Building and Construction Industry Security of Payment Act 1999 No 46

(1)  A person referred to in section 8 who is or who claims to be entitled to a progress payment (the claimant) may serve a payment claim on the person who, under the construction contract concerned, is or may be liable to make the payment.

(1A)  A payment claim may be served on and from 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 on and from the last day of each subsequent named month.

(1B)  However, if the construction contract concerned makes provision for an earlier date for the serving of a payment claim in any particular named month, the claim may be served on and from that date instead of on and from the last day of that month.

(1C)  In the case of a construction contract that has been terminated, a payment claim may be served on and from the date of termination.

(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)  must state that it is made under this Act.

(3)  The claimed amount may include any amount—

(a)  that the respondent is liable to pay the claimant under section 27(2A), or

(b)  that is held under the construction contract by the respondent and that the claimant claims is due for release.

(4)  A payment claim may be served only within—

(a)  the period determined by or in accordance with the terms of the construction contract, or

(b)  the period of 12 months after the construction work to which the claim relates was last carried out (or the related goods and services to which the claim relates were last supplied),

whichever is the later.

(5)  Except as otherwise provided for in the construction contract, a claimant may only serve one payment claim in any particular named month for construction work carried out or undertaken to be carried out (or for related goods and services supplied or undertaken to be supplied) in that month.

(6)  Subsection (5) does not prevent the claimant from—

(a)  serving a single payment claim in respect of more than one progress payment, or

(b)  including in a payment claim an amount that has been the subject of a previous claim, or

(c)  serving a payment claim in a particular named month for construction work carried out or undertaken to be carried out (or for related goods and services supplied or undertaken to be supplied) in a previous named month.

(7)  A head contractor must not serve a payment claim on the principal unless the claim is accompanied by a supporting statement that indicates that it relates to that payment claim.

Maximum penalty—1,000 penalty units in the case of a corporation or 200 penalty units in the case of an individual.

(8)  A head contractor must not serve a payment claim on the principal accompanied by a supporting statement knowing that the statement is false or misleading in a material particular in the particular circumstances.

Maximum penalty—1,000 penalty units in the case of a corporation or 200 penalty units or 3 months imprisonment (or both) in the case of an individual.

(9)  In this section—

supporting statement means a statement that is in the form approved by the Secretary and (without limitation) that includes a declaration to the effect that all subcontractors, if any, have been paid all amounts that have become due and payable in relation to the construction work concerned.

Note—

An offence against subsection (7) or (8) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 34D.

s 13: Am 2002 No 133, Sch 1 [22]–[24]; 2013 No 93, Sch 1 [6] [7]; 2018 No 65, Sch 8.1; 2018 No 78, Sch 1[9]–[15].

(1)  A person on whom a payment claim is served (the respondent) may reply to the claim by providing a payment schedule to the claimant.

(2)  A payment schedule—

(a)  must identify the payment claim to which it relates, and

(b)  must indicate the amount of the payment (if any) that the respondent proposes to make (the scheduled amount).

(3)  If the scheduled amount is less than the claimed amount, the schedule must indicate why the scheduled amount is less and (if it is less because the respondent is withholding payment for any reason) the respondent’s reasons for withholding payment.

(4)  If—

(a)  a claimant serves a payment claim on a respondent, and

(b)  the respondent does not provide a payment schedule to the claimant—

(i)  within the time required by the relevant construction contract, or

(ii)  within 10 business days after the payment claim is served,

whichever time expires earlier,

the respondent becomes liable to pay the claimed amount to the claimant on the due date for the progress payment to which the payment claim relates.

(1)  This section applies if the respondent—

(a)  becomes liable to pay the claimed amount to the claimant under section 14(4) as a consequence of having failed to provide a payment schedule to the claimant within the time allowed by that section, and

(b)  fails to pay the whole or any part of the claimed amount on or before the due date for the progress payment to which the payment claim relates.

(2)  In those circumstances, the claimant—

(a)  may—

(i)  recover the unpaid portion of the claimed amount from the respondent, as a debt due to the claimant, in any court of competent jurisdiction, or

(ii)  make an adjudication application under section 17(1)(b) in relation to the payment claim, and

(b)  may serve notice on the respondent of the claimant’s intention to suspend carrying out construction work (or to suspend supplying related goods and services) under the construction contract.

(3)  A notice referred to in subsection (2)(b) must state that it is made under this Act.

(4)  If the claimant commences proceedings under subsection (2)(a)(i) to recover the unpaid portion of the claimed amount from the respondent as a debt—

(a)  judgment in favour of the claimant is not to be given unless the court is satisfied of the existence of the circumstances referred to in subsection (1), and

(b)  the respondent is not, in those proceedings, entitled—

(i)  to bring any cross-claim against the claimant, or

(ii)  to raise any defence in relation to matters arising under the construction contract.

s 15: Am 2002 No 133, Sch 1 [25] [26].

(1)  This section applies if—

(a)  a claimant serves a payment claim on a respondent, and

(b)  the respondent provides a payment schedule to the claimant—

(i)  within the time required by the relevant construction contract, or

(ii)  within 10 business days after the payment claim is served,

whichever time expires earlier, and

(c)  the payment schedule indicates a scheduled amount that the respondent proposes to pay to the claimant, and

(d)  the respondent fails to pay the whole or any part of the scheduled amount to the claimant on or before the due date for the progress payment to which the payment claim relates.

