Building service professionals can claim against domestic building owners

Did you know that architects and other professionals can pursue domestic building owners under the BCIPA?

The BCIPA does not apply to a construction contract for the carrying out of domestic building work if the owner is a party to the contract and resides in or intends to reside in the building; however the definition of domestic building work (in QBCC Act Schedule 1B) explicitly excludes design and documentation work and therefore no protection is provided to the owners for payment claims for such work.

If in doubt – seek expert assistance from 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.

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.

Knowing your contracts: Vital to success in adjudication

As crazy as it sounds, it is not uncommon for claimants to be unsure who they are contracted with. This is particularly the case with oral contracts but not exclusively so.

Furthermore, knowing exactly who you are working for takes on greater importance if your claim goes to adjudication, as you must have a clear idea of who to serve documents on and who is liable to make payment. Incorrectly identifying your contractual partner may have jurisdictional ramifications.

In a recent adjudication we found that the principal named in the contract did not actually exist. The contract contained a myriad of references to non-existing entities, incorrect ABN & ACN numbers and an incorrect QBCC license number. Additionally, a legal practice purported to represent the non-existent legal entity which raised potentially significant problems for that legal practice.

Fortunately we were able to convince the adjudicator as to who the respondent was and the adjudication decision was made wholly in the claimant’s favour.

Before signing a contract or undertaking any work it is advisable to clarify who exactly you are contracting with. This should be a relatively simple exercise and will avoid potential problems down the track.

If in doubt – seek expert assistance from Adjudicate Assist.

Service of documents under BCIPA

Adjudicate Assist understand that the service of documents under the Building and Construction Industry Payments Act (“BCIPA”) – such as  payment claims, payment schedules, adjudication applications and responses  – can often be a confusing process.

The objective of this post is to clear up some of this confusion and help you understand the importance of proper service of documents as well as how to serve documents properly.

To clear up what we mean by service, we’re talking about the delivery of documents on an intended recipient. A good example is the simply act of sending a payment claim to a respondent – the act of doing this is what constitutes serving the payment claim.

Why is service important?

The reason why you should care about proper service of documents is that should your payment claim go to adjudication; a good adjudicator will often request proof of service of important documents (such as the payment claim or a notice of intent to apply for adjudication) in order to establish their own jurisdiction.

If you have not done it correctly, you run the risk of having your adjudication fail on jurisdictional grounds.

What the BCIP Act says and methods of service.

The BCIPA provides for service in the way, if any, provided under the construction contract or under section 39 of the Acts Interpretation Act 1954 or any other relevant law about service.

Popular methods of service include email, post and facsimile, but each have their drawbacks. A good rule of thumb when it comes to service is to refer back to your construction contract, or alternatively, serve as many ways as possible under the circumstances.

Email service can be problematic if not provided for in the construction contract and should not be relied upon on its own as the only method of service.

Posting to a PO Box is also problematic if not provided for in the construction contract and should not be relied upon on its own as the only method of service. A recent Queensland Supreme Court judgement determined that service on a PO Box was not valid service for the purpose of the BCIPA.

Sending by facsimile can be problematic if for example the recipient’s facsimile machine is switched off or not connected. On the other hand as long as you have a confirmation of transmission report, service will be valid even if the recipient does not print out or is unable to print the transmission.

Serve the correct person or entity.

It is vitally important to serve to correct person of entity.

Service of payment claims and adjudication applications must be to the person liable to make payment (the respondent) as specified by the construction contract.

Likewise, service of payment schedules and adjudication responses must be to the person who is entitle to make the payment claim (the claimant). If you are serving anyone else but the claimant or respondent, be sure this is provided for in the construction contract or by delegated authority. If you serve a notice on the wrong person, you risk invalidating the adjudication process.

Service of documents, other than the adjudication application on Queensland Building and Construction Commission (“QBCC”), can take place up until midnight on the last day for service irrespective of any provision in the construction contract to the contrary.

Making an adjudication application to QBCC must be within the prescribed times of 8:00 AM to 5:00 PM on a business day.

If in doubt – seek expert assistance from Adjudicate Assist.

Interest rates and payment claims under BCIPA

Were you aware that overdue claims made under the Building and Construction Industry Payments Act (“BCIPA”) attract interest?

Furthermore, if your payment claim goes to adjudication, and you’re successfully, the adjudicator will usually make a ruling on the interest rate your overdue claim will attract.

This blog pot gives you further information on the claimant’s entitlement to interest as well as an explanation of the interest penalty rate in the Queensland Building and Construction Commission (“QBCC”) Act means in terms of adjudication in Queensland.

Entitlement to interest

A claimant’s right to interest on overdue payments is provided in Section 15(2) and(3) of BCIPA

Interest is not only applicable to the adjudicated amount in adjudication decisions but can also be claimed in progress claims in certain circumstances.

Where a payment claim is made under the BCIPA and the respondent fails to provide a payment schedule within the required timeframe under the BCIPA, the claimed amount is due and payable on or before the due date for payment (s19(2) of the BCIPA).

If the claimant does not proceed to adjudication in respect of this payment claim, the claimant is entitled to claim interest for each day of delay immediately following the due date for payment in subsequent payment claims.

The magic of s67P interest

In an age where the banks are offering annual deposit interest rates in the low single digits, the QBCC Act Section 67P penalty rates are generous at around 12.3% p.a. compounded daily.

Where applicable QBCC Act Section 67P provides a significant deterrent to respondents which wish to delay payment of progress payments.

Many claimants ignore their entitlement to interest in progress claims even where this can be a significant sum of money.

If you’re not claiming the appropriate interest rate on overdue payment claims, you’re doing yourself a financial disservice.

Get in touch for more information.

Adjudicate Assist is a specialist company dealing with all aspects of security of payment legislation throughout Australia and providing expert help to those wishing to utilise the Building and Construction Industry Payments Act. Get in touch today.

If in doubt – seek expert assistance from Adjudicate Assist.

Having the appropriate building licence is important

Having the correct building licence is vital if you are to be successful in construction adjudication.

In simple terms, if you need a Queensland Building & Construction Commission (“QBCC”) licence for the work that you do, then you will be unable to use the Building and Construction Industry Payments Act (“BCIPA”) to recover payments if you do not hold that building licence.


A recent Queensland Supreme Court judgement determined that the requirement to hold a building licence as a precondition to entitlement to use the BCIPA extends to licencing jurisdictions other than QBCC; e.g. Electrical licencing.

You may be surprised to know that a not uncommon problem is that whilst the individual owner of a company may be licensed, the company which is making the payment claim is sometimes not itself licensed, and therefore not entitled to receive payment under the BCIPA or otherwise.

Claimants must be clear as to the requirements to hold a specific building licence for the work that they do.

Generally speaking, even if your licence has been suspended or cancelled but you held a valid building licence at the time you carried out the relevant work, then you will be able to use the BCIPA.

If in doubt – seek expert assistance from Adjudicate Assist.