Investigatory and enforcement powers for agencies form the centrepiece of the proposed reforms to the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOP Act). Proposed key reforms include:

  • increased penalties for offences and new offence-creating provisions for directors and managers;
  • granting "authorised officers" broad investigative powers;
  • a new code of practice for Authorised Nominated Authorities;
  • new minimum requirements for reference dates (at least one for each month in which work is carried out and one the day after the date of termination);
  • reinstatement of the requirement to endorse payment claims as being made under the SOP Act;
  • reduced timeframes for payment (10 business days for principals and 20 business days for head contractors);
  • a mechanism for SOP Act determinations that are affected by jurisdictional error to be remitted to the adjudicator for redetermination; and
  • provisions that preclude claimants that are in liquidation from relying upon the SOP Act. These provisions are an attempt to bridge the divide between Victoria and New South Wales, following Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in liq) [2018] NSWSC 412. The provisions proposed in the Draft Bill are also broadly consistent with the recent decision in Michael J Lonsdale (Electrical) Ltd v Bresco Electrical Services Ltd (in Liq) [2018] EWHC 2043 (TCC).

 Stakeholders have until 18 September 2018 to comment on the proposed changes.