Building and Construction Industry Security of Payment Act 2009 (No. 86 of

2009)

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CONTENTS

Building and Construction Industry Security of Payment Act 2009

Part 1 - Preliminary

1. Short title

2. Commencement

3. Object

4. Interpretation

5. Meaning of "building work or construction work"

6. Meaning of "building or construction-related goods and services"

Part 2 - Application and Effect of Act in Relation to other Acts,

Contracts, &c.

7. Application of Act

8. Act binds Crown

9. Act does not limit other entitlements or remedies

10. Effect on civil proceedings

11. Parties cannot contract out of Act

Part 3 - Rights to Progress Payments

12. Rights to progress payments

13. How value of building work or construction work, &c., to be

determined

14. Liens over unpaid amounts

15. Due date for payment

16. "Pay-when-paid" provisions of no effect

Part 4 - Payment Claims and Payment Schedules

17. Claims for payment may be made

18. Schedules for payment may be provided to claimant

19. Consequences of failing to provide payment schedule within

relevant period

20. Consequences of not paying claimant in accordance with payment

schedule

Part 5 - Adjudication of Disputes

21. Applications for adjudication

22. Appointment of adjudicator

23. Response by respondent to adjudication application

24. Adjudication proceedings

25. Determination of adjudication application

26. Respondent must pay amount determined by adjudicator

27. Adjudication certificate may be filed as judgment for debt

28. When claimant may make new adjudication application

Part 6 - Claimant's Right to Suspend Building Work or Construction

Work or Supply

29. Claimant may suspend work or supply

Part 7 - Administration

Division 1 - Security of Payments Official

30. Security of Payments Official

Division 2 - Nominating authorities

31. Nominating authorities

32. Nominating authorities may charge fees

33. Nominating authorities to provide information

34. Nominating authority to advise Security of Payments Official if

certain legal processes begin

Division 3 - Adjudicators

35. Disqualification of adjudicator for interest

36. Request and review in relation to disqualification of

adjudicator

37. Adjudicator's fees

38. Information in relation to determinations of adjudication

applications

Division 4 - Protection from liability

39. Protection from liability

Part 8 - Miscellaneous

40. Service of notices

41. Regulations

42. Status of notices

43. Administration of Act

44. Transitional matters

Part 9 - Consequential amendments and repeal

45. Consequential amendments

46. Legislation repealed

Schedule 1 - Consequential Amendments

Schedule 2 - Legislation repealed

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Building and Construction Industry Security of Payment Act 2009

An Act to provide for progress payments to be made in a timely fashion

under building or construction contracts or contracts for the supply of

goods and services relating to building or construction, for disputes in

relation to such payments to be adjudicated in a timely and informal way,

to repeal the Contractors' Debts Act 1939, and for related purposes

[Royal Assent 17 December 2009]

Be it enacted by His Excellency the Governor of Tasmania, by and with the

advice and consent of the Legislative Council and House of Assembly, in

Parliament assembled, as follows:

PART 1 - Preliminary

1. Short title

This Act may be cited as the Building and Construction Industry Security of

Payment Act 2009.

2. Commencement

This Act commences on the day on which this Act receives the Royal Assent.

3. Object

The object of this Act is to ensure that any person who undertakes to carry

out building work or construction work (or who undertakes to supply

building or construction-related goods and services) under a building or

construction contract, including such a contract that relates to a

residential structure, is entitled to receive, and is able to recover,

progress payments in relation to the work or goods and services.

4. Interpretation

In this Act, unless the contrary intention appears

"adjudicated amount" means the amount of a progress payment that an

adjudicator determines to be payable under section 25;

"adjudication application" means an application made under section 21;

"adjudication certificate" means an adjudication certificate issued

under section 26(4);

"adjudication fees" means fees or expenses charged by a nominating

authority under section 32 or by an adjudicator under section 37;

"adjudication response" means a response lodged with an adjudicator

under section 23;

"adjudicator", in relation to an adjudication application, means a

person who has accepted under section 22(4) a referral of the

adjudication application;

"building" includes a proposed building or part of a building and a

building that is able to be relocated;

"Building Code of Australia" means the code produced by the Australian

Building Code Board relating to the design and construction of

buildings;

"building or construction contract" means a contract, or other

arrangement, under which one party undertakes to carry out building

work or construction work for, or to supply building or

construction-related goods and services to, another party;

"building or construction-related goods and services" has the meaning

it has in section 6;

"building work or construction work" has the meaning it has in

section 5;

"business day" means any day other than a Saturday or Sunday or a

statutory holiday as defined in the Statutory Holidays Act 2000;

"claimant" means a person by whom a payment claim is served under

section 17;

"claimed amount" means

(a) an amount of a progress payment claimed, in accordance with

section 17, in a payment claim, to be due for building work or

construction work carried out or for building or

construction-related goods and services supplied; or

(b) any other amount specified in the payment claim in accordance

with section 17(3);

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

the progress payment as determined in accordance with section 15;

"fire safety system" includes any one or more of the following:

(a) booster assemblies;

(b) fire mains, hydrants and hose reels;

(d) fire and smoke alarms;

(e) fire control centres;

(f) structures or devices to mitigate the fire hazard in respect of

special fire hazard buildings within the meaning of the Building

Regulations 2004;

(g) stairwell pressurisation;

(h) air-handling systems;

(i) smoke and heat vents;

"nominating authority" means a person who is authorised to be a

nominating authority under section 31(2);

"payment claim" means a claim made under section 17;

"payment schedule" means a payment schedule provided to a claimant

under section 18;

"plumbing installation" means

(a) a system of water supply; or

(b) a system of sewage or sullage drainage or disposal; or

(d) an on-site waste water management system;

"progress payment" means a progress payment to which a person is

entitled under section 12 and includes

(a) the final payment for building work or construction work

carried out, or for building or construction-related goods and

services supplied, under a building or construction contract; and

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

construction work, or supplying building or construction-related

goods and services, under a building or construction contract; and

"recognised financial institution" means

(a) an authorised deposit-taking institution; or

(b) a "body regulated by APRA" within the meaning of the Australian

Prudential Regulation Authority Act 1998 of the Commonwealth; or

of persons or bodies;

