Building and Construction Industry (Security of Payment) Act 2021

The Act organises a few interlocking legal concepts that determine rights, timing and remedies.

• Progress payment: A statutory entitlement to receive payment for construction work or related goods and services in specified circumstances, covering final payments, single payments and milestones (s 17(1)-(2)). The amount is determined by contract where provided, otherwise by valuation rules (ss 18-19). Interest on late payment uses either the contract rate or the rate under the Civil Judgments Enforcement Act 2004 (s 21). The due date defaults are 20 business days for principal-to-head contractor payments and 25 business days for subcontractors (s 20(1)-(2)), with a special 10 business day rule for home building work where contract silent (s 20(3)).

• Payment claim and payment schedule: A claimant makes a payment claim in writing and (if an approved form exists) in that form, specifying the claimed amount and description of items (s 24). The respondent must give a payment schedule within the time prescribed by contract or within 15 business days after the claim (s 25(1)). Failure to provide a schedule turns the claimed amount into a debt payable on the due date (s 26).

• Adjudication and review adjudication: Where the claimed or scheduled amount is unpaid, or the schedule proposes a lesser amount, the claimant may apply for adjudication (s 28). Adjudicators are to decide within short statutory timeframes, generally 10 business days after the response or appointment, subject to limited extensions (ss 37-38). A single internal review is available to either party within strict grounds and times (ss 39-48). Adjudicators and review adjudicators are registered by the Building Commissioner and may be appointed by authorised nominating authorities (Part 5 Div 2, ss 99-106).

• Retention money trusts: Retention money retained as security under a construction contract is, by operation of law, held on trust from the retention money trust commencement date until the trust end date (s 71). Parties who retain retention money must pay it into a designated retention money trust account within statutory timeframes and follow strict withdrawal, recordkeeping and disclosure rules (ss 74-79). Trusts have statutory priorities under the Personal Property Securities Act (s 82) and prevail over inconsistent contractual terms (s 83).

• Performance security and substitution: The Act recognises retention money and performance bonds as performance security (s 56). It establishes a process for substitution of retention money with a compliant performance bond, with precise content and authentication requirements including irrevocability, currency match, naming of the retaining party as the beneficiary, jurisdictional specifications and credit rating requirements (ss 59-60). Adjudicators may order release or substitution where the conditions are met (ss 58-59).

• Additional rights: Claimants may suspend work or supply for non-payment after providing a 2 business day notice (ss 62-63), and have a lien over unfixed plant and materials for unpaid progress payments (s 64). The Act also prohibits threatening or intimidating claimants (s 65).

Key cross-cutting procedural features are short, mandatory timeframes for claims, responses, appointments and determinations; restricted evidence and argument scope in adjudications and reviews (ss 38(2)-(3), 46(1)-(2)); and limited judicial review avenues focused on jurisdictional error (s 66) and explicit prohibition of appeal except as provided in the Part (s 67).

The Act has a wide cast of affected participants and institutional actors, who will bear duties, costs and operational adjustments.

• Claimants: Any person who undertakes to carry out construction work or supply related goods and services under a construction contract can be a claimant (s 17). That includes head contractors, subcontractors, suppliers and professionals providing directly related services listed at s 7(1)(b)(ii). Claimants get statutory entitlements to progress payments (s 17), rights to suspend work (s 62), to seek adjudication (s 28), to receive retention money or substitute performance security (ss 58-59), and a lien over unfixed plant and materials (s 64). A claimant who is a corporation in liquidation is excluded from exercising Part 3 rights (s 68).

• Respondents: The person liable to pay a progress payment under the construction contract, including principals, head contractors and other parties, must respond with a payment schedule (s 25), pay adjudicated amounts (s 52), or fund trust accounts for retention money (Part 4). Respondents who do not provide a payment schedule become liable to pay the claimed amount (s 26) and cannot raise certain defences in debt recovery proceedings under s 27(3).

• Head contractors and principals: Special timing rules apply to payments from principals to head contractors (20 business days) and to subcontractors (25 business days) (s 20). Head contractor status and principal status are defined in s 4(2)-(3); when principals contract directly with subcontractors the due date defaults to the subcontractor rule (s 20 note).

