, but not later than 30

September, the general manager must give the Minister a report containing--

(a) a review of the operation of this Act and the registry during the

preceding financial year; and

(b) proposals for improving the operation of, and forecasts of the

workload of, the registry in the present financial year.

(2) The Minister must table a copy of the report in the Legislative Assembly

within 14 sitting days after receiving the report.

42 Application for registration

(1) A person may apply to the registrar for registration as an authorised

nominating authority.

(2) The application must--

(a) be in the approved form; and

(b) be signed by or for the applicant; and

application.

43 What the application must state

The application must state the following--

(a) the name and address of the applicant;

(b) an address in Queensland for service of documents;

(d) the names of the individuals to be involved in the day to day

running of the applicant's business as an authorised nominating

authority;

(e) the qualifications and experience of the applicant, and

individuals to be involved in the day to day running of the

applicant's business, relevant to dealing with adjudication

applications;

(f) whether the applicant represents the interests of a particular

sector of the building or construction industry;

(g) the matters the applicant will consider in appointing

adjudicators to decide adjudication applications;

(h) the ongoing training and support the applicant will make

available to adjudicators;

(i) other details, required in the approved form for the application,

to enable the registrar to decide whether the applicant is a suitable

person to be registered as an authorised nominating authority.

44 Consideration of application for registration

The registrar must consider the application and either grant, or refuse to

grant, the application.

45 Criteria for granting application for registration

The registrar may grant the application for registration only if the registrar

is satisfied the applicant is a suitable person to be registered as an

authorised nominating authority.

46 Suitability of person to be registered

In deciding whether an applicant is a suitable person to be registered, the

registrar may have regard to the following matters--

(a) whether the person, or an individual engaged or employed by the

person, has a conviction for a relevant offence, other than a spent

conviction;

(b) whether the person, or an individual engaged or employed by the

person--

(i) held a registration under this division, or a licence

or registration under a corresponding law, that was

suspended or cancelled; or

(ii) has been refused registration under this division or a

licence or registration under a corresponding law;

sector of the building or construction industry and, if so, whether

this would make the applicant unsuitable to appoint adjudicators;

(d) the matters stated in the application for registration under

section 43;

(e) anything else relevant to the person's ability to conduct

business as an authorised nominating authority.

47 Inquiries into application for registration

(1) Before deciding the application, the registrar--

(a) may make inquiries to decide the suitability of the applicant to

be registered; and

(b) may, by notice given to the applicant, require the applicant to

give the registrar within the reasonable time of at least 28 days

stated in the notice, further information or a document the registrar

reasonably requires to decide the application.

(2) The applicant is taken to have withdrawn the application if, within the

stated time, the applicant does not comply with a requirement under subsection

(1)(b).

(3) A notice under subsection (1)(b) must be given to the applicant within 28

days after the registrar receives the application.

(4) The information or document under subsection (1)(b) must, if the notice

requires, be verified by a statutory declaration.

48 Decision on application for registration

(1) If the registrar decides to grant the application, the registrar must issue

a certificate of registration to the applicant.

(2) If the registrar decides to impose conditions on the registration, the

registrar must immediately give the applicant an information notice for the

decision.

(3) If the registrar decides to refuse to grant the application, the registrar

must immediately give the applicant an information notice for the decision.

49 Failure to decide application for registration

(1) Subject to subsections (2) and (3), if the registrar fails to decide the

application within 28 days after its receipt, the failure is taken to be a

decision by the registrar to refuse to grant the application.

(2) Subsection (3) applies if--

(a) a person has made an application for registration; and

(b) the registrar has under section 47(1)(b), required the applicant

to give the registrar further information or a document.

(3) The registrar is taken to have refused to grant the application if the

registrar does not decide the application within 28 days after the registrar

receives the further information or document.

(4) If the application is refused under this section, the applicant is entitled

to be given an information notice for the decision by the registrar.

50 Term of registration

(1) A registration becomes effective on the day the certificate of registration

is issued or on the day of the registration's renewal and ends either--

(a) 3 years after that day; or

(b) on the earlier day stated in the certificate of registration.

(2) The earlier day may be decided by the registrar.

51 Conditions of registration

(1) A registration is subject to the following conditions--

(a) the authorised nominating authority must comply with this Act;

(b) the authorised nominating authority must ensure that the

authority's registration, or a copy of the registration, is displayed

at the authority's principal place of business so that it is easily

visible to a person as the person enters the place;

to give effect to this Act and that are stated in the certificate of

registration or in an information notice given under subsection (3).

