Scott Williams, Senior Lawyer

The NSW Gov­ern­ment is cur­rent­ly seek­ing pub­lic and stake­hold­er feed­back on pro­posed reforms to the Build­ing and Con­struc­tion Indus­try Secu­ri­ty of Pay­ment Act 1999 (Act).

The Build­ing and Con­struc­tion Indus­try Secu­ri­ty of Pay­ment Act 1999 (Act) aims to ensure that a per­son can receive pay­ments under a con­struc­tion con­tract for car­ry­ing out con­struc­tion work or pro­vid­ing goods and ser­vices relat­ed to con­struc­tion work.

The Act is designed to facil­i­tate prompt pay­ment for con­trac­tors and sub­con­trac­tors and pro­vide a fair and quick process for res­o­lu­tion of pay­ment dis­putes.

A dis­cus­sion paper regard­ing reforms to the oper­a­tion of the Act was released in late 2015. The pro­posed reforms fol­low a con­sid­er­able peri­od of con­sul­ta­tion with stake­hold­ers since this time.

The stake­hold­er feed­back revealed that while there is strong sup­port for this Act to con­tin­ue, there is room for improve­ment with­in the Act to ensure that it more effec­tive­ly meets its objec­tives.

The key reforms include:

  • Over­haul­ing the def­i­n­i­tion of ‘ref­er­ence date’ to estab­lish a statu­to­ry min­i­mum month­ly enti­tle­ment to a progress payment/payment claim;
  • Estab­lish­ing a statu­to­ry enti­tle­ment to make a final progress pay­ment after ter­mi­na­tion of the con­tract;
  • Short­en­ing pay­ment due dates;
  • Rein­sert­ing the require­ment for the endorse­ment of pay­ment claims as being made under the Act;
  • Reform for inspec­tion of trust account records to increase trans­paren­cy to sub­con­trac­tors;
  • Giv­ing the Min­is­ter the abil­i­ty to make a Code of Prac­tice for Autho­rised Nom­i­nat­ing Author­i­ties, which are respon­si­ble for receiv­ing adju­di­ca­tion appli­ca­tions and appoint­ment adju­di­ca­tors;
  • Giv­ing the Supreme Court the pow­er to sev­er and remit adju­di­ca­tion deter­mi­na­tions;
  • Expand­ing inves­tiga­tive and enforce­ment pow­ers in rela­tion to com­pli­ance with the Act.

Con­sul­ta­tion on the pro­posed amend­ment bill and the con­sul­ta­tion paper clos­es on 18 Sep­tem­ber 2018.

If you would like to dis­cuss any issues you may have with respect to The Build­ing and Con­struc­tion Indus­try Secu­ri­ty of Pay­ment Act 1999 (Act), please con­tact Scott Williams, Senior Lawyer, on 02 6583 0427 or swilliams@dohlaw.com.au.

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