Adjudication in Queensland over Christmas

If you are a claimant and you are considering making a payment claim or an adjudication applications under the Building and Construction Industry Payments Act (“BCIPA”) during the holiday period, you need to be aware of and consider the close out period over Christmas and New Year.

In the counting of days under the BCIPA,’ business days’ are required to be understood precisely. The BCIPA defines a ‘business day’ as not including:

  • A Saturday or Sunday; or
  • A public holiday, special holiday or bank holiday in the place in which any relevant act is to be or may be done; or
  • Any day occurring within any of the following periods:
    • 22 to 24 December;
    • 27 to 31 December;
    • 2 to 10 January.

In short, the days between Wednesday 21 December 2016 and Wednesday 11 January 2017 (19 calendar days) are not ‘business days’ and therefore will not be counted in any time period under the BCIPA. BCIPA has the longest shut down period of any security of payment legislation.

Understanding the holiday ‘shut down’ period may be vital in your adjudication or payment claim being successful.

Remember, if in doubt, contact Adjudicate Assist

QBCC application form forms part of the Adjudication Application

The Queensland Building and Construction Commission (“QBCC”) requires claimants to complete the QBCC Adjudication Application form (Form 6, Version 2) before an application will be accepted. The form can be filled in on line or downloaded and filled in and submitted with the application documents.

Prior to the December 2014 Amendments to the BCIPA each individual ANA had its own adjudication application form for administrative purposes.

The difference between the pre and post December 2014 adjudication application form is hidden in the detail.

Form 6 and the current legislation

Under the current legislation the adjudication application form forms part of the adjudication application. Section 21(3)(a) of the Act requires the adjudication application to be in the approved form.

QBCC Form 6, Version 2 relevantly states: 

  • At page 1 – ‘(This is an approved form to be used for an application for adjudication of a payment claim made under the Building and Construction Industry Payments Act 2004 (Qld) hereinafter referred to as ‘the Act’)’
  • At page 1 – ‘The documents attached to or submitted with this application form part of this application.’
  • At page 1 – ‘You are to serve a full copy of this application for adjudication onto the respondent before the application can be decided by an adjudicator.’
  • At page 5 – ‘In applying for adjudication the claimant agrees that: The claimant is required to serve a complete copy of the adjudication application (including all submissions and attachments) to the respondent.’

Accordingly, Form 6, Version 2 is an essential requirement of a valid adjudication application.

As a consequence, when the claimant serves the respondent with a copy of the adjudication application it MUST include a copy of the adjudication application form and if it does not, the respondent will not have been served with a complete copy of the adjudication application, and the time within which the respondent can make its adjudication response will not have started.

This is yet another change in the legislation which has gone relatively unnoticed, yet it can have serious consequences to the parties and the adjudicator.

Post Script:

QBCC has now revised its Adjudication Application form (Form 6), from Version 2 to 3). This change was unannounced and the format of the revised form 6 is very different to its predecessor.

Importantly on page 2 under ‘COMPLETING THIS FORM’ it states

‘You are to serve a full copy of this application and submissions on the respondent after it is lodged with the registry. ‘

Notwithstanding the change in wording, it is clear that the application form must be provided to the respondent with a copy of the claimant’s submissions for the respondent to have been properly served.

If in doubt – seek expert assistance from Adjudicate Assist.

Five things to consider before applying for adjudication

Adjudication can be a tough game particularly if you’re not aware about all its intracacies. To help focus your preparing, the Adjudcate Assist team have put together a quick-fire top five points to consider before you even think about serving your payment claim.

Here they are:

1. Is it addressed to the party who may be liable to make payment – who is the respondent?

You must correctly identify the person or entity who you are contracted with and who is liable to make payment, otherwise you run the risk of having your adjudication application deemed invalid.

Read the following Adjudicate Assist tip for further information:

Knowing your contracts: Vital to success in adjudication

Is it made from a valid reference date – when can you make a progress claim under the contract or the BCIPA?