(2) Conditions may be imposed under subsection (1)(c)--

(a) when registration first happens or is renewed or amended; or

(b) at another time if the registrar considers this is necessary to

ensure that an authorised nominating authority effectively performs

the authority's functions under this Act.

(3) If the registrar decides to impose conditions on the authorised nominating

authority under subsection (2)(b)--

(a) the registrar must immediately give the authority an information

notice for the decision; and

(b) the conditions take effect when the information notice is

received by the authorised nominating authority or the later day

stated in the notice.

52 Registration required to perform functions of authorised nominating

authority

A person must not accept an adjudication application or refer it to an

adjudicator unless the person is an authorised nominating authority.

Maximum penalty--500 penalty units.

53 Authorised nominating authority must ensure adjudicators are registered

An authorised nominating authority must not refer an adjudication application

to a person unless the person is registered as an adjudicator under division 3.

Maximum penalty--500 penalty units.

54 Authorised nominating authority must comply with registration conditions

(1) An authorised nominating authority must not contravene a condition of the

registration.

Maximum penalty--200 penalty units.

(2) The penalty under subsection (1) may be imposed whether or not the

registration is suspended or cancelled because of the contravention.

55 Form of certificate of registration

A certificate of registration must state the following particulars--

(a) the authorised nominating authority's name;

(b) the address of the authority's principal place of business;

(d) the day the registration expires;

(e) the registration number;

(f) the registration conditions.

56 Application for registration

(1) An individual may apply to the registrar for registration as an

adjudicator.

(2) The application must--

(a) be in the approved form; and

(b) be signed by or for the applicant; and

application.

57 What the application must state

The application must state the following--

(a) the name and address of the applicant;

(b) an address in Queensland for service of documents;

deciding adjudication applications;

(d) other details, required in the approved form for the application,

to enable the registrar to decide whether the applicant is a suitable

person to be registered as an adjudicator.

58 Consideration of application for registration

The registrar must consider the application and either grant, or refuse to

grant, the application.

59 Criteria for granting application for registration

The registrar may grant the application only if the registrar is satisfied the

applicant is a suitable person to be registered as an adjudicator.

60 Suitability of person to be registered

(1) A person is not a suitable person to be registered as an adjudicator unless

the person holds--

(a) an adjudication qualification; or

(b) another qualification that the registrar considers to be

equivalent to an adjudication qualification.

(2) In deciding whether an applicant is a suitable person to be registered, the

registrar may have regard to the following matters--

(a) whether the person has a conviction for a relevant offence, other

than a spent conviction;

(b) whether the person--

(i) held a registration under this division, or a licence

or registration under a corresponding law, that was

suspended or cancelled; or

(ii) has been refused registration under this division or a

licence or registration under a corresponding law;

(d) the matters stated in the application for registration under

section 57;

(e) anything else relevant to the person's ability to carry out the

person's functions as an adjudicator.

61 Inquiries into application for registration

(1) Before deciding the application, the registrar--

(a) may make inquiries to decide the suitability of the applicant to

be registered; and

(b) may, by notice given to the applicant, require the applicant to

give the registrar within the reasonable time of at least 28 days

stated in the notice, further information or a document the registrar

reasonably requires to decide the application.

(2) The applicant is taken to have withdrawn the application if, within the

stated time, the applicant does not comply with a requirement under subsection

(1)(b).

(3) A notice under subsection (1)(b) must be given to the applicant within 28

days after the registrar receives the application.

(4) The information or document under subsection (1)(b) must, if the notice

requires, be verified by a statutory declaration.

62 Decision on application for registration

(1) If the registrar decides to grant the application, the registrar must issue

a certificate of registration to the applicant.

(2) If the registrar decides to impose conditions on the registration, the

registrar must immediately give the applicant an information notice for the

decision.

(3) If the registrar decides to refuse to grant the application, the registrar

must immediately give the applicant an information notice for the decision.

63 Failure to decide application for registration

(1) Subject to subsections (2) and (3), if the registrar fails to decide the

application within 28 days after its receipt, the failure is taken to be a

decision by the registrar to refuse to grant the application.

(2) Subsection (3) applies if--

(a) a person has made an application for registration; and

(b) the registrar has under section 61(1)(b), required the applicant

to give the registrar further information or a document.

(3) The registrar is taken to have refused to grant the application if the

registrar does not decide the application within 28 days after the registrar

receives the further information or document.

(4) If the application is refused under this section, the applicant is entitled

to be given an information notice for the decision by the registrar.

