Construction Contracts (Former Provisions) Act 2004 (Western Australia)

Mechanically, the Construction Contracts (Former Provisions) Act 2004 (the Act) does three things.

It prohibits, modifies or renders ineffective specified contractual payment terms in construction contracts (Part 2 Division 1). Notably, clauses that make payment contingent on the payer receiving payment from a third party (so‑called "pay if paid" or "pay when paid" clauses) have no effect (s 9). Any contract clause that attempts to require payment later than 42 days after a payment is claimed is read down so the payment must be made within 42 days (s 10). The regulations can add other prohibited provisions (s 11). The Act also provides that these invalidations or modifications do not destroy other parts of the contract (s 12).
It implies, into construction contracts that do not contain written provisions on particular topics, a package of mandatory default terms about variations, entitlement to payment, progress claims, making and responding to claims, time for payment, interest on overdue payments, ownership of goods, duties in insolvency and retention monies (Part 2 Division 2 and Schedule 1). Those implied clauses set minimum content for payment claims (Sch 1 cl 5), dispute notifications and timelines (Sch 1 cl 7), interest calculations (Sch 1 cl 8) and the treatment of retention monies as trust funds (Sch 1 cl 11), among other things. Section 23 makes clear that the Interpretation Act 1984 and ss 3-6 of this Act apply to the interpretation of implied provisions even if they contradict a contract.
It establishes a statutory, time‑limited adjudication process for payment disputes, separate from arbitration or litigation (Part 3). Any party to a construction contract may apply for adjudication when a payment dispute arises, subject to the Act’s timing rules (ss 25-26). The procedural rules include short filing and response windows (apply within 90 business days of dispute, s 26(1); respond within 10 business days, s 27(1)); a fast decision window for the adjudicator (generally 10 business days, s 31); cost and security mechanisms to fund adjudications (s 44); and enforcement machinery , including that a certified adjudication determination, once filed in court, becomes an order enforceable as a debt (s 43). Determinations are binding on the parties and take effect notwithstanding concurrent court, arbitration or tribunal proceedings (s 38); they are final except for limited correction and a narrow right of review against dismissals under s 31(2)(a) (s 46).

CrestWestern Australia

Construction Contracts (Former Provisions) Act 2004

Western Australia

Construction Contracts (Former Provisions) Act 2004

Contents

Part 1 — Preliminary

Short title 2
Commencement 2
Terms used 2
Construction work 4
Goods and services related to construction work 7
Payment dispute 8
Construction contracts to which this Act applies 9
Application to Crown 10

Part 2 — Content of construction contracts

Division 1 — Prohibited provisions

Prohibited: pay if paid/when paid provisions 11
Prohibited: provisions requiring payment to be made after 42 days 11
Prohibited: prescribed provisions 11
Other provisions of contract not affected 11

Division 2 — Implied provisions

Variations of contractual obligations 12
Contractor’s entitlement to be paid 12
Contractor’s entitlement to claim progress payments 12
Making claims for payment 12
Responding to claims for payment 12
Time for payment 13
Interest on overdue payments 13
Ownership of goods 13
Duties as to unfixed goods on insolvency 13
Retention money 14
Implied provisions: interpretation etc. 14

Part 3 — Adjudication of disputes

Division 1 — Preliminary

Interpretation of construction contract 15

Division 2 — Commencing adjudication

Who can apply for adjudication 15
Applying for adjudication 15
Responding to application for adjudication 17
Appointment of adjudicator in absence of agreed appointment 17
Adjudicators: conflicts of interest 18

Division 3 — The adjudication process

Object of adjudication process 19
Adjudicator’s functions 19
Adjudication procedure 21
Interest up to determination 23
Costs of parties to payment disputes 23
Certificates of completion etc., effect of 24
Determination, content of 24
Dismissed applications 25

Division 4 — Effect of determinations

Determinations have effect despite other proceedings 26
Payment of amount determined and interest 26
Progress payments under determinations to be on account 26
Determinations are final 27

Division 5 — Enforcing determinations

Non‑compliance by principal, contractor may suspend its obligations 27
Determinations may be enforced as orders of court 28

Division 6 — General

Costs of adjudications 29
Effect of this Part on civil proceedings 31
Review, limited right of 32

Part 4 — Administration

Registering adjudicators 33
Review of registration decisions 34
Publication of adjudicators’ decisions 34
Appointors’ and adjudicators’ rates to be published 35

Part 5 — Miscellaneous

No contracting out 36
Immunity from tortious liability 36
Regulations 37
Review of Act 37

Part 6 — Transitional provisions

Division 1 — Provisions relating to the Construction Contracts Amendment Act 2016

Resubmitted claims: previous adjudications 38
Extension of periods of time 38
Effect of notices under s. 42(1) after commencement and before 1 January 2017 38
Payment periods: contracts entered into before 3 April 2017 39

Schedule 1 — Implied provisions

Division 1 — Variations

Variations must be agreed 40

Division 2 — Contractor’s entitlement to be paid

Contractor entitled to be paid 40

Division 3 — Claims for progress payments

Entitlement to claim progress payments 40
When claims for progress payments can be made 40

Division 4 — Making claims for payment

Claim for payment, content 41

Division 5 — Responding to claims for payment

Term used: payment claim 42
Responding to payment claim 42

Division 6 — Interest on overdue payments

Interest payable on overdue payments 43

Division 7 — Ownership of goods

When ownership of goods supplied by contractor passes 44

Division 8 — Duties as to unfixed goods on insolvency

Duties of principal or landowner etc. as to unfixed goods on insolvency 44

Division 9 — Retention money

Retention money to be held on trust 45

Notes

Compilation table 47

Other notes 47

Defined terms

Western Australia

Construction Contracts (Former Provisions) Act 2004

An Act —

• to prohibit or modify certain provisions in construction contracts;

• to imply provisions in construction contracts about certain matters if there are no written provisions about the matters in the contracts;

• to provide a means for adjudicating payment disputes arising under construction contracts,

and for related purposes.

Part 1 — Preliminary

1. Short title

This Act is the Construction Contracts (Former Provisions) Act 2004.

[Section 1 amended: No. 4 of 2021 s. 136.]

2. Commencement

(1) This Act comes into operation on a day fixed by proclamation.

(2) Different days may be fixed under subsection (1) for different provisions.

3. Terms used

In this Act, unless the contrary intention appears —

adjudication means the adjudication of a payment dispute in accordance with Part 3;

applicant, in relation to an adjudication, means the person who, under section 26, makes the application for the adjudication;

appointed adjudicator, in relation to a payment dispute, means the registered adjudicator who, having been appointed under Part 3 to adjudicate the dispute, has been served with the application for adjudication;

Building Commissioner means the officer referred to in the Building Services (Complaint Resolution and Administration) Act 2011 section 85;

business day means a day other than —

(a) a Saturday, Sunday or public holiday; or

(b) a day in the period beginning on 25 December in a year and ending on 7 January in the following year;

construction contract means a contract or other agreement, whether in writing or not, under which a person (the contractor) has one or more of these obligations —

(a) to carry out construction work;

(b) to supply to the site where construction work is being carried out any goods that are related to construction work by virtue of section 5(1);

(c) to provide, on or off the site where construction work is being carried out, professional services that are related to the construction work by virtue of section 5(2);

(d) to provide, on the site where construction work is being carried out, on‑site services that are related to the construction work by virtue of section 5(3)(b);

construction work has the meaning given to that term in section 4;

contractor has the meaning given by the definition of construction contract;

costs of an adjudication has the meaning given to that term in section 44;

determination means a determination, made on an adjudication under Part 3, of the merits of a payment dispute;

obligations, in relation to a contractor, means those of the obligations described in the definition of construction contract that the contractor has under the construction contract;

party, in relation to an adjudication, means the applicant and any person on whom an application for the adjudication is served;

party, in relation to a construction contract, means a party to the contract;

payment claim —

(a) means a claim made under a construction contract —

(i) by the contractor to the principal for payment of an amount in relation to the performance by the contractor of its obligations under the contract; or

(ii) by the principal to the contractor for payment of an amount in relation to the performance or non‑performance by the contractor of its obligations under the contract;

and

(b) includes a payment claim that includes matters covered by a previous payment claim;

payment dispute has the meaning given to that term in section 6;

prescribed appointor means a person prescribed as such by the regulations;

principal, in relation to a construction contract, means the party to whom the contractor is bound under the contract;

registered adjudicator means an individual registered as such under section 48.

[Section 3 amended: No. 16 of 2011 s. 128(2)‑(4); No. 55 of 2016 s. 4.]