"reference date", in relation to a building or construction contract,

means

(a) a date determined by, or in accordance with, the terms of the

contract as the date on which a claim for a progress payment may be

made in relation to

(i) work carried out, or undertaken to be carried out, under

the contract; or

(ii) building or construction-related goods and services

supplied, or undertaken to be supplied, under the contract; or

(b) if the contract does not expressly provide for such a date, the

last day of each month in which

(i) building work or construction work is carried out under the

contract; or

(ii) building or construction-related goods and services are

supplied under the contract;

"residential structure" means a building or structure that is a class 1

or a class 10 building or structure within the meaning of the Building

Code of Australia, as in force from time to time;

"respondent" means a person on whom a payment claim is served under

section 17;

"road infrastructure" means

(a) any land that is to be used as a road (whether public or

private); or

(b) any land that is to be used as a footpath, bike path or public

thoroughfare for pedestrians or vehicles; or

with, such a road, path or thoroughfare, including

(i) kerbing, guttering, roundabouts, median strips and

barriers; and

(ii) parking places or facilities; and

(iii) bridges, viaducts and tunnels; and

(iv) other works carried out in, on, under or over a road, path

or thoroughfare;

"scheduled amount" means the amount of a progress payment that is

proposed to be made under a payment schedule;

"Security of Payments Official" means the person who, in accordance

with section 30, is the Security of Payments Official;

"structure" includes a proposed structure, part of a structure and a

temporary structure;

"temporary structure" includes any

(a) booth, tent or other temporary enclosure, whether or not a part

of the booth, tent or enclosure is permanent; and

(b) temporary seating structure; and

(d) temporary bridge; and

(e) structure that does not form part of the land and is temporary;

and

(f) structure of a prescribed type.

5. Meaning of "building work or construction work"

(1) For the purposes of this Act, "building work or construction

work" means any of the following:

(a) the construction, erection, re-erection, alteration, repair,

restoration, maintenance, extension, adding to, underpinning, removal,

demolition, or dismantling, of

(i) buildings; or

(ii) structures that form, or are to form, part of land;

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

extension, removal, demolition or dismantling of works that form, or

are to form, part of land, including

(i) walls; and

(ii) road infrastructure; and

(iii) energy infrastructure and telecommunications facilities; and

(iv) aviation landing facilities and railway infrastructure; and

(v) marine infrastructure, water and sewerage infrastructure,

drainage infrastructure, dams and canals and installations for the

purposes of irrigation, land drainage or coast or river protection;

and

(vi) structures, such as poles, wires and netting, erected to

support or protect agricultural, horticultural or forestry

products; and

(vii) structures (other than underground structures constructed to

enable access to minerals) to enable persons to gain access to

places on which agricultural, horticultural, forestry, tourist or

mining activities are being, or are to be, carried out;

structure or works, of systems, and services, that form, or are to

form, part of land, including

(i) heating, ventilation, air-conditioning and cooling systems; and

(ii) power supply, lighting and communication systems; and

(iii) passenger lifts and goods lifts; and

(iv) plumbing installations; and

(v) fire safety systems and security systems;

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

completes, work referred to in paragraph (a), (b) or (c), including

(i) site clearance, earth-moving, excavation, tunnelling, boring

and filling; and

(ii) the preparation of foundations; and

(iii) the erection, maintenance or dismantling of plant and

equipment; and

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

structure or works, whether the prefabrication is carried out

on-site or off-site; and

(v) site restoration, landscaping and the provision of road

infrastructure and other works to enable access to land or a part

of land;

(e) the internal or external cleaning of buildings, structures, or

works, that is carried out in the course of the construction,

alteration, repair, restoration, maintenance, extension, removal,

demolition or dismantling of the buildings, structure or works;

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

any building, structure or works;

(g) other work of a type prescribed to be a type of building work or

construction work for the purposes of this Act.

(2) Despite subsection (1), the following work is not building work

or construction work for the purposes of this Act:

(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 the construction of

underground works for the purpose of such extraction;

construction work for the purposes of this Act.

6. Meaning of "building or construction-related goods and services"

(1) For the purposes of this Act, "building or construction-related

goods and services", in relation to building work or construction work,

means any of the following:

(a) goods of the following kind:

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

structure or work arising from building work or construction work;

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

otherwise) for use in connection with the carrying out of building

work or construction work;

(b) services of the following kind:

(i) the provision of labour to carry out building work or

construction work;

(ii) architectural, design, land surveying, quantity surveying,

engineering, building surveying or project management services in

relation to building work or construction work;

(iii) inspection, reporting, or advisory, services provided in

respect of buildings, building systems and services, energy and

sustainability systems and services, geotechnical, engineering,

interior decoration, exterior decoration or landscape services

provided in relation to building work or construction work;

construction-related goods and services for the purposes of this Act.

(2) Despite subsection (1), "building or construction-related goods

and services" does not include goods or services of a type that is

prescribed to not be building or construction-related goods and services

for the purposes of this Act.

(3) A reference in this Act to building or construction-related goods

and services is to be taken to be a reference to building or

construction-related goods, building or construction-related services, or

both.

PART 2 - Application and Effect of Act in Relation to other Acts,

Contracts, &c.

7. Application of Act

(1) This Act applies to any building or construction contract,

whether the contract

(a) is written or oral; or

(b) is partly written and partly oral; or

Tasmania.

(2) This Act does not apply to a building or construction contract to

the extent to which it relates to building work or construction work

carried out outside this State.

(3) Despite subsection (2), this Act applies to any building or

construction contract in so far as the contract relates to the supply by a

person in this State of building or construction-related goods and

services, even though the goods and services are supplied in respect of

building work or construction work carried out outside this State.

(4) However, despite subsection (3), nothing in this Act is to be

taken to entitle a person to a payment if a claim for the payment has been

made under the law of another jurisdiction.

(5) Despite subsection (1), this Act does not apply to a building or

construction contract

(a) that forms part of a loan agreement, a contract of guarantee or a

contract of insurance, if the agreement or contract is an agreement or

contract under which a recognised financial institution undertakes

(i) to lend money or to repay money lent; or

(ii) to guarantee payment of money owing or repayment of money

lent; or

(iii) to provide an indemnity in respect of building work or

construction work carried out, or building or construction-related

goods and services supplied, under the building or construction

contract; or

(b) under which it is agreed that the consideration payable for

building work or construction work carried out under the contract, or

for building or construction-related goods and services supplied under

the contract, is to be calculated otherwise than by reference to the

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

supplied.