(2)  In those circumstances, the claimant—

(a)  may—

(i)  recover the unpaid portion of the scheduled amount from the respondent, as a debt due to the claimant, in any court of competent jurisdiction, or

(ii)  make an adjudication application under section 17(1)(a)(ii) in relation to the payment claim, and

(b)  may serve notice on the respondent of the claimant’s intention to suspend carrying out construction work (or to suspend supplying related goods and services) under the construction contract.

(3)  A notice referred to in subsection (2)(b) must state that it is made under this Act.

(4)  If the claimant commences proceedings under subsection (2)(a)(i) to recover the unpaid portion of the scheduled amount from the respondent as a debt—

(a)  judgment in favour of the claimant is not to be given unless the court is satisfied of the existence of the circumstances referred to in subsection (1), and

(b)  the respondent is not, in those proceedings, entitled—

(i)  to bring any cross-claim against the claimant, or

(ii)  to raise any defence in relation to matters arising under the construction contract.

s 16: Am 2002 No 133, Sch 1 [27] [28].

(1)  A claimant may apply for adjudication of a payment claim (an adjudication application) if—

(a)  the respondent provides a payment schedule under Division 1 but—

(i)  the scheduled amount indicated in the payment schedule is less than the claimed amount indicated in the payment claim, or

(ii)  the respondent fails to pay the whole or any part of the scheduled amount to the claimant by the due date for payment of the amount, or

(b)  the respondent fails to provide a payment schedule to the claimant under Division 1 and fails to pay the whole or any part of the claimed amount by the due date for payment of the amount.

(2)  An adjudication application to which subsection (1)(b) applies cannot be made unless—

(a)  the claimant has served written notice on the respondent, within the period of 20 business days immediately following the due date for payment, of the claimant’s intention to apply for adjudication of the payment claim, and

(b)  the respondent has been given an opportunity to provide a payment schedule to the claimant within 5 business days after receiving the claimant’s notice.

(3)  An adjudication application—

(a)  must be in writing, and

(b)  must be made to an authorised nominating authority chosen by the claimant, and

(c)  in the case of an application under subsection (1)(a)(i)—must be made within 10 business days after the claimant receives the payment schedule, and

(d)  in the case of an application under subsection (1)(a)(ii)—must be made within 20 business days after the due date for payment, and

(e)  in the case of an application under subsection (1)(b)—must be made within 10 business days after the end of the 5-day period referred to in subsection (2)(b), and

(f)  must identify the payment claim and the payment schedule (if any) to which it relates, and

(g)  must be accompanied by such application fee (if any) as may be determined by the authorised nominating authority, and

(h)  may contain such submissions relevant to the application as the claimant chooses to include.

(4)  The amount of any such application fee must not exceed the amount (if any) determined by the Minister.

(5)  A copy of an adjudication application must be served on the respondent concerned.

(6)  It is the duty of the authorised nominating authority to which an adjudication application is made to refer the application to an adjudicator (being a person who is eligible to be an adjudicator as referred to in section 18) as soon as practicable.

s 17: Subst 2002 No 133, Sch 1 [29]. Am 2018 No 78, Sch 1[16].

(1)  A claimant may withdraw an adjudication application at any time—

(a)  before an adjudicator is appointed to determine the application, or

(b)  if an adjudicator has been appointed—before the application is determined,

by serving written notice of the withdrawal on the respondent and on the authorised nominating authority or the adjudicator (if any).

(2)  If an adjudicator has been appointed to determine an adjudication application, the withdrawal of the application does not have effect if any other party to the construction contract concerned objects to the withdrawal and, in the opinion of the adjudicator, it is in the interests of justice to uphold the objection.

s 17A: Ins 2018 No 78, Sch 1[17].

(1)  A person is eligible to be an adjudicator in relation to a construction contract—

(a)  if the person is a natural person, and

(b)  if the person has such qualifications, expertise and experience as may be prescribed by the regulations for the purposes of this section.

(2)  A person is not eligible to be an adjudicator in relation to a particular construction contract—

(a)  if the person is a party to the contract, or

(b)  in such circumstances as may be prescribed by the regulations for the purposes of this section.

(1)  If an authorised nominating authority refers an adjudication application to an adjudicator, the adjudicator may accept the adjudication application by causing notice of the acceptance to be served on the claimant and the respondent.

(2)  On accepting an adjudication application, the adjudicator is taken to have been appointed to determine the application.

s 19: Am 2002 No 133, Sch 1 [30].

(1)  Subject to subsection (2A), the respondent may lodge with the adjudicator a response to the claimant’s adjudication application (the adjudication response) at any time within—

(a)  5 business days after receiving a copy of the application, or

(b)  2 business days after receiving notice of an adjudicator’s acceptance of the application,

whichever time expires later.

(2)  The adjudication response—

(a)  must be in writing, and

(b)  must identify the adjudication application to which it relates, and

(c)  may contain such submissions relevant to the response as the respondent chooses to include.

