The most fundamental part to having a statutory right to payment under the BCIPA is to correctly draft and submit your payment claim. In this article we will discuss how to make a valid claim under the Building and Construction Industry Payments Act in Queensland and New South Wales.
There are two key components to making a payment claim under the Acts in both these states:
- The presence of a Reference Date (NSW BCIPA S8; QLD BCIPA S12); and,
- A valid payment claim (NSW BCIPA S13;QLD BCIPA S17).
A reference date is a date when a payment claim can be made. This is determined either by the contract, or if the contract does not provide then the Act says the last day of the month is the reference date. The QLD BCIPA Act defines a reference date as follows:
reference date, under a construction contract, means—
(a) a date stated in, or worked out under, the contract as the
date on which a claim for a progress payment may be
made for construction work carried out or undertaken to
be carried out, or related goods and services supplied or
undertaken to be supplied, under the contract; or
(b) if the contract does not provide for the matter—
(i) the last day of the named month in which the
construction work was first carried out, or the
related goods and services were first supplied,
under the contract; and
(ii) the last day of each later named month.
Let’s take an example. If the contract states the date for payment claims is the 25th day of each and every Month, then under the Act a reference date arises on the 25th of each month, and you can make a claim on that date for works undertaken up to that date. So supposing you have worked all of February on your construction project, come the 25th of February a reference date has arisen and you can make a claim. Be mindful that only one claim per reference date can be made, so if you make a claim on the 25th of February then make another claim on the 20th March the first claim will be recognised but the second claim will not. You will need to wait until the 25th of March to make the next claim (the next available reference date). If however the contract is silent then a reference date arises on the 28th of February (being the last day of the month) then again on the 31st March.
Valid Payment Claim
A valid payment claim is quite simple to make, and the process is almost identical in NSW and QLD. The QLD Act stipulates the following for payment claims:
S17 (2) A payment claim—
(a) must identify the construction work or related goods and
services to which the progress payment relates; and
(b) must state the amount of the progress payment that the
claimant claims to be payable (the claimed amount); and (c) must state that it is made under this Act.
Put simply all you need to do is identify the works you are claiming for, the amount you are claiming and state that the claim is made under the Act. It can be as easy as sending an email to the Principal (or owner) of the project saying “I have installed all the windows on the second floor at 97 Willcott St. The amount due is $5900 as we agreed. This is a claim under the Building and Construction Industry Payments Act 2004 (Qld).”
The NSW Act only differs slightly; you don’t even need to mention the Act unless your contract is an exempt residential construction contract.
S13 (2) A payment claim:
(a) must identify the construction work (or related goods and services) to which
the progress payment relates, and
(b) must indicate the amount of the progress payment that the claimant claims to
be due (the claimed amount), and
(c) if the construction contract is connected with an exempt residential
construction contract, must state that it is made under this Act
And that is the process of making a claim that will allow you to enforce your right to payment under the Act. If you have any queries feel free to get in touch with me or leave a comment below. Next time I will look at how you respond to a claim by providing a valid payment schedule.