4. Construction work

(1) In this section —

civil works includes —

(a) a road, railway, tramway, aircraft runway, canal, waterway, harbour, port or marina; and

(b) a line or cable for electricity or telecommunications; and

(d) a path, pavement, ramp, tunnel, slipway, dam, well, aqueduct, drain, levee, seawall or retaining wall; and

(e) any works, apparatus, fittings, machinery or plant associated with any works referred to in paragraph (a), (b), (c) or (d);

site in WA means a site in Western Australia, whether on land or off‑shore.

(2) In this Act —

construction work means any of the following work on a site in WA —

(a) reclaiming, draining, or preventing the subsidence, movement or erosion of, land;

(b) installing, altering, repairing, restoring, maintaining, extending, dismantling, demolishing, or removing, any works, apparatus, fittings, machinery, or plant, associated with any work referred to in paragraph (a);

(c) constructing the whole or a part of any civil works, or a building or structure, that forms or will form, whether permanently or not and whether in WA or not, part of land or the sea bed whether above or below it;

(d) fixing or installing on or in any thing referred to in paragraph (c) any fittings forming, or to form, whether permanently or not, part of the thing, including —

(i) fittings for electricity, gas, water, fuel oil, air, sanitation, irrigation, telecommunications, air‑conditioning, heating, ventilation, fire protection, cleaning, the security of the thing, and the safety of people; and

(ii) lifts, escalators, insulation, furniture and furnishings;

(e) altering, repairing, restoring, maintaining, extending, dismantling, demolishing or removing any thing referred to in paragraph (c) or any fittings described in paragraph (d) that form part of that thing;

(f) any work that is preparatory to, necessary for, an integral part of, or for the completion of, any work referred to in paragraph (a), (b), (c), (d) or (e), including —

(i) site or earth works, excavating, earthmoving, tunnelling or boring; and

(ii) laying foundations; and

(iii) erecting, maintaining or dismantling temporary works, a temporary building, or a temporary structure including a crane or other lifting equipment, and scaffolding; and

(iv) cleaning, painting, decorating or treating any surface; and

(v) site restoration and landscaping;

(g) any work that is prescribed by regulations to be construction work for the purposes of this Act.

(3) Despite subsection (2) construction work does not include any of the following work on a site in WA —

(a) drilling for the purposes of discovering or extracting oil or natural gas, whether on land or not;

(b) constructing a shaft, pit or quarry, or drilling, for the purposes of discovering or extracting any mineral bearing or other substance;

(c) fabricating or assembling items of plant used for extracting or processing oil, natural gas or any derivative of natural gas, or any mineral bearing or other substance;

[(d) deleted]

(e) work prescribed by the regulations not to be construction work for the purposes of this Act.

(4) In this Act —

construction work does not include constructing the whole or part of any watercraft.

[Section 4 amended: No. 55 of 2016 s. 5.]

5. Goods and services related to construction work

(1) For the purposes of this Act, goods are related to construction work if they are —

(a) materials or components (whether pre‑fabricated or not) that will form part of any thing referred to in section 4(2)(b) or 4(2)(c) or of any fittings referred to in section 4(2)(d); or

(b) any fittings referred to in section 4(2)(d) (whether pre‑fabricated or not); or

(c) plant or materials (whether supplied by sale, hire or otherwise) for use in connection with the carrying out of the construction work at the site of the construction work; or

(d) goods prescribed by the regulations to be related to construction work for the purposes of this Act.

(2) For the purposes of this Act, professional services are related to construction work if they are —

(a) services that are provided by a profession and that relate directly to construction work or to assessing its feasibility (whether or not it proceeds) —

(i) including surveying, planning, costing, testing, architectural, design, plan drafting, engineering, quantity surveying, and project management, services; but

(ii) not including accounting, financial, or legal, services;

(b) services that are provided by a profession that are prescribed by the regulations to be professional services related to construction work for the purposes of this Act.

(3) For the purposes of this Act, on‑site services —

(a) are services other than professional services referred to in subsection (2); and

(b) are related to construction work if they are —

(i) services that relate directly to construction work, including the provision of labour to carry out construction work; or

(ii) services prescribed by the regulations to be on‑site services related to construction work for the purposes of this Act.

(4) The regulations may prescribe goods, professional services or on‑site services that are not related to construction work for the purposes of this Act.

6. Payment dispute

(1) For the purposes of this Act, a payment dispute arises if —

(aa) a payment claim is rejected or wholly or partly disputed; or

(a) by the time when the amount claimed in a payment claim is due to be paid under the contract, the amount has not been paid in full; or

(b) by the time when any money retained by a party under the contract is due to be paid under the contract, the money has not been paid; or

(c) by the time when any security held by a party under the contract is due to be returned under the contract, the security has not been returned.

(2) Despite subsection (1), a payment dispute does not arise under subsection (1)(aa) or (a) to the extent to which the payment claim includes matters that were the subject of an application for adjudication that has been dismissed or determined under section 31(2).

(3) If a payment dispute arises under both subsection (1)(aa) and (a) in relation to a payment claim then, for the purposes of this Act, the dispute arises on the earlier of the 2 occurrences.

[Section 6 amended: No. 55 of 2016 s. 6.]

7. Construction contracts to which this Act applies

(1) This Act applies to a construction contract entered into after this Act comes into operation and before the Building and Construction Industry (Security of Payment) Act 2021 section 22 comes into operation.

(2) This Act applies to a construction contract —

(a) irrespective of whether it is written or oral or partly written and partly oral; and

(b) irrespective of where it is entered into; and

(3) This Act does not apply to a construction contract to the extent to which it contains provisions under which a party is bound to carry out construction work, or to supply goods or services that are related to construction work, as an employee (as defined in the Industrial Relations Act 1979 section 7) of the party for whom the work is to be carried out or to whom the goods or services are to be supplied.

(4) This Act, or a provision of this Act, does not apply to a construction contract, or a class of construction contracts, prescribed by the regulations as a contract or class of contracts to which this Act, or that provision, does not apply.

[Section 7 amended: No. 4 of 2021 s. 137.]

8. Application to Crown

This Act binds the Crown.

Part 2 — Content of construction contracts

Division 1 — Prohibited provisions

9. Prohibited: pay if paid/when paid provisions

A provision in a construction contract has no effect if it purports to make the liability of a party (A) to pay money under the contract to another party contingent, whether directly or indirectly, on A being paid money by another person (whether or not a party).

10. Prohibited: provisions requiring payment to be made after 42 days

A provision in a construction contract that purports to require a payment to be made more than 42 days after the payment is claimed is to be read as being amended to require the payment to be made within 42 days after it is claimed.

[Section 10 amended: No. 55 of 2016 s. 7.]

11. Prohibited: prescribed provisions

A provision in a construction contract has no effect if it is a provision that is prescribed by the regulations to be a prohibited provision.

12. Other provisions of contract not affected

A provision in a construction contract that has no effect because of section 9 or 11 or that is modified under section 10 does not prejudice or affect the operation of other provisions of the contract.

Division 2 — Implied provisions

13. Variations of contractual obligations

The provisions in Schedule 1 Division 1 are implied in a construction contract that does not have a written provision about variations of the contractor’s obligations under the contract.

14. Contractor’s entitlement to be paid

The provisions in Schedule 1 Division 2 are implied in a construction contract that does not have a written provision about the amount, or a means of determining the amount, that the contractor is entitled to be paid for the obligations the contractor performs.

15. Contractor’s entitlement to claim progress payments

The provisions in Schedule 1 Division 3 are implied in a construction contract that does not have a written provision about whether or not the contractor is able to make a claim to the principal for a progress payment for the obligations the contractor has performed.

16. Making claims for payment

The provisions in Schedule 1 Division 4 are implied in a construction contract that does not have a written provision about how a party is to make a claim to another party for payment.

17. Responding to claims for payment

The provisions in Schedule 1 Division 5 about when and how a party is to respond to a claim for payment made by another party are implied in a construction contract that does not have a written provision about that matter.

18. Time for payment

The provisions in Schedule 1 Division 5 about the time by when a payment must be made are implied in a construction contract that does not have a written provision about that matter.

19. Interest on overdue payments

The provisions in Schedule 1 Division 6 are implied in a construction contract that does not have a written provision about interest to be paid on any payment that is not made at the time required by the contract.

20. Ownership of goods

The provisions in Schedule 1 Division 7 are implied in a construction contract that does not have a written provision about when the ownership of goods that are —

(a) related to construction work; and

(b) supplied to the site of the construction work by the contractor under its obligations,

passes from the contractor.