(2A)  The respondent may lodge an adjudication response only if the respondent has provided a payment schedule to the claimant within the time specified in section 14(4) or 17(2)(b).

(2B)  The respondent cannot include in the adjudication response any reasons for withholding payment unless those reasons have already been included in the payment schedule provided to the claimant.

(3)  A copy of the adjudication response must be served on the claimant.

s 20: Am 2002 No 133, Sch 1 [31] [32].

(1)  An adjudicator is not to determine an adjudication application until after the end of the period within which the respondent may lodge an adjudication response.

(2)  An adjudicator is not to consider an adjudication response unless it was made before the end of the period within which the respondent may lodge such a response.

(3)  Subject to subsections (1) and (2), an adjudicator is to determine an adjudication application as expeditiously as possible and, in any case—

(a)  within 10 business days after—

(i)  if the respondent is entitled to lodge an adjudication response under section 20—the date on which the respondent lodges the response or, if a response is not lodged, the end of the period within which the respondent was entitled to lodge a response, or

(ii)  in any other case—the date on which notice of the adjudicator’s acceptance of the application is served on the claimant and the respondent, or

(b)  within such further time as the claimant and the respondent may agree.

(4)  For the purposes of any proceedings conducted to determine an adjudication application, an adjudicator—

(a)  may request further written submissions from either party and must give the other party an opportunity to comment on those submissions, and

(b)  may set deadlines for further submissions and comments by the parties, and

(c)  may call a conference of the parties, and

(d)  may carry out an inspection of any matter to which the claim relates.

(4A)  If any such conference is called, it is to be conducted informally and the parties are not entitled to any legal representation.

(5)  The adjudicator’s power to determine an adjudication application is not affected by the failure of either or both of the parties to make a submission or comment within time or to comply with the adjudicator’s call for a conference of the parties.

s 21: Am 2002 No 133, Sch 1 [33]; 2018 No 78, Sch 1[18].

(1)  An adjudicator is to determine—

(a)  the amount of the progress payment (if any) to be paid by the respondent to the claimant (the adjudicated amount), and

(b)  the date on which any such amount became or becomes payable, and

(c)  the rate of interest payable on any such amount.

(2)  In determining an adjudication application, the adjudicator is to consider the following matters only—

(a)  the provisions of this Act,

(b)  the provisions of the construction contract from which the application arose,

(c)  the payment claim to which the application relates, together with all submissions (including relevant documentation) that have been duly made by the claimant in support of the claim,

(d)  the payment schedule (if any) to which the application relates, together with all submissions (including relevant documentation) that have been duly made by the respondent in support of the schedule,

(e)  the results of any inspection carried out by the adjudicator of any matter to which the claim relates.

(3)  The adjudicator’s determination must—

(a)  be in writing, and

(b)  include the reasons for the determination (unless the claimant and the respondent have both requested the adjudicator not to include those reasons in the determination), and

(c)  be served by the adjudicator on the claimant and the respondent.

(4)  If, in determining an adjudication application, an adjudicator has, in accordance with section 10, determined—

(a)  the value of any construction work carried out under a construction contract, or

(b)  the value of any related goods and services supplied under a construction contract,

the adjudicator (or any other adjudicator) is, in any subsequent adjudication application that involves the determination of the value of that work or of those goods and services, to give the work (or the goods and services) the same value as that previously determined unless the claimant or respondent satisfies the adjudicator concerned that the value of the work (or the goods and services) has changed since the previous determination.

(5)  If the adjudicator’s determination contains—

(a)  a clerical mistake, or

(b)  an error arising from an accidental slip or omission, or

(c)  a material miscalculation of figures or a material mistake in the description of any person, thing or matter referred to in the determination, or

(d)  a defect of form,

the adjudicator may, on the adjudicator’s own initiative or on the application of the claimant or the respondent, correct the determination.

s 22: Am 2002 No 133, Sch 1 [34]–[36]; 2018 No 78, Sch 1[19].

(1)  In this section—

relevant date means—

(a)  the date occurring 5 business days after the date on which the adjudicator’s determination is served by the adjudicator on the respondent concerned, or

(b)  if the adjudicator determines a later date under section 22(1)(b)—that later date.

(2)  If an adjudicator determines that a respondent is required to pay an adjudicated amount, the respondent must pay that amount to the claimant on or before the relevant date.

s 23: Subst 2002 No 133, Sch 1 [37]. Am 2018 No 78, Sch 1[20].

(1)  If the respondent fails to pay the whole or any part of the adjudicated amount to the claimant in accordance with section 23, the claimant may—

(a)  request the authorised nominating authority to whom the adjudication application was made to provide an adjudication certificate under this section, and

(b)  serve notice on the respondent of the claimant’s intention to suspend carrying out construction work (or to suspend supplying related goods and services) under the construction contract.

(2)  A notice under subsection (1)(b) must state that it is made under this Act.

(3)  An adjudication certificate must state that it is made under this Act and specify the following matters—

(a)  the name of the claimant,

(b)  the name of the respondent who is liable to pay the adjudicated amount,

(c)  the adjudicated amount,

(d)  the date on which payment of the adjudicated amount was due to be paid to the claimant.