• Parties holding retention money (party A) and parties entitled to release (party B): Parties who retain money must hold it on trust from the retention money trust commencement date and establish retention money trust accounts within prescribed timeframes (ss 71, 74). They must keep trust records and are constrained in withdrawal methods (ss 75-79). Party A bears the cost and administrative burden of trust accounts and related fees (s 78(4)).

• Adjudicators, review adjudicators and nominating authorities: Individuals must be registered to act as adjudicators or review adjudicators (ss 99-106). Authorised nominating authorities are authorised by the Building Commissioner and must meet eligibility and reporting requirements (ss 88-96). Adjudicators decide quickly, are entitled to fees and expenses subject to Building Commissioner-approved rates (s 50), and receive immunity from civil liability if acting in good faith (s 112).

• Building Commissioner: The Building Commissioner has significant administrative and regulatory powers including preparing model forms (s 12), approving forms (s 114), registering adjudicators (s 101), authorising nominating authorities (s 90), keeping public registers (ss 90(3), 107), collecting reports and data (s 96), and certifying adjudication determinations for enforcement (s 53).

• Recognised financial institutions: Banks and other prescribed bodies operate retention money trust accounts and are insulated from certain responsibilities under Part 4 (s 81). They receive fees for trust accounts paid by the party who establishes the account (s 78(4)).

• Insurers and bond issuers: Authorised issuing institutions must execute compliant performance bonds if substitution is sought, and their credit rating may be prescribed as a requirement (s 60(1)(i)).

• Regulators and courts: The Act binds the Crown (s 11) and preserves courts’ jurisdiction to supervise trusts (s 84). It also requires courts to allow for amounts paid under the Act in subsequent proceedings (s 55(3)) and restricts the admissibility of adjudication evidence in later litigation (s 55(4)).

Who pays: respondents for progress payments and adjudicated amounts, parties holding retention money for trust administration costs and the cost of drawing down debt facilities if necessary to fund trust accounts (s 73), and parties for adjudication fees and expenses jointly and severally subject to apportionment (s 50). Who decides: adjudicators, Building Commissioner, authorised nominating authorities and courts exercise decision-making functions under the Act.

The Act creates discrete statutory duties and corresponding rights. This section lists the principal ones with the operating provisions.

Claimant rights and duties

• Right to a progress payment whenever they undertake construction work or supply related goods and services (s 17). The amount is contractual where provided, otherwise valuer rules in s 19 apply (s 18).
• Duty to make payment claims in writing, in approved form where applicable, describing items and quantities, specifying the claimed amount, and stating the Act applies (s 24). Home building payment claims over threshold must include a homeowner’s notice (s 24(2)).
• Right to suspend work or supply for non-payment after serving a 2 business day notice and subject to conditions; suspension continues until 3 business days after payment (ss 62-63).
• Right to seek release or substitution of performance security, including substituting retention money with compliant performance bonds (ss 56-61).
• Duty to comply with Part 4 procedures if holding or seeking release of retention money; failure to pay into trust account or keep records attracts an offence and fine (s 87).

Respondent rights and duties

• Duty to give payment schedules within the time required by contract or 15 business days, identify the claim, indicate the scheduled amount and, where less than the claim or nil, state reasons including if withholding payment (s 25).
• Right, if a payment schedule is given, to make an adjudication response within 10 business days and to seek adjudication review if criteria met (ss 34, 39).
• Duty to pay adjudicated amounts within 5 business days after receiving the determination or on any later date determined (s 52). Respondents must pay any undisputed part of an adjudicated amount before applying for review and deposit disputed parts into a trust account (s 40).

Adjudicator and review adjudicator duties and limits

• Duty to determine applications fairly, quickly, informally and inexpensively (s 35(1)), subject to strict timeframes (ss 37, 47). Adjudicators must not consider late responses, nor reasons for withholding not included in the payment schedule (s 38(3)), and are not bound by rules of evidence (s 35(8)).
• Power to appoint experts, call conferences, arrange inspections, and engage nominating authorities for administrative assistance (s 35(3)). Must give written reasons in a determination and provide determinations to parties and the Building Commissioner (s 38(4)).
• Entitlement to fees and expenses agreed or published by the Building Commissioner, capped by regulations, not recoverable if they fail to determine within time or are late (s 50).