21. Duties as to unfixed goods on insolvency

The provisions in Schedule 1 Division 8 are implied in a construction contract that does not have a written provision about what is to happen to unfixed goods of a kind referred to in section 20 if either of the following persons becomes insolvent —

(a) the principal; or

(b) a person for whom, directly or indirectly, the principal is performing construction work or to whom, directly or indirectly, the principal is supplying goods and services that are related to construction work.

22. Retention money

The provisions in Schedule 1 Division 9 are implied in a construction contract that does not have a written provision about the status of money retained by the principal for the performance by the contractor of its obligations.

23. Implied provisions: interpretation etc.

The Interpretation Act 1984 and sections 3 to 6 of this Act apply to the interpretation and construction of a provision that is implied in a construction contract under this Part despite any provision in a construction contract to the contrary.

Part 3 — Adjudication of disputes

Division 1 — Preliminary

24. Interpretation of construction contract

Without affecting the operation of section 9, 11 or 53, a reference in this Part to a construction contract is a reference to the contract including any provision that is modified under section 10 or implied in the contract under Part 2 Division 2.

Division 2 — Commencing adjudication

25. Who can apply for adjudication

If a payment dispute arises under a construction contract, any party to the contract may apply to have the dispute adjudicated under this Part unless —

(a) an application for adjudication has already been made by a party, whether or not a determination has been made, but subject to section 37(2); or

(b) the dispute is the subject of an order, judgment or other finding by an arbitrator or other person or a court or other body dealing with a matter arising under a construction contract.

26. Applying for adjudication

(1) To apply to have a payment dispute adjudicated, a party to the contract, within 90 business days after the dispute arises or, if applicable, within the period provided for by section 37(2)(b), must —

(a) prepare a written application for adjudication; and

(b) serve it on each other party to the contract; and

(i) if the parties to the contract have appointed a registered adjudicator and that adjudicator consents, on the adjudicator;

(ii) if the parties to the contract have appointed a prescribed appointor, on that appointor;

(iii) otherwise, on a prescribed appointor chosen by the party;

and

(d) provide any deposit or security for the costs of the adjudication that the adjudicator or the prescribed appointor requires under section 44(8) or (9).

(2) The application —

(a) must be prepared in accordance with, and contain the information prescribed by, the regulations; and

(b) must set out the details of, or have attached to it —

(i) the construction contract involved or relevant extracts of it; and

(ii) any payment claim that has given rise to the payment dispute;

and

(c) must set out or have attached to it all the information, documentation and submissions on which the party making it relies in the adjudication.

(3) A prescribed appointor that is served with an application for adjudication made under subsection (1) must comply with section 28.

[Section 26 amended: No. 55 of 2016 s. 8.]

27. Responding to application for adjudication

(1) Within 10 business days after the date on which a party to a construction contract is served with an application for adjudication, the party must prepare a written response to the application and serve it on —

(a) the applicant and on any other party that has been served with the application; and

(b) the appointed adjudicator or, if there is no appointed adjudicator, on the prescribed appointor on which the application was served under section 26(1)(c).

(2) The response —

(a) must be prepared in accordance with, and contain the information prescribed by, the regulations; and

(b) must set out the details of, or have attached to it, any rejection or dispute of the payment claim that has given rise to the dispute; and

(c) must set out or have attached to it all the information, documentation and submissions on which the party making it relies in the adjudication.

[Section 27 amended: No. 55 of 2016 s. 9.]

28. Appointment of adjudicator in absence of agreed appointment

(1) If an application for adjudication is served on a prescribed appointor the appointor, within 5 business days after being served, must —

(a) appoint a registered adjudicator to adjudicate the payment dispute concerned; and

(b) send the application and any response received by it to the adjudicator; and

(d) notify the Building Commissioner in writing accordingly.

(2) If a prescribed appointor does not make an appointment under subsection (1) the Building Commissioner may appoint a registered adjudicator to adjudicate the payment dispute concerned.

(3) If the Building Commissioner makes an appointment under subsection (2), the Building Commissioner must —

(a) notify the prescribed appointor in writing accordingly and require the appointor to serve the application and any response received by it on the adjudicator appointed by the Building Commissioner; and

(b) notify the parties in writing accordingly.

[Section 28 amended: No. 16 of 2011 s. 128(6); No. 55 of 2016 s. 10.]

29. Adjudicators: conflicts of interest

(1) An appointed adjudicator who has a material personal interest in the payment dispute concerned or in the construction contract under which the dispute has arisen or in any party to the contract is disqualified from adjudicating the dispute.

(2) If an appointed adjudicator is disqualified —

(a) the adjudicator must notify the parties in writing of the disqualification and the reasons for it; and

(b) unless, within 5 business days after the date of the adjudicator’s notice, all of the parties in writing authorise the adjudicator to continue as the appointed adjudicator, the adjudicator’s appointment ceases; and

(d) the period commencing on the date when the adjudicator was served with the application for adjudication and ending on and including the date when the adjudicator notifies the parties under paragraph (a) does not count for the purposes of section 26(1).

(3) A party to a payment dispute may apply to the State Administrative Tribunal for a declaration that an appointed adjudicator is disqualified under subsection (1).

(4) The application must be made before the person is notified of a decision or determination made under section 31(2).

[Section 29 amended: No. 55 of 2016 s. 11.]

Division 3 — The adjudication process

30. Object of adjudication process

The object of an adjudication of a payment dispute is to determine the dispute fairly and as quickly, informally and inexpensively as possible.

31. Adjudicator’s functions

(1) In this section —

prescribed time means —

(a) if the appointed adjudicator is served with a response under section 27(1) — 10 business days after the date of the service of the response;

(b) if the appointed adjudicator is not served with a response under section 27(1) — 10 business days after the last date on which a response is required to be served under section 27(1).

(2) An appointed adjudicator must, within the prescribed time or any extension of it made under section 32(3)(a) —

(a) dismiss the application without making a determination of its merits if —

(i) the contract concerned is not a construction contract; or

(ia) the applicant gives written notice, to the adjudicator and each other party to the dispute, that they wish to withdraw the application; or

(ii) the application has not been prepared and served in accordance with section 26(1) and (2)(b) and (c); or

(iia) the application has not been prepared in accordance with section 26(2)(a), unless the adjudicator is satisfied that the application complies with section 26(2)(a) sufficiently for the adjudicator to commence adjudicating the dispute; or

(iii) an arbitrator or other person or a court or other body dealing with a matter arising under a construction contract makes an order, judgment or other finding about the dispute that is the subject of the application; or

(iv) satisfied that it is not possible to fairly make a determination because of the complexity of the matter or the prescribed time or any extension of it is not sufficient for any other reason;

(b) otherwise, determine on the balance of probabilities whether any party to the payment dispute is liable to make a payment, or to return any security and, if so, determine —

(i) the amount to be paid or returned and any interest payable on it under section 33; and

(ii) the date on or before which the amount is to be paid, or the security is to be returned, as the case requires.

(2A) Without limiting subsection (2)(b), an appointed adjudicator may, with the consent of the parties, make a determination under subsection (2)(b) in terms agreed to by the parties.

(3) If an application is not dismissed or determined under subsection (2) within the prescribed time, or any extension of it made under section 32(3)(a), the application is to be taken to have been dismissed when the time has elapsed.

[Section 31 amended: No. 55 of 2016 s. 12.]

32. Adjudication procedure

(1) For the purposes of making a determination, an appointed adjudicator —

(a) must act informally and if possible make the determination on the basis of —

(i) the application and its attachments; and

(ii) if a response has been prepared and served in accordance with section 27, the response and its attachments;

and

(b) is not bound by the rules of evidence and may inform himself or herself in any way he or she thinks fit.

(2) In order to obtain sufficient information to make a determination, an appointed adjudicator may —

(a) request a party to make a, or a further, written submission or to provide information or documentation, and may set a deadline for doing so;

(b) request the parties to attend a conference with the adjudicator;

(i) inspect any work or thing to which the payment dispute relates, provided the occupier of any place concerned consents to the entry and inspection;

(ii) arrange for any thing to which the payment dispute relates to be tested, provided the owner of the thing consents to the testing;

(iii) engage an expert to investigate and report on any matter relevant to the payment dispute.

(3) An appointed adjudicator may —

(a) with the consent of the parties, extend the time prescribed by section 31(2) for making a determination;

(b) with the consent of the parties, adjudicate simultaneously 2 or more payment disputes between the parties;

(c) adjudicate a payment dispute simultaneously with one or more other payment disputes if satisfied that doing so will not adversely affect the adjudicator’s ability to adjudicate the disputes in accordance with section 30.