(4)  If any amount of interest that is due and payable on the adjudicated amount is not paid by the respondent, the claimant may request the authorised nominating authority to specify the amount of interest payable in the adjudication certificate. If it is specified in the adjudication certificate, any such amount is to be added to (and becomes part of) the adjudicated amount.

(5)  If the claimant has paid the respondent’s share of the adjudication fees in relation to the adjudication but has not been reimbursed by the respondent for that amount (the unpaid share), the claimant may request the authorised nominating authority to specify the unpaid share in the adjudication certificate. If it is specified in the adjudication certificate, any such unpaid share is to be added to (and becomes part of) the adjudicated amount.

s 24: Subst 2002 No 133, Sch 1 [37].

(1)  An adjudication certificate may be filed as a judgment for a debt in any court of competent jurisdiction and is enforceable accordingly.

(2)  An adjudication certificate cannot be filed under this section unless it is accompanied by an affidavit by the claimant stating that the whole or any part of the adjudicated amount has not been paid at the time the certificate is filed.

(3)  If the affidavit indicates that part of the adjudicated amount has been paid, the judgment is for the unpaid part of that amount only.

(4)  If the respondent commences proceedings to have the judgment set aside, the respondent—

(a)  is not, in those proceedings, entitled—

(i)  to bring any cross-claim against the claimant, or

(ii)  to raise any defence in relation to matters arising under the construction contract, or

(iii)  to challenge the adjudicator’s determination, and

(b)  is required to pay into the court as security the unpaid portion of the adjudicated amount pending the final determination of those proceedings.

s 25: Subst 2002 No 133, Sch 1 [38].

(1)  This section applies if—

(a)  a claimant fails to receive an adjudicator’s notice of acceptance of an adjudication application within 4 business days after the application is made, or

(b)  an adjudicator who accepts an adjudication application fails to determine the application within the time allowed by section 21(3).

(2)  In either of those circumstances, the claimant—

(a)  may withdraw the application, by notice in writing served on the adjudicator or authorised nominating authority to whom the application was made, and

(b)  may make a new adjudication application under section 17.

(3)  Despite section 17(3)(c), (d) and (e), a new adjudication application may be made at any time within 5 business days after the claimant becomes entitled to withdraw the previous adjudication application under subsection (2).

(4)  This Division applies to a new application referred to in this section in the same way as it applies to an application under section 17.

s 26: Am 2002 No 133, Sch 1 [39].

(1)  A claimant who has made an adjudication application for a payment claim can require a principal contractor for the claim to retain sufficient money to cover the claim out of money that is or becomes payable by the principal contractor to the respondent.

(2)  Such a requirement is made by serving on the principal contractor a request (a payment withholding request) in the form approved by the Secretary.

(3)  A payment withholding request must include a statement in writing by the claimant in the form of a statutory declaration declaring that the claimant genuinely believes that the amount of money claimed is owed by the respondent to the claimant.

(4)  A principal contractor for a claim is a person by whom money is or becomes payable to the respondent for work carried out or materials supplied by the respondent to the person as part of or incidental to the work or materials that the respondent engaged the claimant to carry out or supply.

(5)  A person who is served with a payment withholding request must, if the person is not (or is no longer) a principal contractor for the claim, give notice to that effect to the claimant concerned within 10 business days after receiving the request.

Maximum penalty—50 penalty units in the case of a corporation or 10 penalty units in the case of an individual.

Note—

A person may no longer be a principal contractor as a result of money owed to the respondent having been paid by the person before the payment withholding request was served.

s 26A: Ins 2010 No 103, Sch 1 [1]. Am 2013 No 93, Sch 1 [8]; 2016 No 55, Sch 1.6 [2]; 2018 No 78, Sch 1[21].

(1)  A principal contractor who has been served with a payment withholding request must retain, out of money owed to the respondent, the amount of money to which the payment claim relates (or the amount owed by the principal contractor to the respondent if that amount is less than the amount to which the payment claim relates).

(2)  The amount is only required to be retained out of money that is or becomes payable by the principal contractor to the respondent for work carried out or materials supplied by the respondent to the principal contractor as part of or incidental to the work or materials that the respondent engaged the claimant to carry out or supply.

(3)  The obligation to retain money under this section remains in force only until whichever of the following happens first—

(a)  the adjudication application for the payment claim is withdrawn and the claimant does not make a new adjudication application in accordance with section 26,

(a1)  the adjudicator fails to determine the adjudication application in accordance with section 21 and the claimant does not make a new adjudication application in accordance with section 26,

(b)  the respondent pays to the claimant the amount claimed to be due under the payment claim,

(c)  the claimant serves a notice of claim on the principal contractor for the purposes of section 6 of the Contractors Debts Act 1997 in respect of the payment claim,

(d)  a period of 20 business days elapses after a copy of the adjudicator’s determination of the adjudication application is served on the principal contractor.

(4)  A part payment of the amount claimed to be due under the payment claim removes the obligation under this section to retain money to the extent of the payment.