A reference date is the key date from which you, as a claimant, can make a claim for payment. Typically these are clearly shown in your construction contract, but in some cases (such as verbal or oral contracts) they can be difficult to identify. If you call Adjudicate Assist, we can help you find out what your likely reference dates are.

Does it identify the construction work or related goods and services to which it relates – can the respondent clearly understand what you are claiming for?

The Building and Construction Industry Payments Act makes it a requirement for the claimant to identify the work they’re claiming for explicitly on the payment claim itself. You’re putting your best foot forward if you make the construction work which you’re claiming for as clear as possible on the claim itself.

Does it state the amount claimed – how much are you claiming?

Like the previous tip, claimants should make it 100% clear the total amount subject of the claim. You are required to do this under the legislation and leaving this part out may mean your payment claim cannot proceed to adjudication.

Does it state that it is made under the BCIPA – ‘This is a payment claim made under the Building and Construction Industry Payments Act 2004’?

The final tip is that you must endorsed your payment claim with the words “This is a payment claim made under the Building and Construction Industry Payments Act 2004”. This is a device to signal to the respondent that you’re making a claim under the act rather than submitting any old tax invoice. Claims without these words run the risk of failing at adjudication on jurisdictional grounds.

As always, Adjudicate Assist are willing, ready and able to help you with your payment claim and adjudication application.

If in doubt – seek expert assistance from Adjudicate Assist.

Adjudication application disappointment can be avoided by getting your documentation in order.

If you’re preparing to bring your payment claim to adjudication, getting your adjudication application documents in order should be your number one priority

Monthly Adjudication Statistics published by QBCC for January 2016 indicate that 31.5% of all applications made to QBCC are withdrawn before being referred to an adjudicator because of application validation issues.

Additionally, 18% of all adjudication decisions released the adjudicator found that there was no jurisdiction.

Put another way, this means that approximately 40% of all adjudication applications made to QBCC in this time period do not result in a decision because of validation issues. This inevitably means claimants are not getting the best bang-for-buck when pursuing adjudication.

Claimants need to ensure that their applications tick all the boxes before being submitted, to avoid unnecessary disappointment and wasting the application fee.

If in doubt – seek expert assistance from Adjudicate Assist.

The due date for payment: getting it right!

Knowing your due date for payment sounds simple enough but surprisingly, many claimants calculate it incorrectly, and and are subsequently disadvantaged when their claim is disputed and they end up engaging the adjudication process.

Where to start.

The starting point for determining the due date for payment is the contract between the parties. Most standard written forms of contract will provide a specific time for payment following the service of the progress claim.

Where the contract provides a time for payment this must be read with reference to the provisions of the Building and Construction Industry Payments Act (“BCIPA”) Section 15.

This section of the legislation stipulates maximum payment terms for contractors and subcontractors to which the Queensland Building and Construction Commission (“QBCC”) Act applies.

When the Act and your contract conflict.

Where the period in the contract is in excess of the maximum permissible payment period under Section 67U (25 business days) & Section 67W (15 business days) of the QBCC Act, the payment terms default to 10 business days – the same date as the payment schedule is due for standard claims.

It doesn’t help that the definition of ‘business day’ under the QBCC Act and the BCIP Act are different (specifically the BCIP Act removes the dates between Christmas and New Years as valid business days)

Where the contract does not provide a time for payment the payment terms default to 10 business days.

When there is a valid payment terms.

Where the contract does provide a time for payment and the contract is not governed by the QBCC Act (for example: excavation, electrical work, supply of related goods and services) then the contract time for payment will apply.

Establishing the correct due date for payment is critical to serving a notice of intent to apply for adjudication (Section 20A(2) notice) under the BCIPA.

More help?

However, if you’re unsure of how to calculate the due date for payment of your payment claim, you’re welcome to contact us for assistance.

If in doubt – seek expert assistance from Adjudicate Assist.