(4) If an appointed adjudicator adjudicates simultaneously 2 or more payment disputes, the adjudicator may, in adjudicating one, take into account information the adjudicator receives in relation to the other, and vice versa.

(5) An adjudicator’s power to make a determination is not affected by the failure of either or both of the parties to make a submission or provide information within time or to comply with the adjudicator’s request to attend a conference with the adjudicator.

(6) To the extent that the practice and procedure in relation to adjudications is not regulated by this Part or the regulations, an appointed adjudicator may determine his or her own procedure.

[Section 32 amended: No. 55 of 2016 s. 13.]

33. Interest up to determination

(1) If an appointed adjudicator determines that a party to a payment dispute is liable to make a payment, he or she may also determine that interest is to be paid —

(a) if the payment is overdue under the construction contract, on the payment in accordance with the contract; or

(b) otherwise, on the whole or a part of the payment from the date the payment dispute arose at a rate not greater than the rate prescribed under the Civil Judgments Enforcement Act 2004 section 8(1)(a),

until and including the date of the determination.

(2) Subsection (1) does not authorise the awarding of interest upon interest.

[Section 33 amended: No. 8 of 2009 s. 38(2).]

34. Costs of parties to payment disputes

(1) Subject to subsection (2), parties to a payment dispute bear their own costs in relation to an adjudication of the dispute.

(2) If an appointed adjudicator is satisfied that a party to a payment dispute incurred costs of the adjudication because of frivolous or vexatious conduct on the part of, or unfounded submissions by, another party, the adjudicator may decide that the other party must pay some or all of those costs.

(3) If an appointed adjudicator makes a decision under subsection (2) the adjudicator must —

(a) decide the amount of the costs and the date on which the amount is payable; and

(b) give reasons for the decisions; and

(4) Divisions 4 and 5, with any necessary changes, apply to a decision made under subsection (2) as if it were a determination of an appointed adjudicator.

35. Certificates of completion etc., effect of

(1) This section applies if —

(a) the construction contract to which a payment dispute relates provides for a person to certify —

(i) that obligations under the contract have been performed; or

(ii) the amount of a payment that is to be made by a party;

and

(b) such a certificate is provided by a party to an adjudicator in the course of an adjudication.

(2) For the purposes of the adjudication —

(a) if the certificate relates to the final amount payable under the contract and has the effect of finalising the contract, the certificate is to be taken to be conclusive evidence of its contents;

(b) in any other case the certificate is to have such evidentiary weight as the appointed adjudicator thinks fit.

36. Determination, content of

An appointed adjudicator’s decision made under section 31(2)(b) must —

(a) be in writing; and

(b) be prepared in accordance with, and contain the information prescribed by, the regulations; and

(i) the amount to be paid and the date on or before which it is to be paid; or

(ii) the security to be returned and the date on or before which it is to be returned,

as the case requires; and

(d) give reasons for the determination; and

(e) identify any information in it that, because of its confidential nature, is not suitable for publication by the Building Commissioner under section 50; and

(f) be given to the parties to the adjudication; and

(g) be given to the Building Commissioner.

[Section 36 amended: No. 16 of 2011 s. 128(6).]

37. Dismissed applications

(1) If under section 31(2)(a) an appointed adjudicator dismisses an application for adjudication, he or she must —

(a) give reasons for doing so; and

(b) communicate the decision and the reasons in writing to the parties.

(2) If under section 31(3) an application for an adjudication of a payment dispute is taken to be dismissed —

(a) nothing in this Part prevents a further application being made under this Part for an adjudication of the dispute; and

(b) any further application must be made within 20 business days after the previous application is taken to be dismissed under section 31(3).

[Section 37 amended: No. 55 of 2016 s. 14.]

Division 4 — Effect of determinations

38. Determinations have effect despite other proceedings

An appointed adjudicator’s determination is binding on the parties to the construction contract under which the payment dispute concerned arose even though other proceedings relating to the payment dispute have been commenced before an arbitrator or other person or a court or other body.

39. Payment of amount determined and interest

(1) A party that is liable to pay an amount under a determination must do so on or before the date specified in the determination.

(2) Unless the determination provides otherwise, interest at the rate prescribed under the Civil Judgments Enforcement Act 2004 section 8(1)(a) is to be paid on such of the amount as is unpaid after the date specified in the determination.

(3) The interest to be paid under subsection (2) forms part of the determination.

(4) Interest under subsection (2) ceases to accrue when a copy of the determination is filed in a court under section 43.

[Section 39 amended: No. 8 of 2009 s. 38(3); No. 55 of 2016 s. 15.]

40. Progress payments under determinations to be on account

If —

(a) an appointed adjudicator —

(i) determines a payment dispute concerning a claim by a contractor for payment for part performance of its obligations but not for a final payment by the principal; and

(ii) determines that the principal is to pay the contractor an amount in respect of the claim;

and

(b) the principal, in accordance with the determination, pays the amount,

the payment is to be taken to be an advance towards the total amount payable under the contract by the principal to the contractor.

41. Determinations are final

(1) If on the adjudication of a payment dispute the appointed adjudicator makes a determination —

(a) the adjudicator cannot subsequently amend or cancel the determination except with the consent of the parties; and

(b) a party to the dispute may not apply subsequently for an adjudication of the dispute.

(2) Despite subsection (1)(a), if an adjudicator’s determination contains —

(a) an accidental slip or omission; or

(b) a material arithmetic error; or

the adjudicator, on the application of a party or, after notifying the parties, on the adjudicator’s own initiative, may correct the determination.

Division 5 — Enforcing determinations

42. Non‑compliance by principal, contractor may suspend its obligations

(1) If a determination requires the principal to pay the contractor an amount and the principal does not pay in accordance with the determination, the contractor may give the principal notice of the contractor’s intention to suspend the performance of its obligations.

(2) The notice must —

(a) be in writing; and

(b) be prepared in accordance with, and contain the information prescribed by, the regulations; and

(d) be given to the principal at least 3 business days before that date.

(3) If on the date stated under subsection (2)(c) in the notice the principal has not paid the contractor the amount in accordance with the determination, the contractor may suspend the performance of its obligations until no longer than 3 business days after the date on which the amount is paid.

(4) Subsection (3) does not prevent the contractor from at any time resuming the performance of its obligations.

(5) A contractor that suspends the performance of its obligations in accordance with this section —

(a) is not liable for any loss or damage suffered by the principal or by any person claiming through the principal; and

(b) retains its rights under the contract, including any right to terminate the contract.

[Section 42 amended: No. 55 of 2016 s. 16.]

43. Determinations may be enforced as orders of court

(1) In this section —

court of competent jurisdiction, in relation to a determination, means a court with jurisdiction to deal with a claim for the recovery of a debt of the same amount as the amount that is payable under the determination.

(2) A party entitled to be paid an amount under a determination may enforce the determination by filing in a court of competent jurisdiction —

(a) a copy of the determination that the Building Commissioner has certified to be a true copy; and

(b) an affidavit as to the amount not paid under the determination.

(3) On filing under subsection (2), the determination is taken to be an order of the court, and may be enforced accordingly.

[Section 43 amended: No. 16 of 2011 s. 128(6); No. 55 of 2016 s. 17.]

Division 6 — General

44. Costs of adjudications

(1) For the purposes of this section the costs of an adjudication are —

(a) the entitlements of the appointed adjudicator under subsection (2); and

(b) the costs of any testing done, or of any expert engaged, under section 32(2)(c).

(2) If an appointed adjudicator, within the prescribed time in section 31(2), dismisses an application for adjudication or makes a determination of the dispute, he or she is entitled —

(a) to be paid for his or her work —

(i) at a rate agreed between the adjudicator and the parties that is not more than the maximum rate, if any, prescribed by the regulations; or

(ii) if a rate was not agreed, at the rate published under section 51 in respect of the adjudicator;

and

(b) to be reimbursed any expenses reasonably incurred in connection with that work.

(3) An appointed adjudicator who is disqualified under section 29 has the entitlements in subsection (2) in respect of any adjudication work done before the disqualification is notified to the parties.

(4) Despite subsection (2), an appointed adjudicator may refuse to communicate his or her decision or determination under section 31(2) or 34(2) or subsection (10) until he or she has been paid and reimbursed in accordance with subsection (2).

(5) The parties involved in a payment dispute are jointly and severally liable to pay the costs of an adjudication of the dispute.

(6) As between themselves, the parties involved in a dispute are liable to pay the costs of an adjudication of the dispute in equal shares.

(7) Subsections (5) and (6) do not prevent a decision being made under section 34(2).