64 Term of registration

(1) A registration becomes effective on the day the certificate of registration

is issued or on the day of the registration's renewal and ends either--

(a) 3 years after that day; or

(b) on the earlier day stated in the certificate of registration.

(2) The earlier day may be decided by the registrar.

65 Conditions of registration

(1) A registration is subject to the following conditions--

(a) the adjudicator must comply with this Act;

(b) other reasonable conditions the registrar considers appropriate

to give effect to this Act and that are stated in the certificate of

registration or in an information notice given under subsection (3).

(2) Conditions may be imposed under subsection (1)(b)--

(a) when registration first happens or is renewed or amended; or

(b) at another time if the registrar considers this is necessary to

ensure that an adjudicator effectively performs the adjudicator's

functions under this Act.

(3) If the registrar decides to impose conditions on the registration under

subsection (2)(b)--

(a) the registrar must immediately give the adjudicator an

information notice for the decision; and

(b) the conditions take effect when the information notice is

received by the adjudicator or the later day stated in the notice.

66 Registration required to perform functions of adjudicator

A person must not accept or decide an adjudication application unless the

person is an adjudicator.

Maximum penalty--500 penalty units.

67 Adjudicator must comply with registration conditions

(1) An adjudicator must not contravene a condition of the registration.

Maximum penalty--200 penalty units.

(2) The penalty under subsection (1) may be imposed whether or not the

registration is suspended or cancelled because of the contravention.

68 Form of certificate of registration

A certificate of registration must state the following particulars--

(a) the registrant's name;

(b) the day the registration becomes effective;

(d) the registration number;

(e) the registration conditions.

69 Definitions for div 4

In this division--

registrant means--

(a) for a person applying for a renewal of registration as an

authorised nominating authority, that person; or

(b) for a person applying for a renewal of registration as an

adjudicator, that person.

registration means--

(a) for a renewal of registration as an authorised nominating

authority, that registration; or

(b) for a renewal of registration as an adjudicator, that

registration.

70 Applications for renewal of registration

(1) A registrant may apply to the registrar for the renewal of the

registration.

(2) The application must be made at least 1 month before the registration ends

and must--

(a) be in the approved form; and

(b) be signed by or for the applicant; and

application.

(3) The registrar must consider the application and renew, or refuse to renew,

the registration.

(4) In deciding whether to grant the application, the registrar may have regard

to the matters to which the registrar may have regard in deciding whether an

applicant for registration is a suitable person to be registered.

(5) If the registrar decides to refuse to renew the registration, the registrar

must immediately give the registrant an information notice for the decision.

(6) If the registrar decides to impose conditions on the registration, the

registrar must immediately give the registrant an information notice for the

decision.

(7) A registration may be renewed by--

(a) endorsing the existing certificate of registration; or

(b) cancelling the existing certificate and issuing another

certificate.

71 Inquiries into application for renewal of registration

(1) Before deciding the application, the registrar may, by notice given to the

registrant, require the registrant to give the registrar, within a reasonable

period of at least 28 days stated in the notice, further information or a

document the registrar reasonably requires to decide the application.

(2) The registrant is taken to have withdrawn the application if, within the

stated period, the registrant does not comply with the requirement.

72 Registration taken to be in force while application for renewal is

considered

(1) If an application is made under section 70, the registrant's registration

is taken to continue in force from the day that it would, apart from this

section, have ended until the application is decided under section 70 or taken

to have been withdrawn under section 71(2).

(2) However, if the application is refused, the registration continues in force

until the information notice for the decision is given to the registrant.

(3) Subsection (1) does not apply if the registration is earlier suspended or

cancelled.

73 Definitions for div 5

In this division--

registrant means--

(a) for a registrant applying for amendment of a registration as an

authorised nominating authority, that registrant; or

(b) for a registrant applying for amendment of a registration as an

adjudicator, that registrant.

registration means--

(a) for an amendment of a registration as an authorised nominating

authority, that registration; or

(b) for an amendment of a registration as an adjudicator, that

registration.

74 Application for amendment of registration

(1) A registrant may apply to the registrar for an amendment of the

registration including any conditions imposed by the registrar.

(2) The application must--

(a) be in the approved form; and

(b) be signed by or for the applicant; and

application.

(3) The registrar must consider the application and amend, or refuse to amend,

the registration.

(4) If the registrar decides to refuse to amend the registration, the registrar

must immediately give the registrant an information notice for the decision.

(5) If the registrar decides to impose a condition on the amended registration,

the registrar must immediately give the registrant an information notice for

the decision.

