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This is a Bill, not an Act. For current law, see the Acts databases.
Serial
92
Construction Contracts (Security of
Payments) Legislation Amendment
Bill 2019
Ms
Fyles
A Bill for an Act to amend the Construction Contracts (Security of Payments) Act 2004, the Community Justice Centre Act 2005 and the Construction Contracts (Security of Payments) Regulations 2005
NORTHERN TERRITORY OF AUSTRALIA
CONSTRUCTION CONTRACTS (SECURITY OF PAYMENTS) LEGISLATION AMENDMENT ACT 2019
____________________
Act No. [ ] of 2019
____________________
Table of provisions
4A Meaning
of high value construction
contract
7A Meaning
of payment
claim
10A High
value construction contract may contract
out
45 Determination
may be enforced as order of court
Part
5 Review by
NTCAT
58 Review
by NTCAT
Division
3 Transitional matters
for Construction Contracts (Security of Payments) Legislation Amendment
Act 2019
68 Existing payment claims
69 Registration
of adjudicators
Schedule
2 Reviewable decisions
and affected
persons
5A High
value construction contract amount
5B High
value construction contract dispute resolution
mechanism
12A Information
to be included in application or nomination for renewal of
registration
NORTHERN
TERRITORY OF AUSTRALIA
____________________
Act No. [ ] of 2019
____________________
An Act to amend the Construction Contracts (Security of Payments) Act 2004, the Community Justice Centre Act 2005 and the Construction Contracts (Security of Payments) Regulations 2005
[Assented to [ ] 2019]
[Introduced [ ] 2019]
The Legislative Assembly of the Northern Territory enacts as follows:
Part
1 Preliminary
matters
1 Short
title
This Act may be cited as the Construction Contracts (Security of Payments) Legislation Amendment Act 2019.
This Act commences on the day fixed by the Administrator by Gazette notice.
Part 2 Amendment
of Construction Contracts (Security of Payments) Act
2004
3 Act
amended
This Part amends the Construction Contracts (Security of Payments) Act 2004.
4 Section 4 amended (Definitions)
(1) Section 4, definitions payment claim and working day
omit
(2) Section 4
insert
high value construction contract, see section 4A.
payment claim, see section 7A.
working day means a day other than:
(a) a Saturday or a Sunday; or
(b) a public holiday; or
(c) a day in the period beginning on 25 December in a year and ending on 7 January in the following year.
(3) Section 4, at the end
insert
Note for section 4
The Interpretation Act 1978 contains definitions and other provisions that may be relevant to this Act.
After section 4
insert
4A Meaning of high value construction contract
A high value construction contract means a construction contract under which the amount payable for construction work is equal to or greater than the amount prescribed by regulation.
6 Section 5 amended (Construction contract)
After section 5(1)
insert
(1A) A contract remains a construction contract for this Act even if the contract has expired or has been terminated.
7 Section 6 amended (Construction work)
Section 6(2)(c)
omit
After section 7
insert
(1) A payment claim means a claim made under a construction contract:
(a) by the contractor to the principal for payment of an amount in relation to the performance by the contractor of its obligations under the contract; or
(b) by the principal to the contractor for payment of an amount in relation to the performance or non-performance by the contractor of its obligations under the contract; or
(c) for a construction contract mentioned in section 5(1A) that has been terminated – by the contractor to the principal for payment of an amount in relation to an accrued right for the contract; or
(d) for a construction contract mentioned in section 5(1A) that has been terminated – by the principal to the contractor for payment of an amount in relation to an accrued right for the contract.
(2) A payment claim may include a matter:
(a) that was included in a previous payment claim; and
(b) that has not been the subject of a determination under section 33(1)(b).
Examples for subsection (2)
1 An amount that was included in a previous payment claim but was not dealt with at that time.
2 An amount that was included in a previous claim, but that has been subsumed into a later claim (such as a rolling claim).
3 An amount that was included in a claim that was not dealt with substantively because of procedural non-compliance.
9 Section 10 amended (No contracting out)
Section 10(1)
omit
A
insert
Subject to section 10A, a
After section 10
insert
10A High value construction contract may contract out
(1) Despite section 10, the parties to a high value construction contract may agree to have payment disputes adjudicated other than under Part 3 if:
(a) the agreement is a term of the high value construction contract; and
(b) the contract contains a dispute resolution mechanism in accordance with the Regulations.