(5)  When the claimant’s adjudication application is determined, the claimant must serve a copy of the adjudicator’s determination on the principal contractor within 5 business days after the adjudicator’s determination is served on the claimant.

Maximum penalty—50 penalty units in the case of a corporation or 10 penalty units in the case of an individual.

s 26B: Ins 2010 No 103, Sch 1 [1]. Am 2018 No 78, Sch 1[22] [23].

(1)  If a principal contractor discharges the principal contractor’s obligation to pay money owed under a contract to the respondent in contravention of a requirement under this Division to retain the money, the principal contractor becomes jointly and severally liable with the respondent in respect of the debt owed by the respondent to the claimant (but only to the extent of the amount of money to which the contravention relates).

(2)  The principal contractor can recover as a debt from the respondent any amount that the claimant recovers from the principal contractor pursuant to a right of action conferred by this section.

s 26C: Ins 2010 No 103, Sch 1 [1].

(1)  An obligation under this Division to retain money owed by a principal contractor to the respondent operates (while the obligation continues) as a defence against recovery of the money by the respondent from the principal contractor.

(2)  Any period for which a principal contractor retains money pursuant to an obligation under this Division is not to be taken into account for the purposes of reckoning any period for which money owed by the principal contractor to the respondent has been unpaid.

(3)  A claimant who has served a payment withholding request on a principal contractor in connection with an adjudication application must, if the adjudication application is withdrawn, give the principal contractor written notice of the withdrawal of the application within 5 business days after it is withdrawn.

Maximum penalty—50 penalty units in the case of a corporation or 10 penalty units in the case of an individual.

(4)  The principal contractor is entitled to rely in good faith on a statement in writing by the respondent in the form of a statutory declaration that—

(a)  a specified amount claimed to be due under an adjudication application has been paid, or

(b)  an adjudication application has been withdrawn.

s 26D: Ins 2010 No 103, Sch 1 [1]. Am 2018 No 78, Sch 1[24].

(1)  An adjudicator may, in connection with an adjudication application and at the request of the claimant, direct the respondent to provide information to the claimant as to the identity and contact details of any person who is a principal contractor in relation to the claim.

(2)  A respondent must comply with a direction of an adjudicator under this section.

Maximum penalty—50 penalty units in the case of a corporation or 10 penalty units in the case of an individual.

(3)  A respondent must not, in purported compliance with a direction of an adjudicator under this section, provide information that the respondent knows is false or misleading in a material particular.

Maximum penalty—50 penalty units in the case of a corporation or 10 penalty units in the case of an individual.

s 26E: Ins 2010 No 103, Sch 1 [1]. Am 2018 No 78, Sch 1[24].

This Division (including any action taken by a claimant under this Division) does not limit or otherwise affect the taking of any other action by a claimant to enforce a payment claim or adjudication determination.

s 26F: Ins 2010 No 103, Sch 1 [1].

(1)  A claimant may suspend the carrying out of construction work (or the supply of related goods and services) under a construction contract if at least 2 business days have passed since the claimant has caused notice of intention to do so to be given to the respondent under section 15, 16 or 24.

(2)  The right conferred by subsection (1) exists until the end of the period of 3 business days immediately following the date on which the claimant receives payment for the amount that is payable by the respondent under section 15(1), 16(1) or 23(2).

(2A)  If the claimant, in exercising the right to suspend the carrying out of construction work or the supply of related goods and services, incurs any loss or expenses as a result of the removal by the respondent from the contract of any part of the work or supply, the respondent is liable to pay the claimant the amount of any such loss or expenses.

(3)  A claimant who suspends construction work (or the supply of related goods and services) in accordance with the right conferred by subsection (1) is not liable for any loss or damage suffered by the respondent, or by any person claiming through the respondent, as a consequence of the claimant not carrying out that work (or not supplying those goods and services) during the period of suspension.

s 27: Am 2002 No 133, Sch 1 [40] [41].

(1)  Subject to the regulations, the Minister—

(a)  may, on application made by any person, authorise the applicant to nominate adjudicators for the purposes of this Act, and

(b)  may withdraw any authority so given.

(1A)  The Minister may—

(a)  limit the number of persons who may, for the time being, be authorised under this section, and

(b)  refuse an application under subsection (1) if authorising the applicant would result in any such number being exceeded.

(1B)  An authority under this section may be given unconditionally or subject to conditions.

(2)  A person—

(a)  whose application for authority to nominate adjudicators for the purposes of this Act is refused (otherwise than on the ground referred to in subsection (1A)(b)), or

(b)  whose authority to nominate adjudicators is withdrawn or is given subject to conditions,

may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the Minister’s decision to take that action.

(3)  An authorised nominating authority may charge a fee for any service provided by the authority in connection with an adjudication application made to the authority. The amount that may be charged for any such service must not exceed the amount (if any) determined by the Minister.

(4)  The claimant and respondent are—

(a)  jointly and severally liable to pay any such fee, and

(b)  each liable to contribute to the payment of any such fee in equal proportions or in such proportions as the adjudicator to whom the adjudication application is referred may determine.