(6) This Act does not apply to a building or construction contract to

the extent to which it contains provisions under which a party

(a) undertakes to carry out building work or construction work; or

(b) undertakes to supply building or construction-related goods and

services

as an employee of the party for whom the work is to be carried out or the

goods and services are to be supplied, or as a condition of a loan

agreement with a recognised financial institution.

(7) This Act does not apply to a building or construction contract to

the extent to which it contains provisions under which a party undertakes

(a) to lend money or to repay money lent; or

(b) to guarantee payment of money owing or repayment of money lent; or

work carried out, or building or construction-related goods and

services supplied, under the building or construction contract.

(8) This Act does not apply to a building or construction contract,

or a class of building or construction contracts, prescribed to be a

contract or class of contracts to which this Act does not apply.

8. Act binds Crown

This Act binds the Crown in right of Tasmania and, so far as the

legislative power of Parliament permits, in all its other capacities.

9. Act does not limit other entitlements or remedies

This Act does not limit

(a) any other entitlement that a claimant may have under a building or

construction contract; or

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

other entitlement.

10. Effect on civil proceedings

(1) Subject to section 11, nothing in Part 4, 5, 6 or 7 affects any

right that a party to a building or construction contract

(a) may have under the contract; or

(b) may have under Part 3 in respect of the contract; or

omitted to be done under the contract.

(2) Nothing done under or for the purposes of Part 4, 5, 6 or 7

affects any civil proceedings arising under a building or construction

contract, whether under Part 4, 5, 6 or 7, except as provided by

subsection (3).

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

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

(a) must allow for an amount to be paid to a party to the contract,

under or for the purposes of Part 4, 5, 6 or 7, in any award or order

it makes in those proceedings; and

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

restitution of any amount so paid, and any other orders it thinks

appropriate, having regard to its decision in those proceedings.

11. Parties cannot contract out of Act

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

the contrary in any contract.

(2) A provision of a contract or other agreement, whether in writing

or not, is void if it is a provision

(a) under which the operation of this Act is, or is purported to be,

excluded, modified or restricted, or that has the effect of excluding,

modifying or restricting, the operation of this Act; or

(b) that may reasonably be construed as an attempt to deter a person

from taking action under this Act.

PART 3 - Rights to Progress Payments

12. Rights to progress payments

(1) A person

(a) who has undertaken to carry out building work or construction work

under a building or construction contract; or

(b) who has undertaken to supply building or construction-related goods

and services under a building or construction contract

is entitled, on and from each reference date, to a progress payment.

(2) The amount of the progress payment is to be the amount calculated

in accordance with the terms of the contract.

(3) However, if the contract does not expressly provide for the

calculation of the amount of the progress payment, the amount of the

progress payment is to be

(a) the amount calculated on the basis of the value of the building

work or construction work

(i) carried out before the reference date by the person under the

contract; or

(ii) undertaken to be carried out before the reference date by the

person under the contract; or

(b) the amount calculated on the basis of the value of the building or

construction-related goods and services

(i) supplied by the person under the contract before the reference

date; or

(ii) undertaken to be supplied by the person under the

contract before the reference date.

13. How value of building work or construction work, &c., to be determined

(1) The value of building work or construction work carried out under

a building or construction contract is to be determined in accordance with

the terms of the contract.

(2) However, if a building or construction contract does not

expressly determine the value of building work or construction work, or

specify how the value of building work or construction work is to be

determined, the value of the building work or construction work is to be

determined having regard to

(a) the contract price for the work, including any GST that may be

payable in relation to the work; and

(b) any other rates or prices set out in the contract; and

contract price, or any other rate or price set out in the contract, is

to be adjusted by a specific amount; and

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

the defect.

(3) The value of building or construction-related goods and services

supplied, or undertaken to be supplied, under a building or construction

contract is to be determined in accordance with the terms of the contract.

(4) However, if a building or construction contract does not

expressly determine the value of building or construction-related goods and

services, or specify how the value of building or construction-related

goods and services is to be determined, their value is to be determined

having regard to

(a) the contract price for the building or construction-related goods

and services; and

(b) any other rates or prices set out in the contract; and

contract price, or any other rate or price set out in the contract, is

to be adjusted by a specific amount; and

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

the defect.

(5) If building or construction-related goods and services consist of

materials and components that are to form part of any building, structure,

or work, arising from building work or 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 for

whom the building work or construction work is being carried out.

14. Liens over unpaid amounts

(1) If a progress payment becomes due and payable, the claimant is

entitled to exercise a lien in respect of the unpaid amount over any

unfixed plant or materials supplied by the claimant for use in connection

with the carrying out of the building work or construction work for the

respondent.

(2) A lien or charge

(a) over any unfixed plant or materials supplied by the claimant for

use in connection with the carrying out of the building work or

construction work for the respondent; and

(b) that existed before the date on which the progress payment becomes

due or payable

takes priority over a lien under subsection (1).

(3) Subsection (1) does not confer on the claimant any right against

a third party who is the owner of the unfixed plant or materials.

(4) A claimant is not entitled to exercise a lien under subsection

(1) in respect of an unpaid amount if the claimant receives the progress

payment in respect of the amount.

15. Due date for payment

(1) A progress payment under a building or construction contract

becomes due and payable on the date on which the payment becomes due and

payable in accordance with the terms of the contract.

(2) Despite subsection (1)

(a) if a contract does not expressly provide for when a progress

payment becomes due and payable; and

(b) a payment claim is made under section 17 in relation to the

progress payment

the progress payment becomes due and payable before the expiry of the

applicable day, as determined under section 19(3), in relation to the

claim.

(3) Interest is payable, on the unpaid amount of a progress payment

that has become due and payable, at the rate

(a) prescribed under the Supreme Court Civil Procedure Act 1932 in

respect of a judgment for money payable to a person; or

(b) specified in the building or construction contract

whichever is greater.

