When is the last date that a Payment Claim can be made?

Thursday, 5 November 2009

The BCIPA [s17(4) states,  A payment claim may be served only within the later of -

(a) the period worked out under the construction contract; or
(b) the period of 12 months after the construction work to which the claim relates was last carried out, or the related goods and services to which the claim relates were supplied.

(a) is clear.  If there is a period for payment claims under the contract, this sets the last date for a payment claim.  Applicants should be mindful of this date, if there is one.

The period of 12 months after related goods and services were supplied is also quite clear.  It is 12 months from the date that the last goods or services were actually provided or delivered,

The period of 12 months after construction work was last carried out is not so clear.  Construction work is carefully defined in section 10 of the Act.  Section 10.2 states, "To remove any doubt, it is declared that construction work includes building work within the meaning of the QBSA Act 1991".

Building work, as defined in the QBSA Act 1991, includes [section 67A] "provid(ing) advisory, administrative, management or supervisory services for carrying out building work".

The accepted wisdom (from the NSW legislation) has been that the last date for a payment claim is "12 months from the last nail"  that is, the last work on site.  

In my view, the Queensland legislation is different.  If a claimant continues to provide administrative or management services after the completion of construction, it is likely that the contract is kept alive for the purposes of the BCIPA.  management and administrative services could be no more than the regular rendering of invoices or the issue of correspondence attempting to resolve a disputed payment.  This means that, until clarified by the courts, a contract for the purposes of the BCIPA could be kept alive indefinitely.

Where the time for a payment claim is close to 12 months from the end of construction, claimants can attempt keep the contract alive by continuing with "administration and management" services under the contract.

Respondents should always seek to limit the time for payment claims under the contract to a reasonable time for settlement of accounts after the final certificate or the end of maintenance periods.