Trust and retention duties

• Retention money is held on trust by operation of law from the retention money trust commencement date to the trust end date (s 71(1)). Parties holding retention money must establish retention money trust accounts within 10 business days of contract or within 20 business days if the contract later becomes subject to the Part (s 74(1)-(2)).
• Strict rules on withdrawal (s 76), recordkeeping and disclosure to beneficiaries (s 79), and limitations on investment of trust money (s 78(3)).
• Duty to draw down debt facilities or otherwise set aside retention money if the retaining party lacks funds, including a court power to compel draw down (s 73).

Regulatory and administrative duties

• Building Commissioner must publish approved forms and may publish model contract forms (ss 12, 114). The Commissioner registers adjudicators and authorises nominating authorities (Part 5).
• Authorised nominating authorities must report particulars of appointments and fees to the Building Commissioner (s 96) and operate under any code of practice (s 97).

Prohibitions and offences

• Pay when paid provisions have no effect (s 14(2)). Regulations may prohibit other contract terms (s 15).
• Threatening or intimidating claimants is an offence with a fine of $50 000 (s 65).
• Failure to comply with trust account establishment or disclosure requirements is an offence with a fine of $50 000 (s 87).
• Misuse or unauthorised disclosure of confidential information by relevant officers is an offence attracting a fine of $10 000 (s 116(2)).

Contractual interaction

• No contracting out: the Act operates despite contract terms and makes inconsistent contractual terms void to the extent of inconsistency (s 111).

These duties and rights reallocate practical leverage in the payment chain, create timing certainty, and impose administrative burdens, notably trust account management and recordkeeping.

The Act combines criminal, civil and administrative enforcement mechanisms, and provides for expedited enforcement of adjudication determinations.

Criminal and regulatory penalties

• Threats or intimidation against claimants: fine of $50 000 (s 65). Section 118 applies Criminal Code liability for officers of bodies corporate to this offence. The offence can be prosecuted only by the Building Commissioner or an authorised person, and prosecutions are subject to time limits specified in s 117(4)-(6).
• Failure to comply with retention money trust duties: failure to comply without reasonable excuse with ss 74(1) or 79(3)(a) is an offence with a fine of $50 000 (s 87).
• Misuse of confidential information: a fine of $10 000 for relevant officers (s 116(2)).
• Other regulatory offences may be prescribed by regulations with fines up to $2 000 (s 119(2)).

Adjudication determinations enforceable as judgments

• If an adjudicator or review adjudicator awards an adjudicated amount that is not paid, the claimant may request the Building Commissioner to certify the determination as a true copy for enforcement as a monetary judgment of a court of competent jurisdiction (ss 52-54). A certified determination is taken to be a monetary judgment (s 54(2)). Enforcement under the Civil Judgments Enforcement Act 2004 Part 4 requires an affidavit stating the amount has not been paid (s 54(3)).
• A respondent seeking to set aside such a monetary judgment must pay the judgment amount into court as security and cannot raise cross-claims or challenge the underlying adjudicator determination in those proceedings (s 54(5)-(6)).

Civil recovery and remedies

• Where the respondent fails to pay the claimed or scheduled amount, the claimant may recover the unpaid portion as a debt in a court of competent jurisdiction (s 27(2)(a)). However, courts are instructed to give judgment only if certain conditions are satisfied (s 27(3)). In recovery proceedings, respondents are limited in defences and cross-claims under s 27(3)(b).
• The Act preserves other contract and contractual remedies (s 55(1)), but courts must account for amounts paid under the Act in any subsequent orders (s 55(3)).

Administrative enforcement and sanctions

• The Building Commissioner can refuse, suspend or cancel registrations and authorisations for nominating authorities and adjudicators, and may impose conditions (Part 5, ss 90-106). Decisions of the Building Commissioner are reviewable by the State Administrative Tribunal (ss 95, 108).
• Adjudicators may withhold determinations until adjudication fees and expenses are paid if they issued an invoice before the determination (s 51(1)). If fees are unpaid, the time for determination is extended accordingly (s 51(2)).
• The Act grants immunity from civil liability to protected persons for acts done in good faith (s 112), while leaving State liability intact.

Enforcement of trust obligations and court supervision

• Retention money trusts are subject to court supervision; the Supreme Court retains inherent jurisdiction to supervise administration and give directions (s 84). Trusts have statutory priority over other security interests and are declared to have priority under the Personal Property Securities Act (s 82).