(8) An appointed adjudicator may at any time require one or more parties to provide a reasonable deposit, or reasonable security, for the, or any anticipated costs of the adjudication.

(9) A prescribed appointor, before appointing an adjudicator, may require the applicant for adjudication to provide a deposit, or reasonable security, for the, or any anticipated costs of the adjudication.

(10) If a party involved in a dispute has paid more than the party’s share of the costs of an adjudication of the dispute, having regard to subsection (6), the appointed adjudicator may decide that another party must pay to the first‑mentioned party such amount of the costs as would result in all the parties paying an equal amount of the costs.

(11) If an appointed adjudicator makes a decision under subsection (10) —

(a) the adjudicator must include in the decision the date on which the amount is payable; and

(b) Divisions 4 and 5, with any necessary changes, apply to the decision as if it were a determination of an appointed adjudicator.

(12) An appointed adjudicator may recover the costs of an adjudication from a person liable to pay the costs in a court of competent jurisdiction as if the costs were a debt due to the adjudicator.

45. Effect of this Part on civil proceedings

(1) This Part does not prevent a party to a construction contract from instituting proceedings before an arbitrator or other person or a court or other body in relation to a dispute or other matter arising under the contract.

(2) If other such proceedings are instituted in relation to a payment dispute that is being adjudicated under this Part, the adjudication is to proceed despite those proceedings unless all of the parties, in writing, require the appointed adjudicator to discontinue the adjudication.

(3) Evidence of anything said or done in an adjudication is not admissible before an arbitrator or other person or a court or other body, except for the purposes of an application made under section 29(3) or an appeal made under section 46.

(4) An arbitrator or other person or a court or other body dealing with a matter arising under a construction contract —

(a) must, in making any award, judgment or order, allow for any amount that has been or is to be paid to a party under a determination of a payment dispute arising under the contract; and

(b) may make orders for the restitution of any amount so paid, and any other appropriate orders as to such a determination.

46. Review, limited right of

(1) A person who is aggrieved by a decision made under section 31(2)(a) may apply to the State Administrative Tribunal for a review of the decision.

(2) If, on a review, a decision made under section 31(2)(a) is set aside and, under the State Administrative Tribunal Act 2004 section 29(3)(c)(i) or (ii), is reversed the adjudicator is to make a determination under section 31(2)(b) within 10 business days after the date on which the decision under section 31(2)(a) was reversed or any extension of that time consented to by the parties.

(3) Except as provided by subsection (1) a decision or determination of an adjudicator on an adjudication cannot be appealed or reviewed.

[Section 46 amended: No. 55 of 2016 s. 18.]

Part 4 — Administration

[47. Deleted: No. 16 of 2011 s. 128(5)]

48. Registering adjudicators

(1) An individual is eligible to be a registered adjudicator if he or she has the qualifications and experience prescribed by the regulations.

(2) The Building Commissioner may register an individual as a registered adjudicator —

(a) on the application of an individual; or

(b) on the nomination of a prescribed appointor.

(2A) The Building Commissioner must not register an individual as a registered adjudicator after the Building and Construction Industry (Security of Payment) Act 2021 Part 5 Division 2 comes into operation.

(3) The regulations may prescribe a fee to be paid on making such an application or nomination.

(4) The Building Commissioner must not register an individual as a registered adjudicator unless satisfied that the individual is eligible to be registered.

(5) The Building Commissioner may cancel the registration of an individual as a registered adjudicator if satisfied that the individual —

(a) has ceased to be eligible to be registered;

(b) has misconducted, or is incompetent or unsuitable to conduct, adjudications under Part 3.

(5A) The registration of an individual as a registered adjudicator is cancelled if the individual’s registration as an adjudicator or review adjudicator under the Building and Construction Industry (Security of Payment) Act 2021 Part 5 Division 2 is cancelled.

(6) The Building Commissioner must keep a register of registered adjudicators and make it available for public inspection at no charge.

(7) A certificate by the Building Commissioner stating that an individual was or was not at a time or in a period, or is or is not, a registered adjudicator is proof of the content of the certificate in the absence of evidence to the contrary.

[Section 48 amended: No. 16 of 2011 s. 128(6); No. 4 of 2021 s. 138.]

49. Review of registration decisions

A person who is aggrieved by a decision of the Building Commissioner made under section 48 may apply to the State Administrative Tribunal for a review of the decision.

[Section 49 amended: No. 16 of 2011 s. 128(6).]

50. Publication of adjudicators’ decisions

(1) The Building Commissioner may make available for public inspection the result, or a report, of the decisions of registered adjudicators.

(2) The Building Commissioner is to ensure that there is not included in the result, or a report, of the determination made available under subsection (1) —

(a) the identities of the parties to the adjudication;

(b) any information in the determination that is identified under section 36(e) as being not suitable for publication because of its confidential nature.

(3) No charge is payable for inspecting the result, or a report, of a determination made available under subsection (1).

[Section 50 amended: No. 16 of 2011 s. 128(6).]

51. Appointors’ and adjudicators’ rates to be published

(1) A registered adjudicator is to ensure that the rate at which the adjudicator charges for his or her work under this Act is published in a manner approved by the Building Commissioner.

(2) A prescribed appointor is to ensure that the rate at which the appointor charges for its work under this Act is published in a manner approved by the Building Commissioner.

(3) Nothing in subsection (1) or (2) prevents any of the parties from agreeing the rate to be charged by a registered adjudicator or a prescribed appointor for work under this Act.

(4) A published or agreed rate as referred to in this section is not to be more than the maximum rate, if any, prescribed by the regulations.

[Section 51 amended: No. 16 of 2011 s. 128(6).]

[52. Deleted: No. 4 of 2021 s. 139.]

Part 5 — Miscellaneous

53. No contracting out

(1) A provision in an agreement or arrangement, whether a construction contract or not and whether in writing or not, that purports to exclude, modify or restrict the operation of this Act has no effect.

(2) A provision in an agreement or arrangement that has no effect because of subsection (1) does not prejudice or affect the operation of other provisions of the agreement or arrangement.

(3) Any purported waiver, whether in a construction contract or not and whether in writing or not, of an entitlement under this Act has no effect.

54. Immunity from tortious liability

(1) In this section —

protected person means an appointed adjudicator, a prescribed appointor or the Building Commissioner.

(2) In this section, a reference to the doing of anything includes a reference to an omission to do anything.

(3) An action in tort does not lie against a protected person for anything that the person has done, in good faith, in the performance or purported performance of a function under this Act.

(4) The protection given by subsection (3) applies even though the thing done as described in that subsection may have been capable of being done whether or not this Act has been enacted.

(5) Despite subsection (3), the State is not relieved of any liability that it might have for the Building Commissioner having done anything as described in that subsection.

[Section 54 amended: No. 16 of 2011 s. 128(6).]

55. Regulations

(1) The Governor may make regulations prescribing all matters that are required or permitted by this Act to be prescribed, or are necessary or convenient to be prescribed for giving effect to the purposes of this Act.

(2) Without limiting subsection (1), the regulations may regulate the practice and procedure in adjudications.

56. Review of Act

(1) As soon as practicable after the 5th anniversary of its commencement, the Minister must review the operation and effectiveness of this Act and prepare a report about the review.

(2) As soon as practicable after preparing the report, the Minister must cause it to be laid before each House of Parliament.

Part 6 — Transitional provisions

[Heading inserted: No. 55 of 2016 s. 19.]

Division 1 — Provisions relating to the Construction Contracts Amendment Act 2016

[Heading inserted: No. 55 of 2016 s. 19.]

57. Resubmitted claims: previous adjudications

The reference in section 6(2) to an adjudication that has been dismissed or determined under section 31(2) includes a reference to an adjudication that was dismissed or determined under section 31(2) before 15 December 2016.

[Section 57 inserted: No. 55 of 2016 s. 19.]

58. Extension of periods of time

(1) This section applies to a period of time, specified in section 26(1), 28(1) or 29(2)(b), that expired before 15 December 2016.

(2) If a thing that could be done, or was required to be done, within the period was not done, and the period, as extended by the amendment in the Construction Contracts Amendment Act 2016 section 8, 10 or 11 (whichever is relevant), expires on or after 15 December 2016, the thing may be done within the period as extended.

[Section 58 inserted: No. 55 of 2016 s. 19.]

59. Effect of notices under s. 42(1) after commencement and before 1 January 2017

A notice purportedly given for the purposes of section 42(1) on or after 15 December 2016 and before 1 January 2017, but which was not given in compliance with section 42(2)(d), is taken to be as valid and as effective as it would have been if section 42(2)(d) had not been amended by the Construction Contracts Amendment Act 2016 section 16.

