Traps and Pitfalls in the Adjudication Process

WHEN IS IT APPROPRIATE TO USE THE PHRASE:
“This is a payment claim made under the Building and Construction Industry Payments Act 2004 (Qld)”

By inserting the phrase “This is a payment claim made under the Building and Construction Industry Payments Act 2004 (Qld)” (‘the Act’) on your tax invoices you are asserting that your tax invoice is a ‘payment claim’ under the Act.

We recommend that you do not put the phrase “This is a payment claim made under the Building and Construction Industry Payments Act 2004 (Qld)” on your tax invoices if you do not intend to apply for adjudication of your payment claim (tax invoice) or if it is your final payment claim and no other work will be undertaken.

By placing this phrase on your tax invoices when you do not intend to proceed to adjudication, especially when it is on your final payment claim, you run the risk of excluding yourself from putting in another (identical) payment claim for the same work and the same amount if the Respondent fails to pay your payment claim amount.

Justice Fryberg in the Queensland Supreme Court case of Doolan v Rubikcon (Qld) Pty Ltd & Ors [2007] QSC 168 held that section 17(5) of the Building and Construction Industry Payments Act 2004 (Qld) prohibits a claimant from serving an identical payment claim on a respondent. An identical payment claim is one for the same amount of money and for the same scope of work.

Pursuant to Doolan v Rubikcon (Qld) Pty Ltd & Ors, a Claimant cannot serve a second payment claim for the precise amount and work as it has done in a previously abandoned payment claim. In this case Justice Fryberg held that the second (identical) payment claim was invalid despite the fact it had been issued on or after a subsequent reference date.

In light of this case, we strongly recommend that you reserve the use of this phrase for when you are fully prepared to proceed to adjudication to resolve a dispute with respect to unpaid progress payments for construction work or construction related goods and services undertaken and supplied in Queensland under a construction contract.

If you have any questions or required further information in relation to this matter please contact one of friendly and experienced staff members at Building & Construction Payment Solutions.