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BIFA Refresher Part 2 – Entitlement to claim a progress payment

Our last article looked at the key differences between the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (BIFA) regime and the repealed Building and Construction Industry Payments Act 2004 (Qld) (BCIPA) regime.  In this article we look at whether a party (called the Claimant) is entitled to claim a progress payment under the BIFA.

Before you consider anything else, you should first make sure that you hold the appropriate class(es) of contractor’s licence under the Queensland Building and Construction Commission Act 1991 (Qld) (QBCCA) and its regulations for all of the building work that you have carried out or undertaken to carry out.  Section 42 of the QBCCA makes it an offence not to hold the appropriate class of licence and limits the amount you can recover.  As a result, case law had decided that the BIFA cannot be used if you are not licensed for even a small amount of the building work you have carried out or undertaken to carry out.

Section 70 of the BIFA deals with a Claimant’s right to progress payments and, in order to be entitled to a progress payment under section 70 of the BIFA, you will need to answer YES to the questions below.
If you have any concerns about whether you are entitled to recover payment under BIFA, feel free to contact us to get in touch.

For more information on any of these please click on the relevant question.

Q1: Is there a contract, agreement or other arrangement?

Q2: Is that contract, agreement or other arrangement a ‘construction contract’ between the Claimant and the Respondent for the purposes of BIFA?


Q3: Has the Claimant:
(a) carried out ‘construction work’, under that contract, agreement or other arrangement?
AND/OR
(b) supplied related goods and services under that contract, agreement or other arrangement?

Q4: Was the construction work undertaken, or related goods and services supplied, within the State of Queensland?

Q5: Is there is a reference date?

 

In addition, if you have given a Notice of Claim under Chapter 4 of BIFA (formerly known as a Subcontractor’s Charge) for some or all of the same work, you are not entitled to serve a payment claim because the two actions for recovery of payment are not allowed to be made contemporaneously as a result of the provisions in section 62 of the BIFA.

If you have any concerns about whether you are entitled to recover payment under BIFA, feel free to contact us to get in touch

Disclaimer
The content of this blog article is intended to provide general information as a summary of the subject matter, which is current at the time of publication. It is intended for information purposes only and should not be regarded as advice. Specialist advice should be obtained about your specific circumstances before taking action on any issue dealt with in this publication.