(6) A registration may be amended by--

(a) endorsing the existing registration with details of the

amendment; or

(b) cancelling the existing registration and issuing another

registration containing the amendment.

75 Inquiries into application for amendment

(1) Before deciding the application, the registrar may, by notice given to the

registrant, require the registrant to give the registrar, within a reasonable

period of at least 28 days stated in the notice, further information or a

document the registrar reasonably requires to decide the application.

(2) The registrant is taken to have withdrawn the application if, within the

stated period, the registrant does not comply with the requirement.

76 Definitions for div 6

In this division--

registrant means--

(a) for a person registered as an authorised nominating authority,

that person; or

(b) for a person registered as an adjudicator, that person.

registration means--

(a) for a registration as an authorised nominating authority, that

registration; or

(b) for a registration as an adjudicator, that registration.

77 Grounds for suspension or cancellation

(1) Each of the following is a ground for suspending or cancelling a

registration--

(a) the registrant is not, or is no longer, a suitable person to hold

the registration;

(b) the registrant has contravened a condition of the registration;

misleading representation or declaration.

(2) For forming a belief that the ground mentioned in subsection (1)(a) exists,

the registrar may have regard to the matters to which the registrar may have

regard in deciding whether a proposed registrant is a suitable person to hold

the registration.

Editor's note--

See sections 46 and 60 (Suitability of person to be registered).

78 Show cause notice

(1) This section applies if the registrar believes a ground exists to suspend

or cancel a registration.

(2) The registrar must give the registrant a notice under this section (a show

cause notice).

(3) The show cause notice must state--

(a) the action (the proposed action) the registrar proposes taking

under this division; and

(b) the grounds for the proposed action; and

the grounds; and

(d) if the proposed action is suspension of the registration--the

proposed suspension period; and

(e) an invitation to the registrant to show within a stated period

(the show cause period) why the proposed action should not be taken.

(4) The show cause period must be a period ending at least 21 days after the

show cause notice is given to the registrant.

79 Representations about show cause notices

(1) The registrant may make written representations about the show cause notice

to the registrar in the show cause period.

(2) The registrar must consider all representations (the accepted

representations) made under subsection (1).

80 Ending show cause process without further action

(1) This section applies if, after considering the accepted representations for

the show cause notice, the registrar no longer believes a ground exists to

suspend or cancel the registration.

(2) The registrar must not take any further action about the show cause notice.

(3) The registrar must give the registrant a notice that no further action is

to be taken about the show cause notice.

81 Suspension or cancellation

(1) This section applies if--

(a) there are accepted representations for the show cause notice and,

after considering them, the registrar still believes a ground exists

to suspend or cancel the registration; or

(b) there are no accepted representations.

(2) If the registrar believes suspension or cancellation of the registration is

warranted, the registrar may--

(a) if the proposed action stated in the show cause notice was to

suspend the registration for a stated period--suspend the

registration for not longer than the stated period; or

(b) if the proposed action stated in the show cause notice was to

cancel the registration--either cancel the registration or suspend it

for a period.

(3) The registrar must immediately give an information notice for the decision

to the registrant.

(4) The decision takes effect on the later of the following days--

(a) the day the information notice is given to the registrant;

(b) the day stated in the information notice for that purpose.

82 Immediate suspension of registration

(1) The registrar may suspend a registration immediately if the registrar

believes--

(a) a ground exists to suspend or cancel the registration; and

(b) it is necessary to suspend the registration immediately because

there is an immediate and serious harm to the effectiveness of the

adjudication of payment claims under this Act.

(2) The suspension--

(a) must be effected by an information notice for the decision given

by the registrar to the registrant to suspend the registrant's

registration together with a show cause notice; and

(b) operates immediately the notices are given; and

(i) the registrar cancels the remaining period of the

suspension;

(ii) the show cause notice is finally dealt with;

(iii) 28 days have passed since the notices were given to

the registrant.

(3) Subsection (4) applies if--

(a) a suspension under this section stops because--

(i) the registrar cancels the remaining period of the

suspension; or

(ii) the show cause notice is finally dealt with by a

decision being made not to cancel or suspend the

registration; or

(iii) 28 days have passed since the notices mentioned in

subsection (2)(a) were given to the registrant; and

(b) the registrant has returned the certificate of registration to

the registrar under section 83.

(4) The registrar must, as soon as practicable, give the certificate of

registration to the registrant.

83 Return of cancelled or suspended registration to registrar

(1) This section applies if the registrar has cancelled or suspended a

registration and given an information notice for the decision to the

registrant.

(2) The registrant must return the certificate of registration to the registrar

within 7 days after receiving the information notice, unless the registrant has

a reasonable excuse.

