LEGAL
frame the dispute cannot be considered by the adjudicator. A process is introduced for review determinations by a second adjudicator. This process is far broader than the review provision under the Victorian Act, which is limited to a consideration of excluded amounts under that Act and, according to statistics released by the Victorian Building Authority, is rarely undertaken. The new WA Act provides that a party can submit a review application merely because the adjudicated amount differed from what was claimed/scheduled by more than a fixed amount (perhaps $200K), and the review adjudicator can quash the first determination and make a new determination. From what is likely to be a second implementation stage, a contractor will be required to keep a Retention Trust Account to hold all retention funds if the contract value is above a threshold that is subject to industry consultation, with a possible significant threshold reduction in a third stage of implementation. The new Act includes a unique provision that enables an adjudicator, arbitrator, expert, or court to declare a notice-based time bar unfair and ineffective in the case of the particular entitlement that is the subject of the proceedings. There is likely to be a significant transition period of existing contracts that will remain subject to the Construction Contracts Act 2004.
NORTHERN TERRITORY
to review an adjudicator’s determination, including the general power to refer the matter back to the adjudicator if the original determination is set aside. The timeframes were standardised to working days and adjusted accordingly.
TASMANIA, VICTORIA, SOUTH AUSTRALIA, AUSTRALIAN CAPITAL TERRITORY The Security of Payment legislation in the above jurisdictions had remained relatively unchanged over the past four years.
DIFFERENCES IN STATE LEGISLATION The above review documents significant recent changes. It does not document minor changes to timeframes or summarise the differences between the state/territory-based Acts that have been in place for some time. In all circumstances, reference to the relevant state/territory legislation that is current at a point in time is recommended. The success of claims and defences under the various Acts requires careful planning and administration of the relevant contracts and early intervention to present a case in the best light possible.
This article has been written by the team at Doyles Construction Lawyers. www.doylesconstructionlawyers.com
The Construction Contracts (Security of Payments) Act 2004 was amended in 2019, permitting parties to a high value contract (over $510M) to agree in the contract to opt out of the adjudication process and instead follow the contractual dispute resolution procedure. Power was granted to NTCAT
BUILT ENVIRONMENT ECONOMIST: SEPTEMBER - NOVEMBER 2021: 57