Other enforcement mechanics

• The Act makes an adjudicator’s jurisdictional errors subject to Supreme Court review, allowing the Court to set aside parts of determinations affected by jurisdictional error (s 66). Otherwise determinations are final and not subject to appeal except under the Act (s 67).

The enforcement structure mixes swift administrative adjudication with the normal coercive powers of courts, supported by statutory certification and criminal penalties for specific conduct, and regulatory controls over key administrators and decision‑makers.

The Act explicitly intersects with several statutes and legal fields, and it preserves or modifies common law and statutory doctrines in designated ways.

Direct references and incorporations

• Personal Property Securities Act 2009 (Cth): The Act declares that Part 4 trust interests have priority over any other security interests and that PPSA s 73(2) applies to interests in money held on trust under this Part (s 82). Section 64(5) also declares PPSA s 73(2) applies to liens under s 64.
• Trustees Act 1962 (WA): Except where expressly altered, the Trustees Act and other trust law apply to the trusts created by Part 4 (s 85(1)). The Act expressly removes some Trustees Act duties for those trusts (s 85(2)), and excludes s 51 of the Trustees Act from applying (s 85(3)).
• Civil Judgments Enforcement Act 2004: Reference point for the interest rate to apply on late payments where contract silent (s 21), and certified adjudication determinations are treated as monetary judgments (s 54(2)).
• Building Services Acts and Construction Contracts former regime: The Act amends the Building Services (Complaint Resolution and Administration) Act 2011 and the Building Services (Registration) Act 2011 (Part 7 Divisions 1-2) and renames the Construction Contracts Act 2004 as Construction Contracts (Former Provisions) Act 2004 (s 135-139). It provides transitional provisions for former adjudicators (s 110).
• Corporations Act and Criminal Code references: Definitions of officers and certain Criminal Code liability provisions are applied (s 118), and the Corporations Act is used for matters such as officers in Part 5A insolvency provisions (s 63A).

Priority, contractual freedom and statutory override

• No contracting out: The Act takes precedence over inconsistent contractual terms, voiding provisions that are inconsistent or that seek to deter or reimburse actions under the Act (s 111). This reorders contractual freedom where the Act applies.
• Pay when paid provisions: These are rendered ineffective for payments for construction work and related goods and services (s 14), altering risk allocation that parties previously negotiated.

Procedure, evidence and collateral estoppel

• Evidence of anything said or done in adjudication reviews is inadmissible in later proceedings unless parties consent (s 55(4)). This limits the use of adjudication materials in subsequent litigation, affecting strategies around evidence gathering.

Interaction with insolvency and registration regimes

• Corporations in liquidation cannot use Part 3 rights; adjudication applications made before liquidation are taken to be withdrawn (s 68). Part 7 amends building services registration to treat adjudicated amounts and certain judgment debts as building service debts for disciplinary purposes (s 129), connecting adjudication outcomes to registration and disciplinary measures.

Administrative and supervisory overlap

• The Building Commissioner’s functions overlap with existing administrative structures under the Building Services Acts and procurement functions identified in the Procurement Act 2020 (Part 7 Div 4, s 141).

Transitional and staged commencement

• The Act stages commencement for different Parts and provisions; for example, retention money trust obligations commence later and different sections have separate commencement dates (compilation table). The Construction Contracts (Former Provisions) Act 2004 continues to apply to contracts entered before the commencement of section 22 (s 9(1) note).

Judicial review and finality

• The Act limits appeals of adjudication determinations except for jurisdictional error review in the Supreme Court (s 66) and the internal adjudication review process provided (Part 3 Div 3). This narrows ordinary appeals and preserves limited judicial oversight.

Taken together, the Act creates a specialised statutory payment ecosystem that interlocks with trust, insolvency, registration, and enforcement law, while expressly constraining contractual autonomy and some evidentiary routes in later proceedings.

The statute compilation included at the end of the text records commencement and amendment steps up to the compilation date.

Commencement and staged rollout

• Short title assented 25 June 2021 (compilation table). Part 1 Division 1 commenced on assent day (25 June 2021), Part 5 Division 1 (s 98 only) on 26 June 2021, and large swathes of the Act commenced on 1 August 2022 as set out (s 2(c) and SL 2022/78 cl. 2(2)(a)). Certain provisions commenced later: s 57 and s 65, Part 4 (other than s 87), s 118, ss 123 and 124 and Part 7 Division 2 commenced 1 February 2023 (s 2(c) and SL 2022/78 cl. 2(2)(b)); ss 59-61 and s 87 commenced 1 February 2024 (s 2(c) and SL 2022/78 cl. 2(2)(c)). The staggered commencement demonstrates phasing for trust-related obligations and insolvency-related measures.