(2) However, the agreement does not apply in relation to a contract entered into before the commencement unless:
(a) when the contract was entered into, it contained a dispute resolution mechanism that satisfies subsection (1)(b) as if the Regulations had commenced; and
(b) the parties expressly agree in writing after the commencement that the dispute resolution mechanism is to apply.
(3) If a high value construction contract contains a dispute resolution mechanism mentioned in subsection (1)(b), Part 3 does not apply.
(4) In this section:
commencement means the commencement of section 10 of the Construction Contracts (Security of Payments) Legislation Amendment Act 2019.
11 Section 27 amended (Who can apply for adjudication)
Section 27(a)
omit, insert
(a) the matter has already been the subject of a valid determination; or
12 Section 28 amended (Applying for adjudication)
(1) Section 28(1)
omit
90 days
insert
65 working days
(2) Section 28(3)
omit, insert
(3) The first day of the time period mentioned in subsection (1) is the day after the payment dispute arises, as set out in section 8.
13 Section 29 amended (Responding to application for adjudication)
(1) Section 29(1)
omit
10
insert
15
(2) After section 29(2)
insert
(3) However, in the response, the party responding to the application for adjudication is not required to provide information or documents that have already been provided by the applicant in the application.
14 Section 30 amended (Appointment of adjudicator in absence of agreed appointment)
(1) After section 30(1)
insert
(1A) Within 2 working days of being served with an application for adjudication and before appointing a registered adjudicator in accordance with subsection (1)(a), the prescribed appointer may consult with the parties about the qualifications that are required for the person who will be appointed as adjudicator.
Note for subsection (1A)
The period mentioned in subsection (1) applies regardless of whether the prescribed appointer consults with the parties under this subsection.
(2) After section 30(3)
insert
(4) If satisfied that the appointed adjudicator is unable, for any reason, to perform an adjudication, the prescribed appointer or the Registrar (whichever appointed the adjudicator) may appoint a substitute adjudicator at any time before a determination is made.
15 Section 31 amended (Disqualification of adjudicator on grounds of conflict of interest)
Section 31(8)
omit
16 Section 32 repealed (Review of disqualification decision)
Section 32
repeal
17 Section 33 amended (Adjudicator's functions)
(1) After section 33(1)(a)(ii)
insert
(iia) the dispute that is the subject of the application is also the subject of another application that has not been dismissed or determined; or
(2) After section 33(1)
insert
(1A) Despite subsection (1)(a), the appointed adjudicator may proceed to determine an application that contains technical deficiencies if those deficiencies do not affect the merits of the application, and the Act has been substantially complied with.
(1B) If the construction contract provides for liquidated damages, an amount determined under subsection (1)(b) to be payable may include an amount assessed as liquidated damages.
(3) Section 33(2), after "it under"
insert
subsection (2B) or
(4) After section 33(2)
insert
(2A) Despite subsection (2), an application is not taken to be dismissed when the time ends if proceedings have been commenced in the Supreme Court in relation to the matter the subject of the application.
(2B) The appointed adjudicator may, without the consent of the parties, extend the prescribed time by an additional 5 working days if the adjudicator is satisfied an extension of time is necessary to ensure procedural fairness in the making of a determination.
Note for subsection (2B)
This subsection does not affect the ability of an appointed adjudicator to extend time under section 34(3)(a).
18 Section 34 amended (Adjudication procedure)
Section 34(3)
omit, insert
(3) An appointed adjudicator may do any of the following:
(a) with the Registrar's consent, extend the time for making a determination under section 33(1);
(b) if it will not adversely affect the ability of the adjudicator to adjudicate the payment disputes – adjudicate simultaneously 2 or more payment disputes between the same parties;
(c) if it will not adversely affect the ability of the adjudicator to adjudicate the payment disputes – adjudicate the payment dispute simultaneously with another payment dispute between different parties.
19 Section 39 amended (Dismissed applications)
(1) Section 39(2)(b)
omit
28
insert
20 working
(2) After section 39(2)
insert
(3) Further, if, under section 33(2), an application for an adjudication of a payment dispute is taken to be dismissed, the adjudicator must give written notice of the deemed dismissal and reasons for it to the Registrar.
Note for section 39
Section 42 of the Northern Territory Civil and Administrative Tribunal Act 2014 does not apply to a deemed dismissal under section 33(2).