(5)  An authorised nominating authority must provide the Minister with such information as may be requested by the Minister in relation to the activities of the authority under this Act (including information as to the fees charged by the authority under this Act).

s 28: Am 2002 No 133, Sch 1 [42]–[44]; 2013 No 95, Sch 2.15; 2018 No 78, Sch 1[25] [26].

(1)  The Minister may, by order published on the NSW legislation website, make a code of practice to be observed by an authorised nominating authority in relation to its activities under this Act. The order is to set out the code of practice.

(2)  The code of practice takes effect on the day on which the order is published or, if the order specifies a later date for commencement, on the later date.

(3)  The Minister may, by order published on the NSW legislation website, amend or repeal the code of practice.

(4)  An authorised nominating authority that contravenes a provision of the code of practice that is identified in the code as an “offence provision” is guilty of an offence under this section.

Maximum penalty—50 penalty units.

(5)  The Minister may withdraw a person’s authority to nominate adjudicators for the purposes of this Act if the Minister is satisfied that the person has contravened a provision of the code of practice. Nothing in this subsection limits—

(a)  the grounds on which the Minister may withdraw any such authority under section 28, or

(b)  the right of a person under that section to apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the Minister’s decision to withdraw the authority.

s 28A: Ins 2018 No 78, Sch 1[27].

(1)  An adjudicator is entitled to be paid for adjudicating an adjudication application—

(a)  such amount, by way of fees and expenses, as is agreed between the adjudicator and the parties to the adjudication, or

(b)  if no such amount is agreed, such amount, by way of fees and expenses, as is reasonable having regard to the work done and expenses incurred by the adjudicator.

(2)  The claimant and respondent are jointly and severally liable to pay the adjudicator’s fees and expenses.

(3)  The claimant and respondent are each liable to contribute to the payment of the adjudicator’s fees and expenses in equal proportions or in such proportions as the adjudicator may determine.

(4)  An adjudicator is not entitled to be paid any fees or expenses in connection with the adjudication of an adjudication application if he or she fails to make a decision on the application (otherwise than because the application is withdrawn or the dispute between the claimant and respondent is resolved) within the time allowed by section 21(3).

(5)  Subsection (4) does not apply—

(a)  in circumstances in which an adjudicator refuses to communicate his or her decision on an adjudication application until his or her fees and expenses are paid, or

(b)  in such other circumstances as may be prescribed by the regulations for the purposes of this section.

s 29: Am 2002 No 133, Sch 1 [45].

(1)  An adjudicator is not personally liable for anything done or omitted to be done in good faith—

(a)  in exercising the adjudicator’s functions under this Act, or

(b)  in the reasonable belief that the thing was done or omitted to be done in the exercise of the adjudicator’s functions under this Act.

(2)  No action lies against an authorised nominating authority or any other person with respect to anything done or omitted to be done by the authorised nominating authority in good faith—

(a)  in exercising the nominating authority’s functions under this Act, or

(b)  in the reasonable belief that the thing was done or omitted to be done in the exercise of the nominating authority’s functions under this Act.

s 30: Subst 2002 No 133, Sch 1 [46].

(1)  Any document that by or under this Act is authorised or required to be served on a person may be served on the person—

(a)  by delivering it to the person personally, or

(b)  by lodging it during normal office hours at the person’s ordinary place of business, or

(c)  by sending it by post addressed to the person’s ordinary place of business, or

(d)  by email to an email address specified by the person for the service of documents of that kind, or

(d1)  by any other method authorised by the regulations for the service of documents of that kind, or

(e)  in the case of service by a party to a construction contract on another party to the construction contract—in the manner that may be provided under the construction contract.

(2)  Service of a document that is sent to a person’s ordinary place of business, as referred to in subsection (1)(c), is taken to have been effected when the document is received at that place.

(3)  The provisions of this section are in addition to, and do not limit or exclude, the provisions of any other law with respect to the service of documents.

(4)  In this section—

document includes written notice or determination.

serve includes give, send or otherwise provide.

s 31: Am 2002 No 133, Sch 1 [47]; 2017 No 25, Sch 1.7 [1] [2]; 2018 No 78, Sch 1[28]–[32].

(1)  Subject to section 34, nothing in this Part affects any right that a party to a construction contract—

(a)  may have under the contract, or

(b)  may have under Part 2 in respect of the contract, or

(c)  may have apart from this Act in respect of anything done or omitted to be done under the contract.

(2)  Nothing done under or for the purposes of this Part affects any civil proceedings arising under a construction contract, whether under this Part or otherwise, except as provided by subsection (3).

(3)  In any proceedings before a court or tribunal in relation to any matter arising under a construction contract, the court or tribunal—

(a)  must allow for any amount paid to a party to the contract under or for the purposes of this Part in any order or award it makes in those proceedings, and

(b)  may make such orders as it considers appropriate for the restitution of any amount so paid, and such other orders as it considers appropriate, having regard to its decision in those proceedings.

(1)  If, in any proceedings before the Supreme Court relating to any matter arising under a construction contract, the Court makes a finding that a jurisdictional error has occurred in relation to an adjudicator’s determination under this Part, the Court may make an order setting aside the whole or any part of the determination.

