Building and Construction Industry (Security of Payment) Act 2021 (WA)

Western Australia Building and Construction Industry (Security of Payment) Act 2021 Western Australia Building and Construction Industry (Security of Payment) Act 2021 Contents Part 1 — Preliminary Division 1 — Introductory 1. Short title 1 2. Commencement 1 3. Object of Act 1 Division 2 — Interpretation 4. Terms used 1 5. Term used: construction contract 1 6. Term used: construction work 1 7. Term used: related goods and services 1 8. Value of construction contract 1 Division 3 — Application of Act 9. Construction contracts to which Act applies 1 10. Construction contracts to which Act does not apply 1 11. Act binds Crown 1 Part 2 — Construction contracts and right to progress payments Division 1 — Form and content of construction contracts 12. Model forms of construction contracts 1 13. Construction contracts that are to be in writing and contain mandatory information 1 14. Prohibited terms: pay when paid provisions 1 15. Other prohibited terms prescribed by regulations 1 16. Notice‑based time bar has no effect if declared unfair in particular case 1 Division 2 — Right to progress payments 17. Right to progress payments 1 18. Amount of progress payment 1 19. Valuation of construction work and related goods and services 1 20. Due date for payment 1 21. Interest on payment after due date 1 Part 3 — Procedure for obtaining progress payments Division 1 — Payment claims and schedules 22. Making payment claims 1 23. When payment claims may be made 1 24. Content of payment claims 1 25. Response to payment claim: payment schedule 1 26. Claimed amount becomes payable if payment schedule not duly given 1 27. Consequences of not paying claimed or scheduled amount 1 Division 2 — Adjudication of payment disputes 28. When claimant may apply for adjudication of payment claim 1 29. To whom adjudication application made 1 30. Requirements relating to adjudication application 1 31. Withdrawal of adjudication application 1 32. Appointment of adjudicator 1 33. Disqualification of adjudicator with conflict of interest in adjudication application 1 34. Adjudication response 1 35. Adjudication procedures 1 36. Jurisdiction to make determination, frivolous or vexatious applications and complex applications 1 37. Time allowed for adjudicator to determine adjudication application 1 38. Adjudicator's determination 1 Division 3 — Review of adjudications 39. When claimant or respondent may apply for review of adjudication 1 40. Adjudicated amount in dispute to be paid into trust account before respondent may make adjudication review application 1 41. To whom adjudication review application made 1 42. Requirements relating to adjudication review application 1 43. Withdrawal of adjudication review application 1 44. Appointment of review adjudicator 1 45. Adjudication review response 1 46. Adjudication review procedures 1 47. Time allowed for review adjudicator to determine adjudication review application 1 48. Review adjudicator's determination 1 Division 4 — Adjudication fees and expenses 49. Terms used 1 50. Adjudication fees and expenses 1 51. Miscellaneous provisions relating to adjudication fees and expenses 1 Division 5 — Payment and recovery of adjudicated and other amounts 52. Requirement to pay adjudicated amount or to repay excess amount 1 53. Certification of determination if adjudicated amount not paid or excess amount not repaid 1 54. Certified copy of determination enforceable as monetary judgment 1 55. Effect of this Part on civil proceedings 1 Division 6 — Claimant's rights with respect to performance security 56. Terms used 1 57. Right to receive notice before recourse to performance security 1 58. Right to release of performance security 1 59. Right to substitute performance security 1 60. Requirements for compliant performance bond for substitution of performance security 1 61. Application of Division where third parties involved in performance securities 1 Division 7 — Claimant's right to suspend work or supply 62. Claimant's right to suspend work or supply for non‑payment 1 63. Provisions relating to suspension of work or supply 1 Division 8 — Claimant's right to lien 64. Lien over unfixed plant and materials in respect of unpaid progress payments 1 Division 9 — Miscellaneous provisions relating to payment claims 65. Threatening or intimidating claimants or persons entitled to make claim 1 66. Jurisdictional error in determination of adjudicator or review adjudicator 1 67. No appeal or review of determination of adjudicator or review adjudicator except under this