Maximum penalty for subsection (2)--20 penalty units.

84 Effect of suspension or cancellation of registration of authorised

nominating authority or adjudicator

(1) This section applies if--

(a) the registration of an authorised nominating authority or an

adjudicator is suspended or cancelled or otherwise ends; and

(b) an adjudication application has been made to the authorised

nominating authority, or referred to the adjudicator, for an

adjudication of a payment claim; and

relation to the adjudication application.

(2) The adjudication application is taken to have been withdrawn by the

claimant under section 32(2)(a) and the claimant may make a new adjudication

application under section 21.

(3) Despite section 21(3)(c), a new adjudication application may be made at any

time within 5 business days after the claimant becomes aware the registration

has ended.

(4) Part 3, division 2, applies to a new application mentioned in this section

in the same way as it applies to an application under section 21.

(5) Neither the authorised nominating authority nor the adjudicator is entitled

to any fees or expenses in relation to the adjudication application taken to

have been withdrawn.

85 Issue of adjudication certificate by registrar

(1) This section applies if--

(a) an adjudication application has been made to an authorised

nominating authority for the adjudication of a payment claim; and

(b) the adjudication application has been referred to an adjudicator;

and

suspended or cancelled or otherwise ends after the claim has been

referred to the adjudicator; and

(d) the adjudicator has made a decision under section 26 in relation

to the adjudication application.

(2) The registrar may provide an adjudication certificate under section 30 as

if the registrar were the authorised nominating authority.

(3) The authorised nominating authority must provide the registrar with the

information and documents requested by the registrar to enable the registrar to

provide the adjudication certificate, unless the authorised nominating

authority has a reasonable excuse.

Maximum penalty--200 penalty units.

(4) The adjudicator must provide the registrar with the information and

documents requested by the registrar to enable the registrar to provide the

adjudication certificate, unless the adjudicator has a reasonable excuse.

Maximum penalty--200 penalty units.

86 Definitions for div 7

In this division--

registrant means--

(a) for a person registered as an authorised nominating authority,

that registrant; or

(b) for a person registered as an adjudicator, that registrant.

registration means--

(a) for a registration as an authorised nominating authority, that

registration; or

(b) for a registration as an adjudicator, that registration.

87 Surrender of registration

(1) A registrant may surrender the registrant's registration by notice given to

the registrar.

(2) The registrant's certificate of registration must accompany the notice.

(3) The surrender takes effect on the later of the following--

(a) the day the notice is given;

(b) the day specified in the notice.

88 Application for replacement of certificate of registration

(1) A registrant may apply for replacement of the registrant's certificate of

registration if the certificate has been damaged, destroyed, lost or stolen.

(2) The application must--

(a) be made to the registrar; and

(b) include information about the circumstances in which the

certificate was damaged, destroyed, lost or stolen; and

application.

89 Decision about application for replacement of certificate of registration

(1) The registrar must consider the application and either grant, or refuse to

grant, the application.

(2) The registrar must grant the application if the registrar is satisfied the

certificate of registration has been destroyed, lost or stolen, or damaged in a

way to require its replacement.

(3) If the registrar decides to grant the application, the registrar must, as

soon as practicable, issue another certificate of registration to the applicant

to replace the damaged, destroyed, lost or stolen certificate.

(4) If the registrar decides to refuse to grant the application, the registrar

must immediately give the applicant an information notice for the decision.

90 False or misleading statements

A person must not, for an application made under this part, state anything to

the registrar the person knows is false or misleading in a material particular.

Maximum penalty--50 penalty units.

91 False or misleading documents

(1) A person must not, for an application made under this part, give a document

to the registrar containing information the person knows is false or misleading

in a material particular.

Maximum penalty--50 penalty units.

(2) Subsection (1) does not apply to a person if the person, when giving the

document--

(a) tells the registrar, to the best of the person's ability, how it

is false or misleading; and

(b) if the person has, or can reasonably obtain, the correct

information--gives the correct information to the registrar.

92 Review process starts with internal review

(1) Subject to this division, a person who is given, or is entitled to be

given, an information notice for a decision under part 4 (the original

decision) may apply for a review of the decision under this part.

(2) The review must be, in the first instance, by way of an application for

internal review under section 93.

93 Application for review to be made to the registrar

The person may apply to the registrar for a review of the original decision.

94 Applying for review

(1) The application must be made within 28 days after--

(a) if the person is given an information notice for the decision--

the day the person is given the information notice; or

(b) if paragraph (a) does not apply--the day the person otherwise

becomes aware of the decision.