Section 45
repeal, insert
45 Determination may be enforced as order of court
(1) A party entitled to be paid an amount under a determination may enforce the determination by filing in a court of competent jurisdiction:
(a) a copy of the determination that the Registrar has certified to be a true copy; and
(b) an affidavit as to the amount not paid under the determination.
(2) On filing a copy of the determination under subsection (1), the determination is taken to be an order of the court, and may be enforced accordingly.
(3) This section applies regardless of whether the determination is made before or after the commencement of this subsection.
21 Section 47 amended (Effect of this Part on civil proceedings)
Section 47(3)
omit
under section 48
insert
of a decision made under section 33(1)(a)
22 Section 48 repealed (Review of adjudicator's decision to dismiss application)
Section 48
repeal
23 Section 52 amended (Registering adjudicators)
(1) Section 52(3) and (4)
omit, insert
(3) The Registrar may refuse to register a person as a registered adjudicator if the person is not eligible to be registered.
(4) The Registrar may renew the registration of a person who is a registered adjudicator within the period determined by the Registrar before the registration expires:
(a) on the application of the person; or
(b) on the nomination of a prescribed appointer.
(4A) The Registrar may refuse to renew a person's registration as a registered adjudicator if the person is no longer eligible to be registered.
(4B) A registration or renewal of a registration under this section, unless sooner cancelled, remains in force for a period of 5 years.
(4C) The Regulations may prescribe the following:
(a) any information to be included in an application or nomination under this section;
(b) a fee to be paid for making an application or nomination under this section.
(2) Section 52(7)
omit
24 Section 53 repealed (Review of registration decision)
Section 53
repeal
25 Section 54 amended (Publication of adjudicators’ decisions)
After section 54(2)
insert
(3) The Registrar may provide relevant information regarding the result or a report of the decision of a registered adjudicator to a related regulatory body.
Example for subsection (3)
The following are examples of related regulatory bodies:
(a) the Australian Building and Construction Commissioner established under the Building and Construction Industry (Improving Productivity) Act 2016 (Cth);
(b) the Director of Building Control appointed under section 7 of the Building Act 1993.
Part 5
repeal, insert
(1) NTCAT has jurisdiction to review a decision (a reviewable decision) specified in Schedule 2.
(2) An affected person, for a reviewable decision, is a person specified in Schedule 2 for the decision.
(3) An affected person for a reviewable decision may apply to NTCAT for review of the decision.
(4) Subsection 5 applies if, on the review of a decision made under section 33(1)(a), the decision is set aside and referred back to the appointed adjudicator under section 50(1)(c) of the Northern Territory Civil and Administrative Tribunal Act 2014 for reconsideration.
(5) The adjudicator must make a determination under section 33(1)(b) within 10 working days after the date on which the decision is set aside or any extension of that time as permitted under this Act.
Note for section 58
The Northern Territory Civil and Administrative Tribunal Act 2014 sets out the procedure for applying to NTCAT for review and other relevant matters in relation to reviews.
27 Part 7, Division 1 heading inserted
Before section 66, in Part 7
insert
Division 1 Repeals
28 Part 7, Division 2 heading inserted
After section 66
insert
Division 2 Transitional matters for Justice Legislation Amendment Act 2006
29 Part 7, Division 3 inserted
After section 67
insert
Division 3 Transitional matters for Construction Contracts (Security of Payments) Legislation Amendment Act 2019
(1) A payment claim that, on the commencement, had not been decided continues to be dealt with under this Act as it was in force immediately before the commencement.
(2) In this section:
commencement means the commencement of section 8 of the Construction Contracts (Security of Payments) Legislation Amendment Act 2019.
69 Registration of adjudicators
(1) A person who, immediately before the commencement, is registered as an adjudicator continues to be registered as an adjudicator for 5 years after the commencement.
(2) Before the expiry of the period mentioned in subsection (1), the Registrar may renew the registration of a person who is a registered adjudicator in accordance with section 52(4).
(3) In this section:
commencement means the commencement of section 23 of the Construction Contracts (Security of Payments) Legislation Amendment Act 2019.