16. "Pay-when-paid" provisions of no effect

(1) In this section

"money owing", in relation to a building or construction contract,

means money owing for

(a) building work or construction work carried out, or undertaken

to be carried out, under the contract; or

(b) building or construction-related goods and services supplied,

or undertaken to be supplied, under the contract;

"pay-when-paid provision", of a building or construction contract,

means a provision of the contract

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

pay money 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 a part of that money; or

(b) that makes the due date for payment of money owing by the first

party to the second party dependent on the date on which payment of

the whole or a part of that money is made to the first party by the

third party; or

due date for payment of money owing, contingent or dependent on the

operation of another contract.

(2) A pay-when-paid provision of a building or construction contract

has no effect in relation to any payment for

(a) building work or construction work carried out, or undertaken to be

carried out, under the contract; or

(b) building or construction-related goods and services supplied, or

undertaken to be supplied, under the contract.

PART 4 - Payment Claims and Payment Schedules

17. Claims for payment may be made

(1) A person (in this Act referred to as a "claimant") who is, or who

claims to be, entitled to a progress payment under section 12 in respect of

a building or construction contract may serve a payment claim on the person

who is, or may be, liable under the contract to make the payment.

(2) A payment claim must

(a) be in writing; and

(b) be addressed to the person on whom it is served; and

(d) identify the building work or construction work, or building or

construction-related goods and services, to which the progress payment

relates, in sufficient detail to enable the person on whom it is served

to assess the claim; and

(e) specify the amount of the progress payment that the claimant claims

is due; and

(f) state that the claim is made under this Act; and

(g) include the prescribed details, if any.

(3) A payment claim may also include an amount

(a) that the respondent is liable to pay the claimant under section 29

(3); or

(b) that is held under the building or construction contract by the

respondent, as security or otherwise, and that the claimant claims is

due for release.

(4) A claimant must not serve more than one payment claim in respect

of each reference date under the building or construction contract.

(5) However, subsection (4) does not prevent the claimant from

including in a payment claim an amount that has been the subject of a

previous claim.

(6) A payment claim may be served only within whichever of the

following periods occurs later:

(a) the period determined by or in accordance with the terms of the

building or construction contract;

(b) the period of 12 months after

(i) the building work or construction work to which the claim

relates was last carried out; or

(ii) the building or construction-related goods and services to

which the claim relates were last supplied.

18. Schedules for payment may be provided to claimant

(1) A person (in this Act referred to as the "respondent") on whom a

payment claim is served by a claimant may provide to the claimant a payment

schedule in relation to the claim.

(2) A payment schedule

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

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

respondent proposes to make (in this Act referred to as the "scheduled

amount").

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

schedule must specify why the amount is less.

(4) If the amount is less because the respondent is withholding

payment of the claim for any reason, the schedule must specify the

respondent's reasons for withholding the payment.

19. Consequences of failing to provide payment schedule within relevant

period

(1) In this section

"building practitioner" means any of the following persons:

(a) a building practitioner, or an owner builder, within the

meaning of the Building Act 2000;

(b) a person who holds a practitioner's licence, or a contractor's

licence, under the Occupational Licensing Act 2005, authorising the

person to perform electrical work within the meaning of Part 1 of

Schedule 2 to that Act;

under the Plumbers and Gas-fitters Registration Act 1951 to perform

a class of plumbing work referred to in that Act;

(d) a person who holds a certificate of competency under the

Workplace Health and Safety Regulations 1998;

(e) a person who holds a subsisting certificate of registration

under the Plumbers and Gas-fitters Registration Act 1951 to perform

a class of gas-fitting referred to in that Act;

(f) a person who is registered as an architect under the Architects

Act 1929;

(g) a prescribed person;

"owner", in relation to land, means any one or more of the following:

(a) the person in whom is vested a fee simple in the land;

(b) if the land is not registered under the Land Titles Act 1980

and is subject to a mortgage, the person for the time being holding

the equity of redemption in that mortgage;

the life tenant;

(d) if the land is held under a lease for a term of not less than

99 years or for a term of not less than another prescribed period,

the person who is the lessee of the land;

(e) a person who has a prescribed interest in the land.

(2) If

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

(b) the respondent does not provide to the claimant a payment schedule

(i) before the end of the period in which the payment is required

to be made under the building or construction contract under which

the payment is to be made; or

(ii) before the expiry of the applicable day in relation to the

payment claim made to the respondent

whichever period expires earlier, 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.

(3) In subsection (2)(b)(ii), the applicable day in relation to a

payment claim made to the respondent

(a) is the day 20 business days after the payment claim is served on

the respondent, if

(i) the claim relates to a residential structure to be built on

land; and

(ii) the respondent is the owner of the land; and

(iii) the respondent is not a building practitioner; or

(b) is, in any other case, the day 10 business days after the payment

claim is served on the respondent.

(4) Subsection (5) applies to a claimant if the respondent

(a) becomes liable under subsection (2) to pay to the claimant the

claimed amount; and

(b) does not pay all of the claimed amount on or before the due date

for the progress payment to which the payment claim relates.

(5) If this subsection applies to a claimant, the claimant

(a) may

(i) apply to a court of competent jurisdiction to recover from the

respondent the unpaid part of the claimed amount, as a debt due to

the claimant; or

(ii) make an adjudication application under section 21 in relation

to the payment claim; and

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

suspend carrying out building work or construction work, or supplying

goods and services, under the building or construction contract.

(6) A notice served under subsection (5)(b) must specify that the

notice is made under this Act.

(7) If an application is made by a claimant to a court in accordance

with subsection (5)(a)(i) to recover from the respondent, as a debt, the

unpaid part of the claimed amount specified in a payment claim, the court

may give judgment entitling the claimant to recover the unpaid part as a

debt due and payable, if the court is satisfied that the respondent

(a) is liable under subsection (2) to pay to the claimant the claimed

amount; and

(b) has not paid all of the claimed amount on or before the due date

for the progress payment to which the payment claim relates.

(8) A respondent in proceedings under this section in a court of

competent jurisdiction is not entitled in those proceedings

(a) to bring a cross-claim against the claimant; or

(b) to raise a defence in relation to matters arising under, or

relating to the subject matter of, the building or construction

contract.