Subsequent amendments and related Acts

• The compilation table records the Directorial Liability Reform Act 2023 Part 3 Division 11 (No. 9 of 2023) from 5 April 2023 as affecting the Act (compilation table). The text itself records many consequential amendments to other Acts (Part 7), including renaming the Construction Contracts Act 2004 and inserting Part 5A into the Building Services (Registration) Act 2011 for insolvency of building service contractors (ss 125-133).

Textual changes within the Act

• Section insertions and schedule-like amendments are embedded in the Part 7 amendments. Notable internal additions include the insolvency-focused Part 5A inserted into the Building Services (Registration) Act 2011 (s 133) that authorises declarations of excluded contractors and links registrations to insolvency events. Section 118 was inserted by No. 9 of 2023 s 34 as noted in the text.

Regulatory scope left to be prescribed

• The Act frequently leaves detail to regulations, enabling future adjustment by the Governor: thresholds for home building exclusions (s 10(1)(c)), the prescribed retention money threshold for Part 4 application (s 70(1)(b)), maximum adjudication fees and fee scales (s 50(2)-(3)), the code of practice content (ss 97, 109), and other matters (s 119). Those regulatory powers mean that significant operational detail can be amended without parliamentary amendment.

Transitional provisions

• The Act preserves legacy adjudicator registrations and includes transitional registration and cancellation rules (s 110 and amending provisions in Part 7 Div 3, s 138), facilitating a regulated handover from former regimes to the new registration system.

The amendment history shows a staged implementation, with retention-trust and substitution-of-security provisions introduced later, and consequential amendments to building registration laws that align registration and disciplinary consequences with adjudication outcomes.

The source material is the text of the Act and its compilation and does not contain case law or judicial decisions. It records only procedural avenues for review and judicial oversight available under the Act.

Procedural litigation channels created or preserved by the Act

• Internal administrative review: the Act provides an internal adjudication review process for parties dissatisfied with adjudicator determinations (Part 3 Division 3, ss 39-48). The Act sets strict eligibility, time limits and procedural constraints for review applications (s 39).
• Judicial review for jurisdictional error: the Supreme Court may set aside whole or part of determinations where jurisdictional error is found (s 66). The Court retains its supervisory jurisdiction, including on trust administration (s 84).
• Limited challenge to monetary judgments: certified adjudication determinations are enforceable as monetary judgments under s 54. A person seeking to set aside such a judgment must pay the judgment amount into court as security and is restricted from bringing cross-claims or raising contract defences in those proceedings (s 54(5)-(6)).
• Administrative review of Building Commissioner decisions: decisions relating to authorisation of nominating authorities and registration, renewal, suspension or cancellation of adjudicators are reviewable by the State Administrative Tribunal (ss 95, 108).

Absence of named cases

• The text does not name any judicial decisions, reported cases or precedent. It sets statutory mechanisms and review routes but contains no litigation history itself.

Practical implication for litigators and claimants

• Because adjudication determinations can be certified and enforced as monetary judgments, a common litigation dynamic will be fast adjudication plus enforcement, with limited judicial intervention post-adjudication except for jurisdictional error or properly instituted reviews. Courts and tribunals will likely see applications to set aside certified determinations and applications for supervision of retention money trusts. The Act restricts use of adjudication evidence in later proceedings unless parties consent (s 55(4)), which affects evidentiary strategies in subsequent litigation.

For up-to-date litigation outcomes, practitioners must consult case law databases after the date of this compilation. The Act itself outlines the available review and enforcement paths but contains no historical litigation record.

Practical traps, operational frictions and points that commonly catch participants unaware are concentrated around timing, formality, trust obligations and limitations on remedies.

• Time limits are short and strict. Payment schedules must be given before the earlier of the contract time or 15 business days after the claim (s 25(1)). If a respondent fails to provide a schedule in time the claimed amount becomes payable on the due date (s 26). Adjudication applications must be made within 20 business days after entitlement to apply arises (s 28(4)), adjudication responses within 10 business days (s 34(1)), and adjudicators must determine applications within 10 business days after the response or appointment with limited agreed extensions (s 37). These compressed windows leave little room for negotiation or late evidence.