(2)  Without limiting subsection (1), the Supreme Court may identify the part of the adjudicator’s determination affected by jurisdictional error and set aside that part only, while confirming the part of the determination that is not affected by jurisdictional error.

s 32A: Ins 2018 No 78, Sch 1[33].

(1)  A corporation in liquidation cannot serve a payment claim on a person under this Part or take action under this Part to enforce a payment claim (including by making an application for adjudication of the claim) or an adjudication determination.

(2)  If a corporation in liquidation has made an adjudication application that is not finally determined immediately before the day on which it commenced to be in liquidation, the application is taken to have been withdrawn on that day.

s 32B: Ins 2018 No 78, Sch 1[33].

(1)  In this Part—

authorised officer means—

(a)  a person employed in the Department of Customer Service who is appointed under this Part as an authorised officer, or

(b)  an investigator appointed under section 18 of the Fair Trading Act 1987.

(2)  The Secretary may appoint persons employed in the Department of Customer Service as authorised officers for the purposes of this Part.

(3)  A person appointed under subsection (2) is to be provided by the Secretary with a certificate of identification.

(4)  An authorised officer must, when exercising on any premises any function of the authorised officer under this Part, produce the officer’s certificate of identification to any person apparently in charge of the premises who requests its production.

pt 3A, divs 1–4 (ss 32C–32Q): Ins 2018 No 78, Sch 1[34].

s 32C: Ins 2018 No 78, Sch 1[34]. Am 2022 No 59, Sch 3.6.

(1)  An authorised officer may exercise the functions conferred by this Part for any of the following purposes—

(a)  for the purpose of investigating, monitoring and enforcing compliance with the requirements imposed by or under this Act,

(b)  for obtaining information or records connected with the administration of this Act,

(c)  for the purpose of administering or executing this Act.

(2)  In this Part, a reference to an authorised purpose is a reference to any purpose referred to in subsection (1).

pt 3A, divs 1–4 (ss 32C–32Q): Ins 2018 No 78, Sch 1[34].

s 32D: Ins 2018 No 78, Sch 1[34].

A notice may be given under this Part to a person in respect of a matter even though the person is outside the State or the matter occurs outside the State, so long as the matter affects or relates to construction work carried out in the State or to related goods and services supplied in the State.

pt 3A, divs 1–4 (ss 32C–32Q): Ins 2018 No 78, Sch 1[34].

s 32E: Ins 2018 No 78, Sch 1[34].

A power conferred by this Division may be exercised whether or not a power of entry under Division 3 is being exercised.

pt 3A, divs 1–4 (ss 32C–32Q): Ins 2018 No 78, Sch 1[34].

s 32F: Ins 2018 No 78, Sch 1[34].

(1)  An authorised officer may, by notice in writing given to a person, require the person to furnish to the officer such information or records (or both) as the officer may require for an authorised purpose.

(2)  A notice under this Division must specify the manner in which information or records are required to be furnished and a reasonable time by which the information or records are required to be furnished.

(3)  A notice under this Division may only require a person to furnish existing records that are in the person’s possession or that are within the person’s power to obtain lawfully.

(4)  The person to whom any record is furnished under this Division may take copies of it.

(5)  If any record required to be furnished under this Division is in electronic, mechanical or other form, the notice requires the record to be furnished in written form, unless the notice otherwise provides.

pt 3A, divs 1–4 (ss 32C–32Q): Ins 2018 No 78, Sch 1[34].

s 32G: Ins 2018 No 78, Sch 1[34].

(1)  An authorised officer may require a person whom the authorised officer suspects on reasonable grounds to have knowledge of matters in respect of which information is reasonably required for an authorised purpose to answer questions in relation to those matters.

(2)  An authorised officer may, by notice in writing, require a corporation to nominate, in writing within the time specified in the notice, a director or officer of the corporation to be the corporation’s representative for the purpose of answering questions under this section.

(3)  Answers given by a person nominated under subsection (2) bind the corporation.

(4)  An authorised officer may, by notice in writing, require a person to attend at a specified place and time to answer questions under this section if attendance at that place is reasonably required in order that the questions can be properly put and answered.

(5)  The place and time at which a person may be required to attend under subsection (4) is to be—

(a)  a place and time nominated by the person, or

(b)  if the place and time nominated is not reasonable in the circumstances or a place and time is not nominated by the person, a place and time nominated by the authorised officer that is reasonable in the circumstances.

pt 3A, divs 1–4 (ss 32C–32Q): Ins 2018 No 78, Sch 1[34].

s 32H: Ins 2018 No 78, Sch 1[34].

(1)  An authorised officer may enter premises at any reasonable time.

(2)  Entry to premises may be effected with or without the authority of a search warrant.

pt 3A, divs 1–4 (ss 32C–32Q): Ins 2018 No 78, Sch 1[34].

s 32I: Ins 2018 No 78, Sch 1[34].

This Division does not empower an authorised officer to enter a part of premises that is used predominantly for residential purposes without the permission of the occupier or the authority of a search warrant.

pt 3A, divs 1–4 (ss 32C–32Q): Ins 2018 No 78, Sch 1[34].

s 32J: Ins 2018 No 78, Sch 1[34].