[Section 59 inserted: No. 55 of 2016 s. 19.]

60. Payment periods: contracts entered into before 3 April 2017

Section 10 applies to a construction contract entered into before 3 April 2017 as if the Construction Contracts Amendment Act 2016 section 7 had not come into operation.

[Section 60 inserted: No. 55 of 2016 s. 20.]

Schedule 1 — Implied provisions

[s. 13 to 22]

Division 1 — Variations

Variations must be agreed

The contractor is not bound to perform any variation of its obligations unless the contractor and the principal have agreed on —

(a) the nature and extent of the variation of those obligations; and

(b) the amount, or a means of calculating the amount, that the principal is to pay the contractor in relation to the variation of those obligations.

Division 2 — Contractor’s entitlement to be paid

Contractor entitled to be paid

(1) The contractor is entitled to be paid a reasonable amount for performing its obligations.

(2) Subclause (1) applies whether or not the contractor performs all of its obligations.

Division 3 — Claims for progress payments

Entitlement to claim progress payments

The contractor is entitled to make one or more claims for a progress payment in relation to those of the contractor’s obligations that the contractor has performed and for which it has not been paid by the principal.

When claims for progress payments can be made

(1) A claim by the contractor for a progress payment can be made at any time after the contractor has performed any of its obligations.

(2) The making of a claim for a progress payment does not prevent the contractor from making any other claim for moneys payable to the contractor under or in connection with this contract.

Division 4 — Making claims for payment

Claim for payment, content

(1) In this clause —

payment claim means a claim —

(a) by the contractor to the principal for payment of an amount in relation to the performance by the contractor of its obligations under this contract; or

(b) by the principal to the contractor for payment of an amount in relation to the performance or non‑performance by the contractor of its obligations under this contract.

(2) A payment claim must —

(a) be in writing; and

(b) be addressed to the party to which the claim is made; and

(d) state the date of the claim; and

(e) state the amount claimed; and

(f) in the case of a claim by the contractor — itemise and describe the obligations that the contractor has performed and to which the claim relates in sufficient detail for the principal to assess the claim; and

(g) in the case of a claim by the principal — describe the basis for the claim in sufficient detail for the contractor to assess the claim; and

(h) be signed by the claimant; and

(i) be given to the party to which the claim is made.

(3) In the case of a claim by the contractor, the amount claimed in a payment claim —

(a) must be calculated in accordance with this contract; or

(b) if this contract does not provide a means of calculating the amount, must be —

(i) if this contract says that the principal is to pay the contractor one amount (the contract sum) for the performance by the contractor of all of its obligations under this contract (the total obligations) — the proportion of the contract sum that is equal to the proportion that the obligations performed and detailed in the claim are of the total obligations; or

(ii) if this contract says that the principal is to pay the contractor in accordance with rates specified in this contract — the value of the obligations performed and detailed in the claim calculated by reference to those rates; or

(iii) in any other case — a reasonable amount for the obligations performed and detailed in the claim.

(4) Paragraph (b) of subclause (3) does not prevent the amount claimed in a progress claim from being an aggregate of amounts calculated under one or more of subparagraphs (i), (ii) and (iii) of that paragraph.

Division 5 — Responding to claims for payment

Term used: payment claim

In this Division —

payment claim means a claim —

(a) by the contractor to the principal for payment of an amount in relation to the performance by the contractor of its obligations under this contract; or

(b) by the principal to the contractor for payment of an amount in relation to the performance or non‑performance by the contractor of its obligations under this contract.

Responding to payment claim

(1) If a party that receives a payment claim —

(a) believes the claim should be rejected because the claim has not been made in accordance with this contract; or

(b) disputes the whole or part of the claim,

the party must, within 14 days after receiving the claim, give the claimant a notice of dispute.

(2) A notice of dispute must —

(a) be in writing; and

(b) be addressed to the claimant; and

(d) state the date of the notice; and

(e) identify the claim to which the notice relates; and

(f) if the claim is being rejected under subclause (1)(a) — state the reasons for the belief that the claim has not been made in accordance with this contract; and

(g) if the claim is being disputed under subclause (1)(b) — identify each item of the claim that is disputed and state, in relation to each of those items, the reasons for disputing it; and

(h) be signed by the party giving the notice.

(3) Within 28 days after a party receives a payment claim, the party must do one of the following, unless the claim has been rejected or wholly disputed in accordance with subclause (1) —

(a) pay the part of the amount of the claim that is not disputed;

(b) pay the whole of the amount of the claim.

(4) If under this contract the principal is entitled to retain a portion of any amount payable by the principal to the contractor —

(a) subclause (3) does not affect the entitlement; and

(b) the principal must advise the contractor in writing (either in a notice of dispute or separately) of any amount retained under the entitlement.

Division 6 — Interest on overdue payments

Interest payable on overdue payments

(1) Interest is payable on so much of an amount that is payable under this contract by a party to another party on or before a certain date but which is unpaid after that date.

(2) The interest is to be paid for the period beginning on the day after the date on which the amount is due and ending on and including the date on which the amount payable is paid.

(3) The rate of interest at any time is equal to that prescribed for that time under the Civil Judgments Enforcement Act 2004 section 8(1)(a).

[Clause 8 amended: No. 8 of 2009 s. 38(4).]

Division 7 — Ownership of goods

When ownership of goods supplied by contractor passes

The ownership of goods that are —

(a) related to construction work; and

(b) supplied to the site of the construction work by the contractor under its obligations under this contract,

passes from the contractor when whichever of the following happens first —

(d) when the goods become fixtures.

Division 8 — Duties as to unfixed goods on insolvency

Duties of principal or landowner etc. as to unfixed goods on insolvency

(1) In this clause —

insolvent means —

(a) in relation to a natural person, an insolvent under administration as that term is defined in the Corporations Act 2001 of the Commonwealth;

(b) in relation to a body corporate, a Chapter 5 body corporate as that term is defined in the Corporations Act 2001 of the Commonwealth.

(2) If —

(a) goods that are related to construction work have been supplied to the site of the construction work by the contractor under its obligations under this contract; and

(b) the contractor has not been paid for the goods; and

(d) ownership of the goods has not passed from the contractor; and

(e) the goods are in the possession of or under the control of —

(i) the principal; or

(ii) a person for whom, directly or indirectly, the principal is performing construction work or to whom, directly or indirectly, the principal is supplying goods and services that are related to construction work;

and

(f) the principal or that person becomes an insolvent,

the principal and that person —

(g) must not, during the insolvency, allow the goods to become fixtures or to fall into the possession of or under the control of any other person, other than the contractor, except with the prior written consent of the contractor; and

(h) must allow the contractor a reasonable opportunity to repossess the goods.

[Clause 10 amended: No. 14 of 2025 s. 8(2).]

Division 9 — Retention money

Retention money to be held on trust

If the principal retains from an amount payable by the principal to the contractor for the performance by the contractor of its obligations a portion of that amount (the retention money), the principal holds the retention money on trust for the contractor until whichever of the following happens first —

(a) the money is paid to the contractor; or

(b) the contractor, in writing, agrees to give up any claim to the money; or

(d) an adjudicator, arbitrator, or other person, or a court, tribunal or other body, determines that the money ceases to be payable to the contractor.

dline

Notes

This is a compilation of the Construction Contracts (Former Provisions) Act 2004 and includes amendments made by other written laws. For provisions that have come into operation, and for information about any reprints, see the compilation table.