20. Consequences of not paying claimant in accordance with payment schedule

(1) Subsection (2) applies to a claimant if

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

(b) the respondent provides a payment schedule to the claimant

(i) within the period in which the payment is required to be made

under the building or construction contract under which the payment

is to be made; or

(ii) within the period before the expiry of the applicable day

determined under section 19 in relation to the payment claim

whichever period expires earlier; and

respondent proposes to pay to the claimant; and

(d) the respondent does not pay to the claimant all of the scheduled

amount on or before the due date for the progress payment to which the

payment claim relates.

(2) If this subsection applies to a claimant, the claimant

(a) may

(i) apply to a court of competent jurisdiction to recover from the

respondent the unpaid part of the scheduled amount, as a debt due

to the claimant; or

(ii) make an adjudication application under section 21 in relation

to the payment claim; and

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

suspend carrying out building work or construction work, or supplying

goods and services, under the building or construction contract.

(3) A notice served under subsection (2)(b) must specify that the

notice is made under this Act.

(4) If an application is made by a claimant to a court in accordance

with subsection (2)(a)(i) to recover from the respondent, as a debt, the

unpaid part of the scheduled amount specified in a payment claim, the court

may give judgment entitling the claimant to recover the unpaid part as a

debt due and payable, if the court is satisfied that

(a) subsection (2) applies to the claimant; and

(b) the respondent has not paid all of the scheduled amount on or

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

relates.

(5) A respondent in proceedings under this section in a court of

competent jurisdiction is not entitled in those proceedings

(a) to bring a cross-claim against the claimant; or

(b) to raise a defence in relation to matters arising under, or

relating to the subject matter of, the building or construction

contract.

PART 5 - Adjudication of Disputes

21. Applications for adjudication

(1) A claimant may, in writing, apply to a nominating authority,

chosen by the claimant, to have a payment claim adjudicated.

(2) A claimant may only make an application under subsection (1) if

(a) the respondent provided a payment schedule under section 18 but the

scheduled amount specified in the schedule is less than the claimed

amount specified in the payment claim; or

(b) the respondent provided a payment schedule under section 18 but did

not pay to the claimant all of the scheduled amount by the due date for

payment of the amount; or

under section 18 and did not pay all of the claimed amount by the due

date for payment of the amount.

(3) An application made under subsection (1) pursuant to

(a) subsection (2)(a) must be made within 10 business days after the

claimant receives the payment schedule; or

(b) subsection (2)(b) must be made within 20 business days after the

due date for payment.

(4) A claimant may only make an application under subsection (1)

pursuant to subsection (2)(c) if

(a) the claimant has notified the respondent, within 20 business days

after the due date for payment, that

(i) the claimant intends to make the application; and

(ii) the respondent may provide a payment schedule to the claimant

within 5 business days after the notice is given; and

(b) the respondent has not provided a payment schedule within the

period of 5 business days since the notice was given to the respondent;

and

the 5-day period referred to in paragraph (b).

(5) An application made under subsection (1)

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

to which it relates; and

(b) must be accompanied by the application fee, if any, that the

nominated authority may have determined; and

applicant thinks fit.

(6) The application fee may not be greater than an amount, if any,

determined by the Minister, by notice published in the Gazette, to be the

maximum amount of the application fee.

(7) A copy of an application made under subsection (1) must be served

on the respondent.

(8) A claimant may, at any time before an application made under

subsection (1) has been determined by an adjudicator, withdraw the

application by notice served on the adjudicator and the respondent.

(9) A claimant who withdraws an application under subsection (8) is

liable to pay any fees and expenses to which an adjudicator is entitled

under section 37(1) in relation to the application.

22. Appointment of adjudicator

(1) A nominating authority to which an adjudication application is

made in relation to a building or construction contract is to refer the

matter as soon as practicable to a person who is a qualified adjudicator.

(2) A person is a qualified adjudicator if the person is a natural

person with the qualifications, expertise and experience, if any,

determined by the Security of Payments Official to be required.

(3) A nominating authority to which an adjudication application is

made in relation to a building or construction contract may not refer the

matter to a qualified adjudicator

(a) if the adjudicator is a party to the building or construction

contract; or

(b) in circumstances prescribed for the purposes of this subsection.

(4) A qualified adjudicator may accept an adjudication application

referred to the adjudicator under subsection (1) by serving notice of

acceptance on the claimant and the respondent in relation to the

application.

23. Response by respondent to adjudication application

(1) A respondent who has provided a payment schedule to the claimant

within the period specified in section 19(2)(b) or section 21(4)(b) may

lodge with the adjudicator a response to the claimant's adjudication

application.

(2) An adjudication response may be lodged under subsection (1)

within

(a) 10 business days after receiving a copy of the adjudication

application; or

(b) 5 business days after receiving notice of an adjudicator's

acceptance of the application

whichever period expires later.

(3) An adjudication response

(a) must be in writing; and

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

respondent thinks fit.

(4) A respondent must not include in an adjudication response reasons

for withholding payment, unless those reasons have already been included in

the payment schedule provided to the claimant.

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

claimant.

(6) An adjudicator may not consider an adjudication response if it

was made after the end of the period under subsection (2) in which the

respondent may lodge an adjudication response.

24. Adjudication proceedings

(1) An adjudicator is to determine an adjudication application as

soon as practicable and, in any case

(a) within

(i) 10 business days after the date on which the adjudicator

receives the adjudication response; or

(ii) if the respondent lodged a payment schedule in relation to the

payment claim to which the application relates, 10 business days

after the date by which the respondent may, under section 23, lodge

with the adjudicator an adjudication response; or

(iii) if the respondent did not lodge a payment schedule in

relation to the payment claim to which the application relates, 10

business days after the date on which the adjudicator accepted the

application under section 22(4); or

(b) within a further period, if any, agreed to by the claimant and the

respondent.

(2) In adjudication proceedings

(a) an adjudicator may request further written submissions from a party

to the proceedings; and

(b) if an adjudicator requests a party to make further written

submissions, the adjudicator must give the other party an opportunity

to comment on the submissions.

(3) An adjudicator may specify periods in which submissions and

comments may be made by parties to the adjudication proceedings.

(4) An adjudicator may call a conference of the parties to

adjudication proceedings and may invite to attend the conference those

persons who, in the opinion of the adjudicator, have an interest in, or may

assist in the consideration of, the matter to which the proceedings relate.

(5) A conference is to be conducted informally and may not be

attended by a legal representative of any party.