Part 1 68. Application of Part to corporate claimant in liquidation 1 Part 4 — Retention money trusts 69. Terms used 1 70. Construction contracts to which Part applies 1 71. Retention money to be held on trust 1 72. Beneficial interests of parties to contract in retention money trusts 1 73. Requirement to draw down debt facility or otherwise set aside retention money required to be held on trust 1 74. Establishment of retention money trust accounts and payments into trust accounts 1 75. Requirements relating to establishment of retention money trust accounts 1 76. Withdrawals from retention money trust accounts 1 77. Decisions on payments into or out of retention money trust accounts by adjudicators, courts, arbitrators and experts 1 78. Trust account interest and fees 1 79. Trust records 1 80. Power to employ agents 1 81. Recognised financial institutions not subject to certain obligations and liabilities 1 82. Application of Personal Property Securities Act 2009 (Cwlth) 1 83. Trusts under this Part prevail over construction or other contracts 1 84. General jurisdiction of courts to supervise trusts preserved 1 85. Application of Trustees Act 1962 1 86. Indemnity of trustee from trust under this Part 1 87. Offence for failure to comply with certain requirements of this Part 1 Part 5 — Nominating authorities, adjudicators and review adjudicators Division 1 — Authorisation of nominating authorities 88. Application for authorisation 1 89. Maximum number of persons who may be authorised 1 90. Authorisation of nominating authorities 1 91. Eligibility to be authorised 1 92. Conditions of authorisation 1 93. Term of authorisation 1 94. Revocation of authorisation 1 95. Review by State Administrative Tribunal of decisions of Building Commissioner 1 96. Information to be provided to Building Commissioner by authorised nominating authorities 1 97. Code of practice for nominating authorities 1 98. Making and determining applications for authorisation before commencement of Division 1 Division 2 — Registration of adjudicators and review adjudicators 99. Registration of individual as adjudicator, review adjudicator or both 1 100. Application for registration 1 101. Registration as adjudicator or review adjudicator 1 102. Eligibility to be registered 1 103. Conditions of registration 1 104. Renewal of registration 1 105. Term of registration 1 106. Suspension or cancellation of registration 1 107. Public register of adjudicators and review adjudicators 1 108. Review by State Administrative Tribunal of decisions of Building Commissioner 1 109. Code of practice for adjudicators and review adjudicators 1 110. Transitional registration on commencement of Division 1 Part 6 — Miscellaneous 111. No contracting out 1 112. Immunity from civil liability 1 113. Service of documents 1 114. Approved forms 1 115. Annual report on operation of Act 1 116. Use or disclosure of confidential information 1 117. Criminal proceedings generally 1 118. Liability of officers for offence by body corporate 1 119. Regulations 1 120. Review of Act 1 Part 7 — Consequential amendments to other Acts Division 1 — Building Services (Complaint Resolution and Administration) Act 2011 amended 121. Act amended 1 122. Section 3 amended 1 123. Section 70 amended 1 124. Section 71 amended 1 Division 2 — Building Services (Registration) Act 2011 amended 125. Act amended 1 126. Section 3 amended 1 127. Section 18 amended 1 128. Section 32A inserted 1 32A. Notification of new directors 1 129. Section 53 amended 1 130. Section 57 amended 1 131. Section 58 amended 1 132. Section 59 amended 1 133. Part 5A inserted 1 Part 5A — Insolvency of building service contractors 63A. Terms used 1 63B. Excluded contractors not to be registered 1 63C. Declaration of excluded contractors 1 63D. When individual or non‑corporate body may be declared excluded contractor 1 63E. When corporation may be declared excluded contractor 1 63F. Procedure for declaring excluded contractor 1 63G. When declaration of excluded contractor takes effect 1 134. Section 64 amended 1 Division 3 — Construction Contracts Act 2004 amended 135. Act amended 1 136. Section 1 amended 1 137. Section 7 amended 1 138. Section 48 amended 1 139. Section 52 deleted 1 Division 4 — Procurement Act 2020 amended 140. Act amended 1 141. Section 4 amended 1 Notes Compilation table 1 Defined terms Western Australia Building and Construction Industry (Security of Payment) Act 2021 An Act to provide an effective and fair process for securing payments under construction contracts in the building and construction industry, and for related purposes.