• Pay‑when‑paid clauses have no effect. Any contract clause that makes payment contingent on payment by another party is void in respect of payments under the Act (s 14(2)). Parties relying on upstream payment flows for cash management must re-evaluate liquidity if such clauses had been used to allocate risk.

• Notice-based time bars can be declared unfair in particular cases. A contractual notice requirement that conditions payment or an extension of time may be declared unfair in that case (s 16). Adjudicators and courts must consider factors such as when a party would reasonably have become aware and relative bargaining power (s 16(6)). Rigid reliance on procedural notice requirements may be struck down in specific disputes.

• Retention money is trust property from the commencement date even before it is paid into a trust account. Parties who retain money but do not set aside funds still hold a property interest that is trust-protected (s 71(2)-(3) and s 69(3)). However, practical protection requires a trust account with records, and failure to establish the account within statutory timeframes is an offence (ss 74-75, 87). That creates a tension when party A has retained money but not segregated it; legal protection exists but practical recovery may still face contingent enforcement steps.

• Obligations to fund trust accounts can force draw down on debt facilities. If a retainer lacks sufficient cash, party A must draw down available debt facilities or otherwise set aside money (s 73(2)). Courts can order draw down where the party fails to act (s 73(3)). This shifts liquidity demand upstream to parties who retain money.

• Substitution of retention money with performance bonds requires precise drafting and authentication. A compliant performance bond must be unconditional, irrevocable, in the same currency and identify the retainer as sole beneficiary, and may be required to meet minimum credit rating requirements and local law and jurisdictional specifications (s 60). The respondent may dispute authenticity or compliance (s 59(7)). An executed bond must be provided with adjudication review applications seeking substitution (s 59(6)). Drafting errors, issuer identity omissions or jurisdictional mismatches can defeat substitution.

• Corporations in liquidation cannot use Part 3. A corporation in liquidation cannot make payment claims, adjudication applications or enforce determinations under Part 3 (s 68(1)). Adjudication applications pending at liquidation are taken to be withdrawn (s 68(2)). Parties should check solvency status before relying on adjudication for recovery.

• Adjudication evidence is limited in subsequent litigation. Evidence of anything lawfully said or done in an adjudication is inadmissible in later court or arbitral proceedings unless parties consent, which may constrain multi-stage dispute strategies (s 55(4)).

• Adjudication fee mechanics can delay determinations. Adjudicators may withhold determinations until fees are paid if they invoiced before making the determination (s 51(1)), and time for determination is extended until fees are paid (s 51(2)). Fees are jointly and severally liable and can be apportioned according to conduct (s 50). Failure to budget for fees or meet deposit requirements set by nominating authorities may delay or increase the cost of adjudication.

• Limits on challenges to jurisdiction: Respondents cannot challenge the adjudicator’s jurisdiction in an adjudication review application (s 39(4)), although jurisdictional error can be subject to Supreme Court review (s 66). Parties may face constrained grounds for review and must carefully follow procedural eligibility conditions for review applications (s 39).

• Practical complexity around home building exemptions: The Act excludes certain home building contracts from its operation (s 10(1)). Practitioners must check applicable thresholds and exceptions, and include homeowner’s notices in payment claims for applicable contracts (s 24(2)).

• Confidentiality constraints: Relevant officers face criminal penalties for unauthorised disclosure of confidential information, but the Building Commissioner may authorise disclosure to specific bodies (s 116). Parties should plan data handling accordingly.

These gotchas translate into operational rules: calendar management, strict form compliance, trust account policies, lender coordination and careful bond drafting and authentication.

Compliance requires operational and contractual adjustments, administrative systems and evidentiary discipline. The checklist below aligns with key statutory obligations and practical implementation steps.

1. Contract drafting and review

   • Remove or revise pay‑when‑paid provisions and any contractual concealment that would be inconsistent with s 14 and s 111. Ensure contract payment terms align with the Act’s timeframes where parties intend earlier payment (s 20(2)).
   • If you are a building service contractor, ensure contracts are in writing and contain mandatory contract information where the contract triggers s 13, including contractor registration number and general description of work (s 13(3)-(6)).
   • If planning to accept substitution of retention money with performance bonds, embed requirements for compliant performance bonds consistent with s 60, including issuer identification and agreed jurisdiction and governing law where appropriate.