(1)  An authorised officer under this Act may apply to an issuing officer for the issue of a search warrant if the authorised officer believes on reasonable grounds that—

(a)  a requirement imposed by or under this Act is being or has been contravened at any premises, or

(b)  there is, in or on any premises, matter or a thing that is connected with an offence under this Act or the regulations.

(2)  An issuing officer to whom such an application is made may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising an authorised officer named in the warrant and any other person named in the warrant—

(a)  to enter the premises, and

(b)  to exercise any function of an authorised officer under this Part.

(3)  Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this section.

(4)  Without limiting the generality of section 71 of the Law Enforcement (Powers and Responsibilities) Act 2002, a police officer may—

(a)  accompany an authorised officer executing a search warrant issued under this section, and

(b)  take all reasonable steps to assist the authorised officer in the exercise of the officer’s functions under this section.

(5)  In this section—

issuing officer means an authorised officer within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002.

pt 3A, divs 1–4 (ss 32C–32Q): Ins 2018 No 78, Sch 1[34].

s 32K: Ins 2018 No 78, Sch 1[34].

An authorised officer proposing to exercise a power of entry under this Division may, by notice in writing given to the owner or occupier of the premises, require the owner or occupier to provide such reasonable assistance and facilities as are specified in the notice within a specified time and in a specified manner.

pt 3A, divs 1–4 (ss 32C–32Q): Ins 2018 No 78, Sch 1[34].

s 32L: Ins 2018 No 78, Sch 1[34].

(1)  An authorised officer may, at any premises lawfully entered, do anything that in the opinion of the authorised officer is reasonably necessary to be done for an authorised purpose, including (but not limited to) the things specified in subsection (2).

(2)  An authorised officer may do any or all of the following—

(a)  make examinations and inquiries that the authorised officer considers necessary,

(b)  direct a person to produce records for inspection,

(c)  examine and inspect records,

(d)  copy records,

(e)  seize anything that the authorised officer has reasonable grounds for believing is connected with an offence against this Act or the regulations,

(f)  do anything else authorised by or under this Act.

(3)  The power to seize anything connected with an offence includes a power to seize—

(a)  a thing with respect to which the offence has been committed, and

(b)  a thing that will afford evidence of the commission of the offence, and

(c)  a thing that was used for the purpose of committing the offence.

(4)  The power to do a thing under this section includes a power to arrange for that thing to be done.

(5)  A power to do something under this section in relation to a thing may be exercised without the consent of the owner of the thing.

(6)  In this section, a reference to an offence includes a reference to an offence that there are reasonable grounds for believing has been committed.

pt 3A, divs 1–4 (ss 32C–32Q): Ins 2018 No 78, Sch 1[34].

s 32M: Ins 2018 No 78, Sch 1[34].

(1)  An authorised officer who seizes any thing under this Division on any premises must issue the person apparently in charge of the premises with a written receipt for the thing seized.

(2)  An authorised officer may retain any thing seized under this Division until the completion of proceedings (including proceedings on appeal) in which it may be evidence.

(3)  A record may only be retained under subsection (2) if the person from whom the record was seized is provided, within a reasonable time after the seizure, with a copy of the record certified by the authorised officer as a true copy. The copy is, as evidence, of equal validity to the record of which it is certified to be a copy.

(4)  Subsection (2) ceases to have effect in relation to anything seized if, on the application of a person aggrieved by the seizure, the court in which proceedings referred to in that subsection are commenced so orders.

pt 3A, divs 1–4 (ss 32C–32Q): Ins 2018 No 78, Sch 1[34].

s 32N: Ins 2018 No 78, Sch 1[34].

(1)  A person must not, without reasonable excuse, refuse or fail to comply with a requirement made of the person under this Part.

Maximum penalty—

(a)  in the case of a corporation—40 penalty units, or

(b)  in the case of an individual—20 penalty units.

(2)  A person is not guilty of an offence of failing to comply with a requirement under this Part to furnish records or information or to answer a question unless the person was warned on that occasion that a failure to comply is an offence.

pt 3A, divs 1–4 (ss 32C–32Q): Ins 2018 No 78, Sch 1[34].

s 32O: Ins 2018 No 78, Sch 1[34].

A person must not provide information or a record or give an answer in purported compliance with a requirement made under this Part knowing that the information, record or answer is false or misleading in a material respect.

Maximum penalty—

(a)  in the case of a corporation—500 penalty units, or

(b)  in the case of an individual—100 penalty units.

pt 3A, divs 1–4 (ss 32C–32Q): Ins 2018 No 78, Sch 1[34].

s 32P: Ins 2018 No 78, Sch 1[34].

(1)  A person must not, without reasonable excuse, delay, hinder or obstruct an authorised officer in the exercise of the officer’s functions under this Part.

Maximum penalty—

(a)  in the case of a corporation—40 penalty units, or

(b)  in the case of an individual—20 penalty units.

(2)  It is a defence to an offence under this section if the person charged establishes that the authorised officer failed to produce the authorised officer’s certificate of identification when requested to do so.

pt 3A, divs 1–4 (ss 32C–32Q): Ins 2018 No 78, Sch 1[34].

s 32Q: Ins 2018 No 78, Sch 1[34].