A recent decision handed down in the Brisbane Magistrates Court could have far reaching effects for building contractors and subcontractors throughout Queensland.
In a ruling on a summary judgement application for the unpaid portion of a progress claim under a contract to carry out remedial waterproofing and other work done by contractors and sub-contractors on a local development site, Acting Magistrate Robyn Carmody concluded that a Building and Construction Industry Payments Act (“BCIPA”) payment claim can include work that the contractor was not licenced to do but his subcontractor was, and it can also include work still to be done after the invoice date for the final claim.
The Magistrate found that while such a situation “may fly in the face of the concept of a final notice …the parties are at liberty to agree otherwise.” It seems that it all depends on what is said and done by the parties in discussing and negotiating that “final invoice”.
Of equal interest to building contractors and others struggling to navigate the swirling waters of BCIPA will no doubt be her Honour’s observation that, even in circumstances where a response to a ‘payment claim’ was not intended to be a ‘payment schedule’, it may in fact be just that, provided it meets the criteria set out in the Act. The decision opens the door a little bit wider on how BCIPA claims may be determined, and how the BCIPA regime may be best utilised by both applicants and respondents.
For a comprehensive read of the case, view Andrew Shield’s article published via Linked In.