2. Payment claim and schedule processes

   • Implement standardised payment claim forms or adopt the Building Commissioner’s approved forms when published, ensuring each payment claim states it is made under the Act, specifies the claimed amount and describes items and quantities (s 24).
   • For payments to principals in home building work above the threshold, include the homeowner’s notice in the prescribed form when required (s 24(2)).
   • Set internal triggers to require payment schedules to be issued within the contractual time or within 15 business days of receiving a claim to avoid the automatic liability in s 26. Payment schedules must identify the claim, indicate the scheduled amount and give reasons when withholding payment (s 25).

3. Adjudication readiness

   • Maintain a file system to collate the construction contract, the payment claim, any payment schedule, and contemporaneous supporting evidence so an adjudication application can be made or defended promptly (ss 30(1)(c), 42(1)(b)(i)-(vii)).
   • Budget for adjudication fees and ensure readiness to provide deposits or security if required by an authorised nominating authority (ss 30(1)(d), 51(3)-(5)). Recognise that fees are jointly and severally liable and may be apportioned based on conduct (s 50(4)-(5)).
   • If acting as respondent, include in payment schedules all reasons for withholding payment because reasons not in the schedule cannot later be introduced in adjudication response (s 34(3)).

4. Retention money trust compliance

   • If your organisation retains money, establish retention money trust accounts with a recognised financial institution within 10 business days of contract commencement or within 20 business days if the contract later becomes subject to Part 4 (s 74(1)-(2)). Ensure account names include the words “trust account” and notify the other party with BSB and account numbers as required (s 75(1)-(3)).
   • Keep proper accounting records, auditable and in English, and provide access to other beneficiaries on reasonable notice (s 79). Retain records for at least 3 years after the account closes (s 79(5)).
   • Understand withdrawal constraints: withdrawals only for specified purposes including release, recourse, as agreed, or by adjudicator/court/arbitrator determination (s 76). Do not invest the trust monies except as permitted and do not charge trust funds for operating costs other than interest (s 78(3)-(4)).
   • If lacking cash to fund the trust, document available debt facilities and be prepared to draw them down, because courts have power to compel draw down where party A fails to fund the trust (s 73).

5. Performance bond substitution

   • Where seeking substitution, provide a draft compliant performance bond with the payment claim and an executed compliant bond with any adjudication review application seeking substitution (ss 59(4), 59(6)). Ensure the bond is unconditional, irrevocable, in the same currency, identifies the retaining party as beneficiary, names the authorised issuing institution with ABN/ACN/ARBN, and meets any credit rating requirements (s 60).

6. Suspension and lien procedures

   • If suspending work under s 62, give the required written notice and allow 2 business days after notice before suspension; record the notice and receipt. Suspension may continue until 3 business days after payment (s 62(3)-(6)). Keep records of any removal of work by respondent and be prepared to claim losses under s 63.

7. Registration and personnel matters

   • Adjudicators and review adjudicators must be registered (Part 5 Div 2). If your business appoints adjudicators or seeks to be a nominating authority, meet Building Commissioner application requirements, reporting duties and codes of practice (ss 88-97, 101-109).
   • For building service contractors, notify the Board of new director appointments within 7 days as required under s 32A inserted into the Building Services (Registration) Act 2011 (s 128).

8. Confidentiality and information handling

   • Treat adjudication and related materials as confidential. Ensure relevant officers understand the offence for unauthorised disclosure under s 116 and obtain Building Commissioner authorisations if disclosure to third bodies is necessary (s 116(5)).

9. Corporate insolvency caution

   • Monitor solvency and status of corporate entities. Corporations in liquidation cannot use Part 3 rights (s 68). Building services registration may be affected by adjudicated debts or judgment debts under amended registration provisions (s 129).

10. Dispute resolution strategy

• Use the Act’s fast adjudication pathway for cash-flow recovery where appropriate. Plan for potential certified determination enforcement under ss 53-54. Be aware that evidence used in adjudication may be excluded from subsequent litigation unless the parties consent (s 55(4)).

Operationalising compliance requires integrating contract templates, standardised notice templates, trust-account procedures with the bank, and an internal diary for statutory windows. Regular engagement with the Building Commissioner’s approved forms and nominating authority guidance, once published, will reduce procedural risk (ss 114, 96).