Two years on from the amendments to the Building and Construction Industry Payments Act 2004 (Qld) (BCIP Act), it is a good time to refresh your memory on the timing requirements for the service of a payment schedule. This is clearly the most important time limit under the BCIP Act, and the amendments mean that close attention has to be paid to the terms of the contract as well as the statutory limit.
Under section 18A of the BCIP Act, a payment schedule must be served within the earlier of:
- the time required by the contract; or
- 10, 15 or 30 business days after the payment claim was served (depending upon whether the payment claim is a standard or complex claim).
The clear risk is that the more generous time limits allowed by the BCIP Act amendments for complex claims (ie. 15 or 30 business days) can be lost if the terms of the contract provide for an earlier time. The concern for owners is that this may happen inadvertently if they have not checked the terms of their contract.
In good news, the courts have made it clear that an express provision is required to have this effect. That means that you must look at whether the contract says anything about the time within which a statutory payment schedule is to be provided – and not just a payment schedule or certificate under the contract.
This is important to remember when drafting a construction contract. If you want different payment regimes, then we recommend clearly distinguishing between contractual payment claims and BCIP Act payment claims in the clause and expressly providing for a different time for the delivery of a payment schedule or payment certificate under each. Of course, it may simply be safer to link the contractual regime to the statutory one, such that the contract provides that the BCIP Act time frames apply to both regimes. Given that the consequence of failing to deliver a payment schedule on time will allow the claimant to bring an adjudication application under the BCIP Act or apply for judgment, we think it is better to err on the side of caution.