Building Law Report: Security of Payment Act, Recent Amendments

This report provides an in-depth analysis of the Building and Construction Industry Security of Payment Act 1999. It begins with an introduction to the act and its significance in the construction industry, emphasizing the importance of securing the interests of contractors and subcontractors. The report then delves into the operational aspects of the act, outlining the 38 sections and how they function, including the provisions for payment recovery and the role of payment schedules. It explains the rationale behind the act's introduction, highlighting issues such as delayed payments and the lack of adequate legal remedies before its enactment. The report also discusses the act's objectives, which include ensuring timely payments and providing clear procedures for dispute resolution. Furthermore, it examines the relationship between the act and regular court actions, clarifying the roles of courts in enforcing remedies and adjudicating disputes. The report also addresses recent amendments to the act, particularly those made in 2013, which aimed to strengthen the rights of subcontractors. Finally, the report concludes by summarizing the act's key provisions and its impact on the construction industry, emphasizing the increased protections afforded to subcontractors.

Running Head: Building Law 0
Building Law
Civil- Construction and Building Procurement
Student’s Name
10/1/2018

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Contents
Introduction.................................................................................................................................................2
How does the Act work?.............................................................................................................................2
Why the act has introduced.........................................................................................................................3
Act and Regular Court Actions....................................................................................................................5
Recent Amendments in the Act...................................................................................................................6
Conclusion...................................................................................................................................................8
Bibliography................................................................................................................................................8
Books/ Journals 8
Legislation 8
Other Resources 9

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Introduction
The report presented hereunder is based on the topic of Building and Construction Industry
Security of Payments act 19991. Building and construction industry is one of the most significant
industries of any nation or state. Many classes of people are involved in this industry such as
builder, contractors, sub-contractors and so on. This is to inform that the act has developed to
secure the interest of contractors and subcontracts in the nation. The motivation behind preparing
this report is to address the Property Council of New South Wales on various aspects related to
this act. In this report, the aspects related to act such as the manner in which the same works, the
role of courts and tribunals, recent amendments in the act are mentioned. The prepared report is
attached herewith under the title name Annexure A and this is to hope that the same will prove
helpful to the addressee.
How does the Act work?
In this heading, the manner in which the said act works is stated. Total 38 sections are there in
this act. The act works as an authority that provides right to an innocent party in a construction
contract. Before the development of this act too, right were available to contractors and
subcontractors in against of builders and contractors, however, now the rights have a legal
ground. The act is majorly focused on the recovery of payments. According to section 5 of the
act repair, restoration and extension are also included in the category of construction works2.
1 Building and Construction Industry Security of Payment Act 1999 No 46
2 Andrew Burr, International Contractual and Statutory Adjudication (Taylor & Francis, 2017)

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Section 7 says that the act is applicable to every construction contract, no matter that whether the
same is in written mode or not. It means the act is also applicable to oral contracts. For every
possible confusion in the area of the work contract, the act provides a clarification. This can also
be stated that this act is a bundle of rules. Part 3 of the Act provides the procedure for recovery
of progress payments. Division 1 of the act is completely focused on the payment schedules and
payment claims. Section 11 of the act states the dates on which the payment of a contractor or
sub-contractor becomes due. Division 2 provides the way in that adjudications of disputes under
this act can be done. The act provided a manner in which a person can ask for his due payments.
It means a well-defined procedure is there and one cannot directly seek the final remedies. For
instance, a subcontractor first needs to ask the payment schedules and if the contractor fails to
provide the same then only the subcontractor can move to the courts for adjudication of his/her
claim.
A victim party of a construction/work contract can get the remedy under this act. The act has it is
a unique feature that the same itself provides remedies to innocent parties. It means if a
contractor fails to make the payment of a sub-contractor, then such subcontractor can serve the
payment demand notice to the contractor. He/she can also ask for the payment schedules. In
addition to this, a victim party can also knock the door of the court to enforce the remedies
granted under this act. This whole act works in this manner.
Why the act has introduced
Every act develops because of such requirements. The same was with Building and Construction
Industry Security of Payments act 1999. Before the enactment of this act, some issues were there

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in construction-related contracts and therefore the victim party was not able to get remedies
within the reasonable time. Some other issues were also, there such as lack of knowledge of
rights and availability of proper remedies. In addition to this, before the enactment of this act,
some a conclusive set of law was missing. The victim parties were depended upon regular courts
to seek justice and the courts were unable to entertain so many cases. Cause of this, the
proceedings, and decisions, both were being delayed. The regular courts also had other cases
apart from the disputes of construction contracts. An act was required to develop that could
provide remedies itself and victim parties would not have to look after the court to seek
remedies. Further, no legislation was there to determine remedies in case of nonpayment of dues
and therefore the courts were used to provide different remedies in each case3.
Whenever a law develops, the developers set some objectives of the same and similarly at the
time of development of this act, the developers have decided some objective and aims of the act.
Some of the lead objectives of this act are mentioned hereunder.
To ensure that contractors, subcontractors and every other person who provides any
services or goods to a construction work, get his/her payment on time.
People mentioned in aforesaid point can ask for the progress payments even in that
situation where noting related to progress payment was contained in the contract
To provide remedies to innocent parties in addition to the remedies stated in their
contract4.
To provide a well-defined procedure for recovery of due payment
3 Darryl Royce, Adjudication in Construction Law (Informa Law from Routledge, 2016).
4 cbp. Once is enough (2018) < http://www.cbp.com.au/Portals/0/140909AKSPaper_Building%20Construction
%20Industry-Security%20of%20Payment.pdf>