Compilation table

Short title	Number and year	Assent	Commencement
Construction Contracts Act 2004 1	16 of 2004	8 Jul 2004	s. 1 and 2: 8 Jul 2004; Act other than s. 1 and 2: 1 Jan 2005 (see s. 2 and Gazette 14 Dec 2004 p. 5999)
Statutes (Repeals and Miscellaneous Amendments) Act 2009 s. 38	8 of 2009	21 May 2009	22 May 2009 (see s. 2(b))
Building Services (Complaint Resolution and Administration) Act 2011 s. 128	16 of 2011	25 May 2011	29 Aug 2011 (see s. 2(b) and Gazette 26 Aug 2011 p. 3475)
*Reprint 1: The Construction Contracts Act 2004* as at 12 Aug 2016** (includes amendments listed above)
Construction Contracts Amendment Act 2016	55 of 2016	29 Nov 2016	s. 1 and 2: 29 Nov 2016 (see s. 2(a)); Act other than s. 1, 2, 7 and 20: 15 Dec 2016 (see s. 2(b)); s. 7 and 20: 3 Apr 2017 (see s. 2(c))
Building and Construction Industry (Security of Payment) Act 2021 Pt. 7 Div. 3	4 of 2021	25 Jun 2021	1 Aug 2022 (see s. 2(c) and SL 2022/78 cl. 2(2)(a)(vii))
Statutes (Repeals and Minor Amendments) Act 2025 s. 8	14 of 2025	25 Sep 2025	26 Sep 2025 (see s. 2(b))

Other notes

1 Now known as the Construction Contracts (Former Provisions) Act 2004; short title changed (see note under s. 1).

Defined terms

[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]

Defined term Provision(s)

A 9

adjudication 3

applicant 3

appointed adjudicator 3

Building Commissioner 3

business day 3

civil works 4(1)

construction contract 3

construction work 3, 4(2) and (4)

contract sum Sch. 1 cl. 5(3)

contractor 3

costs of an adjudication 3

court of competent jurisdiction 43(1)

determination 3

insolvent Sch. 1 cl. 10(1)

obligations 3

party 3, 3

payment claim 3, Sch. 1 cl. 5(1) and 6

payment dispute 3

prescribed appointor 3

prescribed time 31(1)

principal 3

protected person 54(1)

registered adjudicator 3

retention money Sch. 1 cl. 11

site in WA 4(1)

total obligations Sch. 1 cl. 5(3)

This work is licensed under a Creative Commons Attribution 4.0 International Licence (CC BY 4.0). To view relevant information and for a link to a copy of the licence, visit www.legislation.wa.gov.au.

By Authority: GEOFF O. LAWN, Government Printer

Western Australia

Construction Contracts (Former Provisions) Act 2004

Western Australia

Construction Contracts (Former Provisions) Act 2004

Contents

Part 1 — Preliminary

Short title 2
Commencement 2
Terms used 2
Construction work 4
Goods and services related to construction work 7
Payment dispute 8
Construction contracts to which this Act applies 9
Application to Crown 10

Part 2 — Content of construction contracts

Division 1 — Prohibited provisions

Prohibited: pay if paid/when paid provisions 11
Prohibited: provisions requiring payment to be made after 42 days 11
Prohibited: prescribed provisions 11
Other provisions of contract not affected 11

Division 2 — Implied provisions

Variations of contractual obligations 12
Contractor’s entitlement to be paid 12
Contractor’s entitlement to claim progress payments 12
Making claims for payment 12
Responding to claims for payment 12
Time for payment 13
Interest on overdue payments 13
Ownership of goods 13
Duties as to unfixed goods on insolvency 13
Retention money 14
Implied provisions: interpretation etc. 14

Part 3 — Adjudication of disputes

Division 1 — Preliminary

Interpretation of construction contract 15

Division 2 — Commencing adjudication

Who can apply for adjudication 15
Applying for adjudication 15
Responding to application for adjudication 17

The Act’s central concepts are defined in Part 1 and used throughout; understanding them is necessary to apply the mechanics.

Construction contract and construction work (s 3, s 4). "Construction contract" is broad: it includes any agreement under which a person (the contractor) must carry out construction work, supply related goods to the site, supply professional services related to the work, or provide on‑site services related to the work (s 3). "Construction work" is defined expansively in s 4(2) to include civil works, building or structure construction and a wide range of ancillary tasks and temporary works. The definition excludes certain extraction, drilling and fabrication activities (s 4(3)), and excludes watercraft construction (s 4(4)). The Act applies to work at any "site in WA" (s 4(1)).
Related goods and services (s 5). The Act treats materials, components, fittings and plant used in construction as "goods related to construction work" (s 5(1)). Professional services that relate directly to construction work , architectural, engineering, surveying, project management and like services , are included (s 5(2)), while accounting, financial and legal services are excluded from that category unless regulations prescribe otherwise. On‑site services are defined by reference to whether they relate directly to the work (s 5(3)). The regulations can refine these boundaries (s 5(4)).
Payment claim and payment dispute (s 3, s 6). A "payment claim" is any claim by the contractor to the principal for payment for performance of obligations, or by the principal to the contractor for payment for performance or non‑performance (s 3). A "payment dispute" arises where a payment claim is rejected or disputed, or where a payment or retention or security is not made or returned when contractually due (s 6(1)). The Act excludes disputes that are essentially the subject of an adjudication already dismissed or determined (s 6(2)).
Implied provisions , Schedule 1. A suite of default rules is implied where the contract lacks written provisions: agreed variations (Sch 1 cl 1); entitlement to be paid and to claim progress payments (Sch 1 cl 2-4); mechanics and content of payment claims (Sch 1 cl 5); responding to claims with notice of dispute and time limits (Sch 1 cl 7); interest on overdue payments at a statutory rate (Sch 1 cl 8 referencing Civil Judgments Enforcement Act 2004 s 8(1)(a)); ownership passing on payment or fixture (Sch 1 cl 9); duties on insolvency to preserve unfixed goods and permit repossession (Sch 1 cl 10); and retention money being held on trust for the contractor (Sch 1 cl 11). Section 13-22 import these implied terms where no written provision exists.
Prohibited provisions and no contracting out (s 9-12, s 53). The Act invalidates pay‑if‑paid/pay‑when‑paid clauses (s 9), limits payment periods to 42 days (s 10), and allows regulations to identify further prohibited provisions (s 11). Section 53 makes any attempt to contract out of the Act ineffective, and provides that purported waivers of entitlements under the Act are void.
Adjudication and its actors (Part 3, ss 24-46). Adjudication is a statutory, expedited process. Parties, appointed adjudicators, prescribed appointors and the Building Commissioner are the key actors. Registered adjudicators must satisfy prescribed eligibility criteria (s 48). The process prescribes application (s 26), response (s 27), adjudicator appointment (s 28), conflict rules (s 29), functions and decision windows (s 31-32), and finality and enforcement (ss 38-43). The object is to resolve disputes "fairly and as quickly, informally and inexpensively as possible" (s 30).
Costs, security and enforcement (s 33-44). The Act sets out how interest up to determination may be awarded (s 33), a presumption that parties bear their own costs unless frivolous conduct exists (s 34), adjudicators’ remuneration and entitlement to require deposits (s 44(2), (8)-(9)), and that adjudicator decisions can be turned into enforceable court orders by filing a certified copy with an affidavit about unpaid amounts (s 43).
Administrative overlay and limits (Part 4, ss 48-51; Part 6). The Building Commissioner maintains a register of adjudicators (s 48(6)), may publish decisions (s 50) subject to redaction of confidential material (s 36(e), s 50(2)), and adjudicators and appointors must publish their rates (s 51). The Act contains transitional provisions relating to later amendments (Part 6, ss 57-60) and limits on registration after the 2021 Act’s registration provisions come into operation (s 48(2A)).

These concepts structure the allocation of payment risk, the operational timelines for disputes, and the administrative duties placed on parties, adjudicators, appointors and the Building Commissioner.

The Act directly affects four broad groups: contractors and subcontractors, principals (including developers, owners, and head contractors), adjudicators and appointors, and public authorities administering the system.

Contractors and subcontractors. The Act defines contractors as persons under construction contracts who have obligations to carry out construction work, supply related goods or provide professional or on‑site services (s 3). Contractors gain statutory entitlements: to be paid reasonable amounts for performed work (Sch 1 cl 2), to make progress claims (Sch 1 cl 3-4), and to use the expedited adjudication process if disputes arise (s 25-26). They also gain protections on ownership of goods (Sch 1 cl 9) and retention money held on trust (Sch 1 cl 11). Contractors are obliged to prepare payment claims in the statutory form and within timescales (Sch 1 cl 5), and to comply with application and service rules if they seek adjudication (s 26).
Principals, head contractors, and upstream payers. Principals face restrictions on contract drafting: pay‑when‑paid provisions are ineffective (s 9); payment periods are curtailed to 42 days from claim (s 10). They bear counter‑party obligations: to respond to claims with notices of dispute within the statutory window (Sch 1 cl 7(1)), to pay undisputed parts within 28 days (Sch 1 cl 7(3)), and to hold retention monies on trust (Sch 1 cl 11). Principals risk suspension of contractor performance if they fail to comply with an adjudication (s 42) and face potential enforcement where a determination is filed as a court order (s 43). If principals or their related parties become insolvent, they have duties to preserve unfixed goods for contractors (Sch 1 cl 10).
Adjudicators and prescribed appointors. Registered adjudicators decide disputes under the Act (s 48). Their eligibility, publishing and remuneration are regulated (s 48(1), s 51). They have immunities from tort liability for acts done in good faith while performing functions under the Act (s 54). They must disclose and act on conflicts (s 29), and they may demand deposits or refuse to communicate determinations until paid (s 44(4), (8)-(9)). Prescribed appointors have the statutory duty to appoint adjudicators on receipt of applications and must publish their rates (s 28, s 51).
Building Commissioner and regulators. The Building Commissioner has administrative functions: being notified of appointor actions and adjudicator appointments (s 28(1)(d)), maintaining and publishing a register of adjudicators (s 48(6)), publishing decisions or reports while protecting confidentiality (s 50), and being the recipient of adjudicator determinations (s 36(f)-(g)). The Governor may make regulations covering many matters, including practice and procedure in adjudications (s 55). The Act also cross‑references other regimes (Civil Judgments Enforcement Act 2004 for interest rates; Corporations Act 2001 for insolvency definitions in Sch 1 cl 10).
The Crown and public sector bodies. The Act binds the Crown (s 8). Section 7(2) specifies the Act applies irrespective of where the contract is entered or the law governing it; that means public sector contracting practices that attempt to import foreign governing law or long payment terms may find those contract terms ineffective to the extent they conflict with the Act.
Legal and financial advisers, insurers and financiers. These actors are materially affected although not parties to a contract: they advise on drafting, cash‑flow modelling, risk allocation and dispute strategy. The Act’s invalidation of certain payment defences (s 9) and its enforcement mechanism (s 43) change lenders’ and insurers’ assessment of recoverability and timing of cash flows, potentially affecting financing terms and insurance pricing.