(2) The registrar may, at any time, extend the time for applying for the

review.

(3) The application must be in writing and state fully the grounds of the

application.

95 Review decision

(1) After reviewing the original decision, the registrar must make a further

decision (the review decision) to--

(a) confirm the original decision; or

(b) amend the original decision; or

(2) The registrar must immediately give the applicant notice of the review

decision (the review notice).

(3) If the review decision is not the decision sought by the applicant, the

review notice must comply with the QCAT Act, section 157(2).

(4) If the registrar does not give the notice within 28 days after the

application is made, the registrar is taken to have made a review decision

confirming the original decision on the 28th day after the application is made.

(5) If the review decision confirms the original decision, for the purpose of

an application to the tribunal for a review, the original decision is taken to

be the review decision.

(6) If the review decision amends the original decision, for the purpose of an

application to the tribunal for a review, the original decision as amended is

taken to be the review decision.

96 Stay of operation of decision

(1) If an application is made for a review of an original decision, the

applicant may immediately apply, as provided under the QCAT Act, for a stay of

the decision to the tribunal.

(2) The tribunal may stay the decision to secure the effectiveness of the

review and any later review by the tribunal.

(3) The stay--

(a) may be given on conditions the tribunal considers appropriate;

and

(b) operates for the period fixed by the tribunal; and

(4) The period of the stay must not extend past the time when the registrar

makes a review decision about the original decision and any later period the

tribunal allows the applicant to enable the applicant to apply to the tribunal

for a review of the review decision.

(5) The application affects the decision, or carrying out of the decision, only

if the decision is stayed.

97 Who may apply to tribunal for an external review

A person who has applied for the review of an original decision under division

1 and is dissatisfied with the review decision may apply, as provided under the

QCAT Act, to the tribunal for a review of the review decision.

99 No contracting out

(1) The provisions of this Act have effect despite any provision to the

contrary in any contract, agreement or arrangement.

(2) A provision of any contract, agreement or arrangement (whether in writing

or not) is void to the extent to which it--

(a) is contrary to this Act; or

(b) purports to annul, exclude, modify, restrict or otherwise change

the effect of a provision of this Act, or would otherwise have the

effect of excluding, modifying, restricting or otherwise changing the

effect of a provision of this Act; or

taking action under this Act.

100 Effect of pt 3 on civil proceedings

(1) Subject to section 99, nothing in part 3 affects any right that a party to

a construction contract--

(a) may have under the contract; or

(b) may have under part 2 in relation to the contract; or

omitted to be done under the contract.

(2) Nothing done under or for part 3 affects any civil proceedings arising

under a construction contract, whether under part 3 or otherwise, except as

provided by subsection (3).

(3) In any proceedings before a court or tribunal in relation to any matter

arising under a construction contract, the court or tribunal--

(a) must allow for any amount paid to a party to the contract under

or for part 3 in any order or award it makes in those proceedings;

and

(b) may make the orders it considers appropriate for the restitution

of any amount so paid, and any other orders it considers appropriate,

having regard to its decision in the proceedings.

101 Adjudicator must give copy of decision to authorised nominating authority

An adjudicator must, as soon as practicable, give a copy of the adjudicator's

decision under section 26(3) to the authorised nominating authority that

referred the adjudication application to the adjudicator.

102 Authorised nominating authority must give information to registrar

An authorised nominating authority must, at the times specified by the

registrar, give the registrar--

(a) a copy of the decisions given to it by adjudicators; and

(b) the other information required in the approved form.

103 Service of notices

(1) A notice or other document that under this Act is authorised or required to

be served on a person may be served on the person in the way, if any, provided

under the construction contract concerned.

(2) Subsection (1) is in addition to, and does not limit or exclude, the Acts

Interpretation Act 1954, section 39 or the provisions of any other law about

the service of notices.

104 Proof of signature unnecessary

A signature purporting to be the signature of the registrar is evidence of the

signature it purports to be.

105 Evidentiary aids

(1) A certificate signed by the registrar certifying anything about the

contents of the register is evidence of the thing stated.

(2) A certificate signed by the registrar stating any of the following is

evidence of the matters stated--

(a) that a person was or was not at a time or during a period, or is

or is not, an authorised nominating authority;

(b) that an individual was or was not at a time or during a period,

or is or is not, an adjudicator;

record or document, or an extract from a record or document, kept

under this Act.

106 Protection from liability

(1) An official does not incur civil liability for an act done, or omission

made, honestly and without negligence under this Act.