30 Schedule amended (Implied provisions)
(1) Schedule heading
omit, insert
Schedule 1 Implied provisions
(2) Schedule, clause 5(1)(h)
omit
(3) Schedule, clause 6(2)(a)
omit
14
insert
10 working
(4) Schedule, clause 6(2)(b)
omit
28
insert
20 working
After Schedule 1
insert
Schedule 2 Reviewable decisions and affected persons
section 58
|
Reviewable
decision
|
Affected person
|
|---|---|
|
A decision of the Registrar under section 31(3) to
make a declaration to disqualify an appointed adjudicator
|
The appointed adjudicator or a party to the payment
dispute
|
|
A decision of an appointed adjudicator under section
33(1)(a) to dismiss an application
|
The applicant
|
|
A decision of the Registrar under section 52(3) to
refuse to register a person
|
The applicant or the nominator
|
|
A decision of the Registrar under section 52(4A) to
refuse to renew a registration
|
The applicant or the nominator
|
|
A decision of the Registrar under section 52(5) to
cancel a person's registration
|
The registered adjudicator
|
The Schedule has effect.
Part 3 Amendment
of Community Justice Centre
Act 2005
33 Act
amended
This Part amends the Community Justice Centre Act 2005.
34 Section 20 amended (When Director may act)
Section 20(2)(a)
omit
$10 000
insert
the amount prescribed by regulation
35 Section 22 amended (Power of adjudicator)
Section 22(1)
omit
$10 000
insert
the amount prescribed by regulation
Part 4 Amendment
of Construction Contracts (Security of Payments) Regulations
2005
36 Regulations
amended
This Part amends the Construction Contracts (Security of Payments) Regulations 2005.
37 Regulations 5A and 5B inserted
After regulation 5
insert
5A High value construction contract amount
For section 4A of the Act, definition high value construction contract, the amount prescribed is 500 000 000 monetary units.
5B High value construction contract dispute resolution mechanism
For section 10A(1)(b) of the Act, a dispute resolution mechanism must:
(a) provide a process for the parties to the high value construction contract to undertake a dispute resolution; and
(b) require that the parties undertake the dispute resolution:
(i) in good faith; and
(ii) in a timely manner; and
(c) require that, in the event that the payment dispute is not resolved within 45 working days, payments between the parties (and to third parties) under the contract continue pending resolution of the payment dispute by a court or arbitration process; and
(d) state that the dispute resolution mechanism continues to apply even if the contract has expired or has been terminated; and
(e) be set out in a clear and unambiguous manner.
38 Regulation 12 amended (Information to be included in application or nomination)
(1) Regulation 12, heading, after "nomination"
insert
for registration
(2) Regulation 12(1)
omit
An
insert
For section 52(4C)(a) of the Act, an
After section 12
insert
12A Information to be included in application or nomination for renewal of registration
(1) For section 52(4C)(a) of the Act, an application or nomination under section 52(4) of the Act must state whether the applicant or nominee knows of any material changes to the registered adjudicator's eligibility to be registered since being registered under section 52(2) of the Act.
(2) In addition, the application or nomination must be accompanied by an authorisation by the applicant or nominee for the Registrar to obtain a criminal history check of the applicant or nominee.
40 Regulation 13 amended (Fee for application or nomination)
Regulation 13
omit
52(3)
insert
52(4C)(b)
41 Regulation 14 amended (Information to be given by registered adjudicator)
(1) Regulation 14(1)
omit
all words from "registered adjudicator" to "adjudicate"
insert
following information is required for each application
(2) Regulation 14(1)(c)(ii)
omit
to the payment dispute
insert
named in the application
(3) Regulation 14(1)(d)
omit, insert
(d) the nature of the work done or to be done to which the application for adjudication relates;
(4) Regulation 14(1)(f)
omit
dispute
insert
claim
(5) Regulation 14(1)(i)
omit
for the application
(6) After regulation 14(1)(i)(i)
insert
(ia) how the amount in subparagraph (i) was calculated; and
Part 5 Repeal of
Act
42 Repeal
of Act
This Act is repealed on the day after it commences.
Schedule Construction Contracts (Security of Payments) Act 2004 further amended
section 32
|
Provision
|
Amendment
|
|
|---|---|---|
|
|
omit
|
insert
|
|
section 13, heading
|
50 days
|
30 working days
|
|
section 13
|
50 days
28 days
|
30 working days
30 working days
|
|
sections 16 to 24
|
the Schedule
|
Schedule 1
|
|
section 31(6B)
|
14
days
(all references) |
10 working days
|
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