The amendments to the Building and Construction Industry Payments Act 2004 (Qld) (amended Act) will commence on 15 December 2014.
From 15 December 2014, a new definition of 'business day' will apply to all payment claims, whether they are served before or after commencement. Happily, the new definition of 'business day' means that in many circumstances, time will not run over this year's Christmas period, from 22 December to 10 January.
Impact on respondents to a payment claim
A respondent to a payment claim made before 15 December 2014, must serve a payment schedule within the earlier of:
- the time required under the contract; or
- 10 business days after the payment claim is served.
Whether or not a respondent has the benefit of additional time over the Christmas period will depend on the drafting of the relevant contract.
Many contracts allow '10 business days' for the provision of payment schedules, with 'business days' being defined as days other than 'Saturdays, Sundays, public holidays or 27, 28, 29, 30 or 31 December'. The amended Act will not 'step in' to extend time under contracts that define 'business days' in that way. In those circumstances the earlier period will be the time required under the contract, and the respondent will not benefit from the new definition of 'business day'.
To have the benefit of the longer period to serve a payment schedule, your contract must:
- describe 'business days' by reference to the Building and Construction Industry Payments Act; and
- also include a clause that expressly provides that references to legislation are to legislation as amended from time to time.
Impacts on claimants making an adjudication application
Claimants considering making an adjudication application on or after 15 December 2014 will have the benefit of the new definition of 'business day' incorporated into the unamended Act.
Claimants will make the application to the registrar, who will then refer the application to a person eligible to be an adjudicator under the amended Act.
Impacts on respondents to an adjudication application
If you are preparing an adjudication response now you will not get any benefit because your response will be due before 22 December.
Otherwise, respondents to all adjudication applications will have the benefit of the new definition of 'business day' incorporated into the unamended Act. This means that if an adjudication application is served on 19 December 2014, for example, the adjudication response would not need to be served until 16 January 2015, allowing for the Christmas shutdown period from 22 December to 10 January.