(2) If subsection (1) prevents a civil liability attaching to an official, the

liability attaches instead to the State.

(3) In this section--

official means--

(a) the general manager; or

(b) the registrar; or

107 Protection from liability for adjudicators and authorised nominating

authorities

(1) An adjudicator is not personally liable for anything done or omitted to be

done in good faith--

(a) in performing the adjudicator's functions under this Act; or

(b) in the reasonable belief that the thing was done or omitted to be

done in the performance of the adjudicator's functions under this

Act.

(2) No action lies against an authorised nominating authority or any other

person for anything done or omitted to be done by the authorised nominating

authority in good faith--

(a) in performing the nominating authority's functions under this

Act; or

(b) in the reasonable belief that the thing was done or omitted to be

done in the performance of the nominating authority's functions under

this Act.

108 Summary offences

(1) A proceeding for an offence against this Act is to be taken in a summary

way under the Justices Act 1886.

(2) The proceedings must start--

(a) within 1 year after the commission of the offence; or

(b) within 6 months after the offence comes to the complainant's

knowledge, but within 2 years after the commission of the offence.

109 Allegations of false or misleading information or document

In any proceeding for an offence against this Act defined as involving false or

misleading information, or a false or misleading document, it is enough for a

charge to state that the information or document was, without specifying which,

'false or misleading'.

110 Approved forms

The general manager may approve forms for use under this Act.

111 Regulation-making power

(1) The Governor in Council may make regulations under this Act.

(2) A regulation may--

(a) provide for fees; and

(b) for an adjudication qualification, prescribe the following--

(i) the name of the qualification;

(ii) the bodies that may issue the qualification;

(iii) the name of the adjudication competency to be

achieved to gain the qualification;

(iv) the elements that must be successfully completed to

achieve the competency.

112 Transitional provision for adjudication qualification

(1) This section applies if, at the commencement, the matters mentioned in

section 111(2)(b) have not been prescribed for an adjudication qualification.

(2) Section 60(1) does not apply to a person applying for registration as an

adjudicator if the application is received after the commencement and before

the prescription of the matters mentioned in subsection (1).

(3) If the application is granted, it is a condition of the registration that

the adjudicator must obtain an adjudication qualification within 3 months of

the prescription of the matters mentioned in subsection (1).

(4) In this section--

commencement means the commencement of section 60.

Editor's note--

Section 60 commenced 1 July 2004 (see 2004 SL No. 91).

- SCHEDULE 2 -- DICTIONARY

accepted representations see section 79(2).

adjudicated amount see section 26(1).

adjudication application see section 21(1).

adjudication certificate means a certificate provided by an authorised

nominating authority under section 30.

adjudication fees means fees or expenses charged by an authorised nominating

authority, or by an adjudicator, under this Act.

adjudication qualification means a certificate issued by a body prescribed

under a regulation to an individual stating that the individual has achieved an

adjudication competency standard prescribed under a regulation.

adjudication response see section 24(1).

adjudicator--

(a) in relation to an adjudication application--means an adjudicator

appointed under this Act to decide the application; and

(b) otherwise--means an individual registered under part 4, division

3 as an adjudicator.

approved form means a form approved by the general manager under section 110.

authorised nominating authority means a person registered under part 4,

division 2 as an authorised nominating authority.

authority means the Queensland Building Services Authority under the Queensland

Building Services Authority Act 1991.

business day has the meaning given in the Acts Interpretation Act 1954, section

36 but does not include 27, 28, 29, 30 or 31 December.

carry out construction work means--

(a) carry out construction work personally; or

(b) directly or indirectly, cause construction work to be carried

out; or

services for carrying out construction work.

claimant see section 17(1).

claimed amount see section 17(2).

construction contract means a contract, agreement or other arrangement under

which one party undertakes to carry out construction work for, or to supply

related goods and services to, another party.

construction work see section 10.

conviction means a finding of guilt, or the acceptance of a plea of guilty, by

a court, whether or not a conviction is recorded.

corresponding law means a law applying, or that applied, in another State, the

Commonwealth or a foreign country that provides, or provided, for the same

matter as this Act or a provision of this Act.

domestic building work see the Domestic Building Contracts Act 2000, section 8.

due date, in relation to a progress payment, means the due date for the

progress payment, as referred to in section 15.

function includes a power.

general manager means the general manager of the authority.

information notice, for a decision of the registrar under part 5, is a notice

stating--

(a) the decision; and

(b) the reasons for the decision; and

reviewed within 28 days; and

(d) how the person may have the decision reviewed; and

(e) if the decision is that a licence be cancelled or suspended--

a direction to the person to return the licence to the registrar

within 7 days after receiving the notice.

