1 September 2015
Now that 1 July 2015 has passed some important amendments have been applied to the Queensland Building and Constructions Commission and Other Legislation Amendments 2014 Act (Qld) (“Amending Act”) and it is important for current building licence holders in Queensland to familiarise themselves with such amendments.
‘Construction Company’ as a definition
A ‘Construction Company’ has been defined in the Amending Act as “…a company that directly or indirectly carries out building work or building work services…” In days past a building licence holder (“Licence Holder”) that ran a company that was found to be insolvent, no matter the type of company, would be subject to the ire of the QBCC and would have their licence cancelled.
For the purposes of practical fairness it has long been contended by the industry and now finally adopted by the QBCC that a Licence Holder will only be subject to a licence cancellation should the company (that has been wound up in insolvency) fall into the category of Construction Company.
Reduction of exclusion period
From 1 July 2015, the statutory exclusion period for Excluded Individuals will be reduced from 5 years to 3 years. This means that a person that has had a building licence cancelled by the Queensland Building and Constructions Commission (“QBCC”) by way of an insolvency event will be able to re-apply for a building licence after the period of 3 years has ended.
However, it is important to note that the penalty for a Licence Holder that has multiple defaults recorded remains a life ban under legislation.
Applications for permitted individuals to reinstate licenses
Prior to July 2015, Excluded Individuals that had suffered the cancellation of their licence through bankruptcy and/or through the winding up of a company that they were a director of (“Insolvency Event”) were allowed to make an application to the QBCC to have their building licence reinstated if they could prove that the Insolvency Event was out of their control. With the enforcement of the Amending Act as at 1 July 2015 this has now changed.
The previous ability to make an application for the reinstatement of a building licence has been dissolved and now the QBCC allows for an Excluded Individual to make submissions to the QBCC to prove that they were not the subject of an Insolvency Event. Such submissions must be made within a 28 day period after receipt of notification from the QBCC and it is incredibly important that a Licence Holder abide by these strict timeframes to avoid the cancellation of their building licence unnecessarily.
There have also been changes to the Building and Construction Industry Payments Act (“BCIPA”). Those changes include that all applications for adjudication must now be submitted via the QBCC. Further, there have been a number of changes to the submission time-frames and the Master Builders have supplied a summary table of the time-frame changes as follows:
|Pre-amendment||Excluding GST||Excluding GST|
|All claims||Claim < $750,000||Claim > $750,000.00|
|A. Payment claim|
|Time for claimant to make payment claim after construction work last carried out / related goods and services last supplied||12 months||6 months||6 months|
|Time for claimant to make payment claim after construction work last carried out or related goods and services last supplied if payment claim is in relation to recovery of a final progress payment (including recovery of retention)||12 months||The later of the period prescribed in the contract, or 28 days after expiry of defects liability period.||The later of the period prescribed in the contract, or 28 days after expiry of defects liability period.|
|B. Payment schedule|
|Time for respondent to provide a payment schedule if progress payment served less than 91 days after reference date||10 business days||10 business days||15 business days|
|Time for respondent to provide a payment schedule if progress payment served more than 91 days after reference date||10 business days||10 business days||30 business days|
|C. Adjudication application|
|Time for claimant to serve adjudication application||10 business days||10 business days||10 business days|
|D. Adjudication response|
|Time for respondent to provide an adjudication response||5 business days||10 business days||15 business days (+ adjudicator can grant up to an additional 15 days)|
|E. Claimant reply to response|
|Time for claimant to provide reply to adjudication response||N/A||N/A||15 business days (+ adjudicator can grant up to an additional 15 days)|
The changes are to assist in clarifying what has been a relatively complex system of time-frames and adjudication choices. It remains to be seen if this will be successful.
Author: Tim Jones, Paralegal
Published: September 2015