(6) An adjudicator may carry out an inspection of any matter that

relates to a payment claim to which the adjudication proceedings relate.

25. Determination of adjudication application

(1) An adjudicator is to determine an adjudication application

(a) by determining whether or not all or part of a progress payment is

to be paid by the respondent to the claimant; and

(b) if the adjudicator determines that all or part of a progress

payment is to be paid by the respondent to the claimant, by

determining

(i) the amount of the payment; and

(ii) the date on which the payment became or becomes payable; and

(iii) the rate of interest payable on the amount.

(2) In determining an adjudication application, an adjudicator is to

consider only the following matters:

(a) the provisions of this Act;

(b) the provisions of the building or construction contract to which

the application relates;

all submissions (including relevant documentation) that have been duly

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 duly 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) An adjudicator may determine an adjudication application even if

(a) a party fails to make a submission or comment within the period

specified by the adjudicator; or

(b) a party fails to attend a conference called by the adjudicator.

(4) The adjudicator's determination

(a) must be in writing; and

(b) must include the reasons for the determination, unless the claimant

and the respondent have both requested the adjudicator not to include

the reasons in the determination.

(5) If an adjudicator, in determining an adjudication application,

has determined in accordance with section 13 the value of building work or

construction work carried out, or of building or construction-related goods

and services supplied, under a building or construction contract, the same

value is to be determined for that work or those goods and services in any

determination of a subsequent adjudication application in relation to the

contract.

(6) Despite subsection (5), a different value may be determined if a

party to the subsequent adjudication application satisfies the adjudicator

of that application that the value of the works or goods and services has

changed since the value was first determined.

(7) An adjudicator may determine that a party to an adjudication is

required to pay to another party to the adjudication some or all of the

costs that have been incurred by the other party because of frivolous or

vexatious conduct, or the making of unfounded submissions, by the

first-mentioned party.

(8) An adjudicator may, on his or her own initiative or on the

application of a claimant or respondent, correct

(a) a clerical mistake in a determination under this section; or

(b) an error arising from an accidental slip or omission in a

determination under this section; or

description of a person, thing or matter referred to in a determination

under this section; or

(d) a defect of form in a determination under this section.

26. Respondent must pay amount determined by adjudicator

(1) If an adjudicator determines that a respondent is required to pay

an adjudicated amount, the respondent must pay that amount to the claimant

before

(a) the end of the period of 5 business days immediately after the date

on which the adjudicator's determination is served on the respondent;

(b) a later date, if any, determined under section 25(1)(b)(ii).

(2) If a respondent does not pay to the claimant all of the

adjudicated amount in accordance with subsection (1), the claimant may do

either or both of the following:

(a) request the nominating authority to which the adjudication

application was made to issue an adjudication certificate under this

section;

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

suspend carrying out building work or construction work, or supplying

building or construction-related goods and services, under the building

or construction contract.

(3) A notice under subsection (2)(b) must specify that it is made

under this Act.

(4) A nominating authority that receives a request under subsection

(2)(a) in relation to an adjudication application may issue an adjudication

certificate in relation to the application.

(5) An adjudication certificate issued under this section must

specify that it is made under this Act and specify 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 due to be

paid to the claimant.

(6) If an amount of interest that is due and payable on the

adjudicated amount is not paid by the respondent

(a) the claimant may request the nominating authority to specify in the

adjudication certificate the amount of interest payable; and

(b) the amount so specified is added to, and becomes part of, the

adjudicated amount.

(7) If the claimant has paid the respondent's share of the

adjudication fees in relation to the adjudication but has not been

reimbursed by the respondent for that amount

(a) the claimant may request the nominating authority to specify in the

adjudication certificate that amount; and

(b) the amount so specified is added to, and becomes part of, the

adjudicated amount.

27. Adjudication certificate may be filed as judgment for debt

(1) An adjudication certificate may be filed as a judgment for a debt

in a court of competent jurisdiction.

(2) An adjudication certificate that is filed as a judgment for a

debt in a court of competent jurisdiction is enforceable as a judgment for

a debt.

(3) An adjudication certificate may only be filed under this section

if it is accompanied by an affidavit by the claimant stating that a part of

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

filed.

(4) If the affidavit specifies that part of the adjudicated amount

has not been paid, the judgment is only for that part of that amount.

(5) If the respondent commences proceedings to have the judgment set

aside, the respondent

(a) is not, in those proceedings, entitled

(i) to bring a cross-claim against the claimant; or

(ii) to raise a defence in relation to matters arising under, or

relating to the subject matter of, the building or construction

contract; or

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

(b) must pay into the court as security the unpaid part of the

adjudicated amount, pending the final determination of those

proceedings.

28. When claimant may make new adjudication application

(1) Subsection (2) applies to a claimant if

(a) a claimant fails to receive, within 4 business days after the

claimant makes an adjudication application, an adjudicator's notice of

acceptance of the application under section 22(4); or

(b) an adjudicator in relation to an adjudication application fails to

determine the application within the time allowed by section 24.

(2) If this subsection applies to a claimant, the claimant

(a) may withdraw the adjudication application made to the adjudicator,

by serving notice in writing on the adjudicator or the nominating

authority to whom the application was made; and

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

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

at any time within 5 business days after the claimant becomes entitled to

withdraw the previous application under subsection (2).

PART 6 - Claimant's Right to Suspend Building Work or Construction Work or

Supply

29. Claimant may suspend work or supply

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

construction work, or the supply of building or construction-related goods

and services, under a building or construction contract, if at least 2

business days have passed since the claimant served notice on the

respondent under section 19, 20 or 26 of the claimant's intention to do so.

(2) A claimant may not suspend the carrying out of building work or

construction work, or the supply of building or construction-related goods

and services, under a building or construction contract, after the end of

the period of 3 business days immediately after the date on which the

claimant receives payment for the amount payable by the respondent under

section 19, 20 or 26.

(3) If a claimant

(a) in accordance with this section, suspends the carrying out of

building work or construction work, or the supply of building or

construction-related goods and services, under a building or

construction contract; and

(b) incurs loss or expenses as a result of the removal, by the

respondent, from a contract, of a part of the work or supply

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

expense.