notice means written notice.

original decision see section 92(1).

payment claim means a claim referred to in section 17.

payment schedule means a schedule referred to in section 18.

perform a function includes exercise a power.

progress payment means a payment to which a person is entitled under section

12, and includes, without affecting any entitlement under the section--

(a) the final payment for construction work carried out, or for

related goods and services supplied, under a construction contract;

(b) a single or one-off payment for carrying out construction work,

or for supplying related goods and services, under a construction

contract; or

building and construction industry as a 'milestone payment'.

proposed action see section 78(3)(a).

recognised financial institution means a bank, or other financial institution

prescribed under a regulation.

reference date, under a construction contract, means--

(a) a date stated in, or worked out under, the contract as the date

on which a claim for a progress payment may be made for construction

work carried out or undertaken to be carried out, or related goods

and services supplied or undertaken to be supplied, under the

contract; or

(b) if the contract does not provide for the matter--

(i) the last day of the named month in which the

construction work was first carried out, or the related

goods and services were first supplied, under the contract;

and

(ii) the last day of each later named month.

registrant--

(a) for part 4, division 4, see section 69;

(b) for part 4, division 5, see section 73;

(d) for part 4, division 7, see section 86.

registrar see section 36(2).

registration--

(a) for part 4, division 4, see section 69;

(b) for part 4, division 5, see section 73;

(d) for part 4, division 7, see section 86.

registry see section 36(1).

related goods and services see section 11.

relevant offence means--

(a) an indictable offence, other than an indictable offence that is

taken to be a simple offence under the Criminal Code, section 659; or

(b) an offence against this Act; or

(d) an offence against the Queensland Building Services Authority Act

1991 or a law of another State or the Commonwealth that provides for

the same matter as that Act or a provision of that Act; or

(e) an offence against the Domestic Building Contracts Act 2000 or a

law of another State or the Commonwealth that provides for the same

matter as that Act or a provision of that Act; or

(f) an offence, relating to the provision of services as an

authorised nominating authority or an adjudicator, against a law

applying, or that applied, in the State, the Commonwealth, another

State or a foreign country.

respondent see section 17(1).

review decision see section 95(1).

review notice see section 95(2).

scheduled amount see section 18(2)(b).

show cause notice see section 78(2).

show cause period see section 78(3)(e).

spent conviction means a conviction--

(a) for which the rehabilitation period under the Criminal Law

(Rehabilitation of Offenders) Act 1986 has expired under that Act;

and

(b) that is not revived as prescribed by section 11 of that Act.

tribunal means QCAT.

- NOTES

Page Date to which amendments incorporated 72 Key 73 Table of reprints 73 List

of legislation 74 List of annotations 74 List of forms notified or published in

the gazette 75

This is the reprint date mentioned in the Reprints Act 1992, section 5(c).

Accordingly, this reprint includes all amendments that commenced operation on

or before 1 December 2009. Future amendments of the Building and Construction

Industry Payments Act 2004 may be made in accordance with this reprint under

the Reprints Act 1992, section 49.

Key Explanation Key Explanation

AIA = Acts Interpretation Act 1954 (prev) = previously

amd = amended proc = proclamation

amdt = amendment prov = provision

ch = chapter pt = part

def = definition pubd = published

div = division R[X] = Reprint No. [X]

exp = expires/expired RA = Reprints Act 1992

gaz = gazette reloc = relocated

hdg = heading renum = renumbered

ins = inserted rep = repealed

lap = lapsed (retro) = retrospectively

notfd = notified rv = revised edition

num = numbered s = section

o in c = order in council sch = schedule

om = omitted sdiv = subdivision

orig = original SIA = Statutory Instruments Act 1992

p = page SIR = Statutory Instruments

Regulation 2002

para = paragraph SL = subordinate legislation

prec = preceding sub = substituted

pres = present unnum = unnumbered

Reprint No. Amendments included Effective Notes

0A none 1 July 2004

1 rv none 1 October 2004 Revision notice issued for R1

1A 2005 Act No. 33 18 August 2005

1B -- 30 September 2005 certain provs commenced R1B

withdrawn, see R2

2 -- 30 September 2005

2A 2009 Act No. 24 1 December 2009

(The following information about forms is taken from the gazette and is

included for information purposes only. Because failure by a department to

notify or publish a form in the gazette does not invalidate the form, you

should check with the relevant government department for the latest information

about forms (see Statutory Instruments Act, section 58(8)).)