In forceAmended2020 Revised Edition

Contents

Building and Construction Industry Security of Payment Act 2004 · 2020 Revised Edition · Part 2 · Rights to Progress Payments

8. Due date for payment

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Amended

Last amended by an amending law of 2018.

(1)

Where a construction contract provides for the date on which a progress payment becomes due and payable, the progress payment becomes due and payable on the earlier of the following dates:

(a)

the date as specified in or determined in accordance with the terms of the contract;

(b)

the date immediately upon the expiry of 35 days after —

(i)

if the claimant is a taxable person under the Goods and Services Tax Act 1993 who has submitted to the respondent a tax invoice for the progress payment — the date the tax invoice is submitted to the respondent; or

(ii)

in any other case — the date on which or the period within which the payment response is required to be provided under section 11(1) (whether or not a payment response is provided).

(2)

Where a construction contract does not provide for the date on which a progress payment becomes due and payable, the progress payment becomes due and payable immediately upon the expiry of 14 days after —

(a)

(b)

in any other case — the date on which or the period within which the payment response is required to be provided under section 11(1) (whether or not a payment response is provided).

(3)

Where a supply contract provides for the date on which a progress payment becomes due and payable, the progress payment becomes due and payable on the earlier of the following dates:

(a)

the date as specified in or determined in accordance with the terms of the contract;

(b)

the date immediately upon the expiry of 60 days after the relevant payment claim is served under section 10.

(4)

Where a supply contract does not provide for the date on which a progress payment becomes due and payable, the progress payment becomes due and payable immediately upon the expiry of 30 days after the relevant payment claim is served under section 10.

(5)

The interest payable on the unpaid amount of a progress payment that has become due and payable is at the higher of the following rates:

(a)

the rate specified in or determined in accordance with the terms of the contract;

(b)

the rate prescribed in respect of judgment debts under the Supreme Court of Judicature Act 1969.

(6)

For the purpose of subsections (1) and (2) and subject to the Goods and Services Tax Act 1993, the claimant may submit the tax invoice mentioned in subsection (1)(b)(i) or (2)(a) at any time after the payment response mentioned in subsection (1)(b)(ii) or (2)(b) (as the case may be) is provided, despite anything to the contrary in the contract.

Terms defined in this Act

claimant
Defined · s 2
“claimant” means a person who is or claims to be entitled to a progress payment under section 5;
Open s 2
construction contract
Defined · s 2
“construction contract” means an agreement under which —(a)one party undertakes to carry out construction work, whether including the supply of goods or services or otherwise, for one or more other parties; or(b)one party undertakes to supply services to one or more other parties;
Open s 2
contract
Defined · s 2
“contract” means a construction contract or a supply contract, and includes a construction contract or a supply contract that has been terminated;
Open s 2
goods
Defined · s 3
“goods” means —(a)materials or components to form part of any building, structure or works arising from construction work; or(b)plant or materials (whether supplied by sale, hire or otherwise) for use in connection with the carrying out of construction work;
Open s 3
payment claim
Defined · s 2
“payment claim” means a claim made by a claimant for a progress payment under section 10;
Open s 2
payment response
Defined · s 2
“payment response”, in relation to a construction contract, means a response to a payment claim made by a respondent under section 11(1) or 12(4);
Open s 2
progress payment
Defined · s 2
“progress payment” means a payment to which a person is entitled for the carrying out of construction work, or the supply of goods or services, under a contract, and includes —(a)a single or one-off payment (including a final payment); or(b)a payment that is based on an event or a date (including a final payment);
Open s 2
respondent
Defined · s 2
“respondent” means a person who is or may be liable to make a progress payment under a contract to a claimant;
Open s 2
services
Defined · s 3
“services” means —(a)the conduct of feasibility studies, planning services, the submission of applications or other documents to any relevant authority, site supervision services, professional engineering services, or architectural, design, surveying or quantity surveying services, in relation to construction work;(b)project management services in relation to construction work;(c)building, engineering, exterior or interior decoration or landscape advisory services in relation to construction work; or(d)the provision of labour to carry out construction work.
Open s 3
supply contract
Defined · s 2
“supply contract” means an agreement under which —(a)one party undertakes to supply goods to any other party who is engaged in the business of carrying out construction work or who causes to be carried out construction work;(b)the supply is for the purpose of construction work carried out or caused to be carried out by the second‑mentioned party; and(c)the firstmentioned party is not required to assemble, construct or install the goods at or on the construction site,but does not include any prescribed agreement.
Open s 2