(4) A claimant who, in accordance with this section, suspends the

carrying out of building work or construction work, or the supply of

building or construction-related goods and services, under a building or

construction contract, is not liable for loss or damage suffered by the

respondent, or a person claiming through a respondent, as a consequence of

the claimant not carrying out the work, or supplying the services, during

the period of suspension.

PART 7 - Administration

Division 1 - Security of Payments Official

30. Security of Payments Official

(1) The Security of Payments Official for the purposes of this Act is

to be

(a) the Director of Building Control within the meaning of the Building

Act 2000; or

(b) if the Minister appoints another person under subsection (2), that

person.

(2) Subject to and in accordance with the State Service Act 2000, the

Minister may appoint a person to be the Security of Payments Official for

the purposes of this Act.

Division 2 - Nominating authorities

31. Nominating authorities

(1) A person may apply to the Security of Payments Official to be

authorised to be a nominating authority.

(2) The Security of Payments Official may, if he or she receives an

application under subsection (1), authorise to be a nominating authority a

person specified in the application.

(3) A person who is authorised to be a nominating authority is so

authorised for a period of 3 years from the date of the authorisation, but

may be reauthorised.

(4) The Security of Payments Official may, by notice in writing to a

person authorised to be a nominating authority

(a) impose a condition on the authorisation; or

(b) vary a condition imposed on the authorisation; or

(5) The Security of Payments Official may only

(a) impose a condition on the authorisation of a person to be a

nominating authority; or

(b) vary a condition imposed on the authorisation of a person to be a

nominating authority

inviting the person to show cause why the condition ought not be

imposed or so varied; and

(d) the person has, for a period of at least 14 days from the date on

which the notice under paragraph (c) was given, been given the

opportunity to show cause why the condition ought not be imposed or so

varied; and

(e) the Security of Payments Official has considered any reasons

provided to him or her by the person as to why the condition ought not

be imposed or so varied.

(6) The Security of Payments Official may

(a) specify a maximum number of persons who may be authorised to be

nominating authorities; and

(b) refuse to authorise a person to be a nominating authority if the

maximum number of persons have been authorised to be nominating

authorities; and

if the Security of Payments Official is satisfied that the nominating

authority

(i) has failed to comply with a request made to the authority under

section 33(1); or

(ii) has contravened a condition imposed on the authorisation of

the person to be a nominating authority; or

(iii) has otherwise failed to comply with a requirement of this

Act.

(7) A person may apply to the Magistrates Court (Administrative

Appeals Division) Act 2001 for a review of a decision by the Security of

Payments Official to

(a) refuse to authorise the person to be a nominating authority; or

(b) impose a condition on the authorisation of the person to be a

nominating authority; or

nominating authority.

32. Nominating authorities may charge fees

(1) A nominating authority may charge an amount for any service

provided by the authority in connection with an adjudication application

made to the authority.

(2) An amount that may be charged by a nominating authority for a

service must not be more than the amount, if any, determined by the

Minister by notice published in the Gazette.

(3) The claimant and respondent are

(a) jointly and severally liable to pay an amount that is charged by a

nominating authority in connection with an adjudication application

made to the authority by the claimant; and

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

proportions or, if the adjudicator in relation to the application

determines different proportions, in the proportions so determined.

33. Nominating authorities to provide information

(1) The Security of Payments Official may request a nominating

authority to provide to him or her information in relation to the

activities of the authority under this Act, including information about any

amounts charged by the authority under this Act.

(2) A nominating authority must comply with a request of the Security

of Payments Official under subsection (1).

34. Nominating authority to advise Security of Payments Official if certain

legal processes begin

A nominating authority must notify the Security of Payments Official if the

authority becomes aware that an application has been made to a court in

relation to a building or construction contract in relation to which an

adjudication application has been made to the authority.

Division 3 - Adjudicators

35. Disqualification of adjudicator for interest

(1) An adjudicator in relation to an adjudication application is

disqualified from adjudicating the application if he or she has a material

personal interest in a building or construction contract, dispute, or party

to the contract, to which the application relates.

(2) As soon as practicable after becoming aware that he or she is

disqualified from adjudicating an application, an adjudicator must

(a) cease to deal with the application; and

(b) serve notice in writing on the claimant and the respondent,

specifying that the adjudicator is disqualified from adjudicating the

application.

(3) An adjudicator who gives notice under subsection (2) in relation

to an application must give notice in writing of the disqualification to

the nominating authority that referred the application to him or her.

(4) Any decision of an adjudicator, in relation to an adjudication

application, is void if the adjudicator is disqualified from adjudicating

the application.

(5) Despite section 37(4), the adjudicator is entitled to any fees or

charges to which he or she would, but for that subsection, be entitled, in

relation to the adjudication application, in respect of the services

provided by him or her before he or she ought to have been aware that he or

she was disqualified under this section.

(6) As soon as practicable after a nominating authority becomes aware

that an adjudicator has ceased to deal with an adjudication application

because he or she is disqualified from adjudicating the application, the

nominating authority must refer the application to another adjudicator

under section 22.

(7) If a respondent receives notice under section 22(4) of the

acceptance of an adjudication application by an adjudicator (the "new

adjudicator") to whom the application has been referred under subsection

(6), an adjudication response provided to the previous adjudicator under

section 23 is of no effect unless it is provided under section 23 to the

new adjudicator.

(8) The nominating authority is not entitled to charge any amount

under section 32 in relation to the referral of an application to another

adjudicator in accordance with subsection (6).

36. Request and review in relation to disqualification of adjudicator

(1) A party to an adjudication application may, before the

adjudicator in relation to the application has determined the application,

by notice in writing to the adjudicator, request the adjudicator to take

the actions specified in section 35(2), because, in the party's opinion,

the adjudicator is disqualified from adjudicating the application.

(2) A party to an adjudication application who makes a request to an

adjudicator under subsection (1) must provide to the adjudicator

particulars as to the grounds on which the party is of the opinion that the

adjudicator is disqualified from adjudicating the application.

(3) Within 7 days after receiving a notice under subsection (1), an

adjudicator in relation to an adjudication application must

(a) take the actions specified in section 35(2); or

(b) refuse to take the actions specified in section 35(2).

(4) If, within 7 days after receiving a notice under subsection (1),

an adjudicator fails to take the actions specified in section 35(2), a

party to the adjudication application may apply to the Magistrates Court

(Administrative Appeals Division) for a review of the decision of the

adjudicator not to take those actions.