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There was a need to introduce an act that consists every possible aspect related to a construction
work contact and for this reason; it has been decided to develop an act specifically on the subject
of construction contracts.
Act and Regular Court Actions
As stated earlier that before the introduction of this act, regular courts were there to provide
justice to the victim parties. Now, the act is a complete guide that set out the remedies for the
innocent parties. In addition to this, the other rules related to disputes and claim under a
construction work are also mentioned under the act. Although remedies are set under the act, yet
there is a need of courts and judges. The reason behind is that in addition to the grant of remedy,
enforcement of the same is also an important aspect.
Under many of the sections of this act, the role and duties of a court are mentioned. For instance,
section 15 if the act says that if a person who was responsible to provide payment schedule
(payment in case of absence of payment schedule) then the victim party can ask the due amount
in any jurisdiction. It means the remedy is granted under the act but go seek the same; a claimant
is dependent on the court. Section 16 further says that claimant can also knock the door of a
court if the person liable to make the payment does not pay the same according to the payment
schedule.
In conjunction to the above two sections, Division 2 of the act is titled as Adjudication of
disputes. If a principal or contractor denies making the payment of the due amount or pays only
part of the amount then the claimant can initiate an action against him/her under the court of

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competent jurisdiction. The whole procedure is mentioned under the act by following the same
one can get proper justice. Section 25 of the act provides that the innocent party of a case can file
the adjudication certificate as a judgment debt before the court of related jurisdiction5.
By reviewing, the aforesaid sections this can be stated that even after the presence of act, courts
have their unique functions and the same are highly significant in order to grant justice to the
claimant.
Recent Amendments in the Act
The changes in the act or legislation are known as amendments. Amendments are the
requirements of changing economic and legal environments. With the passing of time, these
amendments become a requirement of every act. In the subjective act also, some amendments
have been made in recent years such as in the year 2003 and 2010. The last amendments have
been introduced to the act in the year 2013 which are well known as recent amendments6. The
lead objective behind recent amendments of the act was to grant more securities to the
subcontracts; hence, this would not be wrong to state that these recent amendments were majorly
focused on the subcontractors. Through these amendments, changes have developed in section
11 and 13 of the act.
5 Austlii, Building And Construction Industry Security Of Payment Act 1999 - Sect 25 Filing Of Adjudication Certificate As
Judgment Debt (2018) < http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/bacisopa1999606/s25.html>.
6 Mills Oakley, Building and Construction Industry Security of Payment Amendment Bill NSW (2014)
<https://www.millsoakley.com.au/building-and-construction-industry-security-of-payment-amendment-bill-nsw/>.

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Section 11 is one of the most significant sections of the act. According to the provisions of this
section, a progress payment under a construction contract becomes due on some specified dates.
These dates are mentioned as follow:-
Within 15 business days from the day of lodgment of payment claim, if the eligible
person to receive the payment is a head contractor
Within 30 business days from the day of lodgment of payment claim, if the eligible
person to receive the payment is a sub-contractor7.
While protecting the rights of a subcontractor, Subsection 2 of section 11 states that if a
contractor would not proceed with the payment of dues to subcontractor within the specified
time, then the same will be liable to pay interest also.
Moving towards the section 13 of the act, this is to state that after recent amendments a head
contractor is now required to produce a document to principle/owner stating that payment has
been made to all subcontractors. This requirement was not there in the act before the amendment.
Rights of Subcontractor in respect of owner: - Some of the times, the contractor take the
whole responsibility of a construction work including supply of goods and services and do not
make any contract with subcontractors. In such situations, the right of a subcontractor under this
act goes with the contractor and he/she can use all the rights and remedies that are available to a
subcontract8.
7 New South wales Government, Building and Construction Industry Security of Payment Act 1999 No 46 (2018) <
https://www.legislation.nsw.gov.au/#/view/act/1999/46/full>.
8 Philip Davenport, Michael C Brand and Jinu Kim, Adjudication In Australia: A Study Of The Building And
Construction Industry Security Of Payment Amendment Act 2013 (NSW) <Available from:
http://www.asres.net/2015_Conference/Davenport.pdf>.

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Conclusion
This is to conclude that the studied act is very significant. Every section of the act provides
important provisions related to construction work. One can get remedy under the act and can
apply to the court for the enforcement of the same. Further, some amendments have been done in
the act during the recent years and now subcontractor has more rights against the contractors in
the comparison of past.

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Bibliography
Books/ Journals
Burr, Andrew, International Contractual and Statutory Adjudication (Taylor & Francis, 2017)
Royce, Darryl Adjudication in Construction Law (Informa Law from Routledge, 2016).
Legislation
Building and Construction Industry Security of Payment Act 1999 No 46 (NSW)
Other Resources
Austlii, Building And Construction Industry Security Of Payment Act 1999 - Sect 25 Filing Of
Adjudication Certificate As Judgment Debt (2018) <
http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/bacisopa1999606/s25.html>.
cbp. Once is enough (2018) < http://www.cbp.com.au/Portals/0/140909AKSPaper_Building
%20Construction%20Industry-Security%20of%20Payment.pdf>
Davenport, Philip, Michael C Brand and Jinu Kim, Adjudication In Australia: A Study Of The
Building And Construction Industry Security Of Payment Amendment Act 2013 (NSW)
<Available from: http://www.asres.net/2015_Conference/Davenport.pdf>.
New South wales Government, Building and Construction Industry Security of Payment Act
1999 No 46 (2018) < https://www.legislation.nsw.gov.au/#/view/act/1999/46/full>.

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Oakley, Mills, Building and Construction Industry Security of Payment Amendment Bill NSW
(2014) <https://www.millsoakley.com.au/building-and-construction-industry-security-of-
payment-amendment-bill-nsw/>.