(5) If an application is made under subsection (4) in respect of an

adjudicator, a party to the adjudication application is not required to

take any action in respect of a determination of the adjudicator under

section 25 in relation to the adjudication application

(a) until after the review is determined; and

(b) unless the decision of the adjudicator is upheld on the review.

(6) A review of a decision by an adjudicator that is conducted by the

Magistrates Court (Administrative Appeals Division) may only relate to the

grounds provided to the adjudicator under subsection (2).

37. 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, that is agreed between the

adjudicator and the parties to the adjudication; or

(b) if no amount is agreed between the adjudicator and the parties to

the adjudication, the amount, by way of fees and expenses, that is

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

the adjudicator.

(2) If a decision is made under the Magistrates Court (Administrative

Appeals Division) Act 2001

(a) to uphold a decision by an adjudicator under section 36 not to take

the action specified in section 35(2), the adjudicator may charge the

person who applied for the review the costs incurred by the adjudicator

in relation to the review, unless the court has, under that Act,

ordered those costs to be paid by a person other than the adjudicator;

(b) not to uphold a decision by an adjudicator under section 36 not to

take the action specified in section 35(2), the adjudicator may not

pass on to the parties to the adjudication application any costs

incurred by the adjudicator.

(3) The claimant and respondent are

(a) jointly and severally liable to pay an amount that is charged by an

adjudicator under subsection (1); and

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

proportions or, if the adjudicator in relation to the application

determines different proportions, in the proportions so determined.

(4) An adjudicator is not entitled to be paid fees or expenses in

connection with the adjudication of an adjudication application if he or

she fails, within the time allowed by section 24, to determine the

application (other than because the application is withdrawn or the dispute

between the claimant and respondent is otherwise resolved).

(5) Subsection (4) does not apply

(a) if the adjudicator refuses to notify the parties of his or her

determination until his or her fees or expenses are paid; or

(b) in other circumstances that are prescribed for the purposes of this

paragraph.

38. Information in relation to determinations of adjudication applications

(1) An adjudicator is to provide a copy of his or her determination

of an adjudication application under section 25 to the nominating authority

that referred the application to the adjudicator.

(2) A nominating authority to which a determination is provided under

subsection (1) must forward a copy of the determination to the Security of

Payments Official in the manner and form required by the Official.

(3) The Security of Payments Official is, by 1 March in a year, to

submit to the Building Regulation Advisory Committee established under the

Building Act 2000 an annual report consisting of

(a) a report in respect of the operation of the Act in the previous

calendar year; and

(b) details of the fees and expenses paid to adjudicators during the

calendar year; and

or operations under this Act, could be improved.

Division 4 - Protection from liability

39. Protection from liability

(1) No action lies against the Security of Payments Official or any

other person in relation to anything done or omitted to be done by a

nominating authority in good faith

(a) in performing the functions of the Security of Payments Official,

or exercising the powers of the Security of Payments Official, under

this Act; or

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

done in the performance of the functions, or the exercise of the

powers, of the Security of Payments Official under this Act.

(2) No action lies against a nominating authority or any other person

in relation to anything done or omitted to be done by the nominating

authority in good faith

(a) in performing the functions of the authority, or exercising the

powers of the authority, under this Act; or

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

done in the performance of the functions, or the exercise of the

powers, of the nominating authority under this Act.

(3) No action lies against an adjudicator in relation to anything

done or omitted to be done by the adjudicator in good faith

(a) in performing his or her functions, or exercising his or her

powers, 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, or the exercise

of the adjudicator's powers, under this Act.

PART 8 - Miscellaneous

40. Service of notices

A notice or other document is effectively served under this Act if

(a) in the case of a natural person, it is

(i) given to the person; or

(ii) left at, or sent by post to, the person's postal or

residential address or place or address of business or employment

last known to the server of the notice or other document; or

(iii) faxed to the person's fax number; or

(iv) emailed to the person's email address, if the person has

agreed to service by email; or

(v) delivered to the person by another electronic method, if the

person has agreed to service by the method; and

(b) in the case of any other person, it is

(i) left at, or sent by post to, the person's principal or

registered office or principal place of business; or

(ii) faxed to the person's fax number; or

(iii) emailed to the person's email address, if the person has

agreed to service by email; or

(iv) delivered to the person by another electronic method, if the

person has agreed to service by the method.

41. Regulations

(1) The Governor may make regulations for the purposes of this Act.

(2) The regulations may be made so as to apply differently according

to the factors specified in the regulations.

(3) The regulations may

(a) provide that a contravention of any of the regulations is an

offence; and

(b) in respect of such an offence, provide for the imposition of a fine

not exceeding 50 penalty units and, in the case of a continuing

offence, a further fine not exceeding 10 penalty units for each day

during which the offence continues.

42. Status of notices

A notice under this Act is not a statutory rule for the purposes of the

Rules Publication Act 1953.

43. Administration of Act

Until provision is made in relation to this Act by order under section 4 of

the Administrative Arrangements Act 1990

(a) the administration of this Act is assigned to the Minister for

Workplace Relations; and

(b) the department responsible to that Minister in relation to the

administration of this Act is the Department of Justice.

44. Transitional matters

(1) This Act does not apply to or in relation to a contract entered

into before the commencement of this section.

(2) Despite the repeal of the Contractors' Debts Act 1939 by this

Act, that Act continues to apply in respect of any attachment notice that

is issued by a court before the day on which this section commences and to

any payment into court of money pursuant to such a notice.

PART 9 - Consequential amendments and repeal

45. Consequential amendments

The legislation specified in Schedule 1 is amended as specified in that

Schedule.

46. Legislation repealed

The legislation specified in Schedule 2 is repealed.

SCHEDULE 1 - Consequential Amendments

Section 45

Judicial Review Act 2000

1. Schedule 1 is amended by inserting after item 6 the following item:

7. A decision made by an adjudicator under the Building and

Construction Industry Security of Payment Act 2009.

SCHEDULE 2 - Legislation repealed

Section 46

Contractors' Debts Act 1939 (No. 49 of 1939)

[Second reading presentation speech made in:

House of Assembly on 4 NOVEMBER 2009

Legislative Council on 18 NOVEMBER 2009]