Geography and time limits matter. The Act applies to construction work on "a site in WA" (s 4(2)), and, per s 7(1), only to contracts entered after this Act’s commencement and before the Building and Construction Industry (Security of Payment) Act 2021 s 22 came into effect. Section 48(2A) discontinues registration of adjudicators after the 2021 Act’s equivalent registration regime becomes operational. The practical consequence is that the Act is primarily relevant to contracts within the transitional window specified by s 7.

The Act embeds specific, enforceable duties on parties and confers rights that can be exercised administratively and in court.

Key duties

Duty to honour statutory restrictions on contract terms: Parties cannot give effect to provisions that make payment contingent upon a payer being paid by another (s 9). Any provision requiring payment later than 42 days is to be read as requiring payment within 42 days (s 10). Regulations may prescribe additional prohibited provisions (s 11). Attempts to contract out of the Act or to waive entitlements under the Act are ineffective (s 53).
Duties relating to claims and responses: A payment claim must comply with the content requirements (Sch 1 cl 5) , written, addressed, containing name, date, amount, signatures and itemisation or basis for the claim. A party receiving a claim must give a written notice of dispute within 14 days if the claim is believed to be improperly made or disputed (Sch 1 cl 7(1)-(2)). Within 28 days after receiving a claim, unless wholly rejected or disputed, the party must pay the undisputed part or the whole amount (Sch 1 cl 7(3)).
Duties relating to retention money and ownership: Principals holding retention money must hold it on trust for the contractor until specified events (Sch 1 cl 11). Ownership of goods supplied by a contractor passes either when the contractor is paid for the goods or when the goods become fixtures (Sch 1 cl 9). On insolvency of the principal or a related person, the principal must not permit goods to become fixtures or pass out of possession and must allow the contractor a reasonable opportunity to repossess unfixed goods (Sch 1 cl 10).
Duties connected to adjudication procedure: Applicants must prepare and serve an adjudication application within 90 business days of the dispute arising (s 26(1)), serve all other parties, and serve either an appointed adjudicator or a prescribed appointor (s 26(1)(c)). Parties served must prepare and serve a written response within 10 business days (s 27(1)). A prescribed appointor must appoint an adjudicator within five business days of being served (s 28(1)).
Financial security duties: Adjudicators and appointors may require deposits or security for adjudication costs (s 44(8)-(9)). If an adjudicator demands a deposit, parties must provide it as required under s 26(1)(d).

Key rights

Contractors’ right to be paid and to claim progress payments: Contractors are entitled to reasonable payment for work done (Sch 1 cl 2) and to make progress claims whenever obligations have been performed (Sch 1 cl 3-4).
Access to adjudication: Any party to a construction contract facing a payment dispute can apply for adjudication (s 25), except in narrowly defined circumstances (such as where another adjudication application has already been made, s 25(a), or the dispute is the subject of a court or arbitral order, s 25(b)).
Remedies and enforcement rights: An appointed adjudicator may determine that a party is liable to pay an amount and set the date for payment (s 31(2)(b)), award interest up to determination (s 33), and determine costs in limited circumstances (s 34). If a principal fails to comply, a contractor may give notice of intention to suspend performance and then suspend in accordance with s 42. A party may enforce an adjudicator’s determination by filing a certified copy in a court of competent jurisdiction, after which it is treated as an order of the court (s 43).
Limited review rights: There is a constrained right to apply to the State Administrative Tribunal to review a decision dismissed under s 31(2)(a) (s 46(1)). Otherwise, determinations are final and not generally subject to appeal or review (s 46(3)).
Protections for adjudicators and administrators: Appointed adjudicators, prescribed appointors and the Building Commissioner are immune from tort liability for acts done in good faith in performing functions under the Act (s 54), although the State’s vicarious liability is preserved to the extent noted (s 54(5)).

These duties and rights reallocate procedural burdens and remedies: they impose documentary and timing obligations on parties (Sch 1 cl 5; ss 26-27), provide enforcement routes to contractors (s 43; s 42), and constrain the ability of parties to agree otherwise (s 53). The Act therefore creates a predictable administrative structure and rights that can be exercised quickly, but also imposes compliance and financial requirements (deposits, joint and several liability for costs) that influence parties’ behaviour.

The Act does not create criminal penalties for non‑compliance; rather, enforcement primarily proceeds through civil mechanisms, adjudication outcomes and associated remedies.

Enforcement mechanisms

Adjudicator determinations and court enforcement (s 43). The main enforcement route is filing a certified copy of an adjudicator’s determination in a court of competent jurisdiction with an affidavit as to unpaid amounts. On filing, the determination is taken to be an order of the court and can be enforced accordingly (s 43(2)-(3)). This converts a statutory determination into the procedural posture of a debt collection within existing civil enforcement frameworks.
Suspension of contractor performance (s 42). Where a determination requires the principal to pay and the principal fails to do so, the contractor may give written notice of intention to suspend performance and then suspend on the stated date if payment has not been made (s 42(1)-(3)). The contractor is not liable for loss or damage suffered by the principal or any person claiming through the principal during suspension and retains contractual rights, including termination (s 42(5)). The contractor’s suspension right is time‑limited: the suspension cannot extend beyond three business days after payment (s 42(3)).
Interest and cost awards (ss 33-34, 39). An adjudicator may award interest up to the date of determination where a party is liable to pay (s 33). Post‑determination interest accrues at the rate prescribed under the Civil Judgments Enforcement Act 2004 s 8(1)(a), unless the determination provides otherwise (s 39). Adjudicators may order costs in cases of frivolous, vexatious or unfounded submissions (s 34(2)), and can adjust parties’ shares of adjudication costs (s 44(10)-(11)), with such decisions enforceable as determinations.
Trustee obligations and remedies for retention monies (Sch 1 cl 11). Retention monies are to be held on trust for the contractor until the money is paid, the contractor waives the claim in writing, payment ceases to be payable by operation of contract, or an adjudicator/arbitrator/court determines the money ceases to be payable (Sch 1 cl 11). This trust status creates an equitable remedy and priority against other creditors in insolvency contexts, subject to statutory insolvency rules.

Lack of criminal sanctions and civil liability structure

No express criminal offences for breach. The Act does not impose criminal penalties for contravening its prohibitions or procedural rules. Instead, it renders offending contractual provisions ineffective (ss 9, 11, 53) and supplies compensatory and enforcement routes (adjudication determinations, filing in court, suspension, trust remedies).
Tort immunity for protected persons (s 54). Appointed adjudicators, prescribed appointors and the Building Commissioner have immunity from tort for acts done in good faith performing functions under the Act (s 54(3)). The State remains potentially liable for actions of the Building Commissioner (s 54(5)). The immunity reduces the risk of collateral litigation against adjudicators but shifts the enforcement focus onto remedies against parties and the adjudication decision itself.

Procedural risks and enforcement costs

Costs of adjudication and security demands can operate as de facto gatekeeping. Adjudicators and appointors may require deposits or security for anticipated costs (s 44(8)-(9); s 26(1)(d)). Adjudicators may refuse to issue or communicate determinations until paid (s 44(4)), which can delay enforcement and intensify cash‑flow impacts on parties.
Finality and limited review mean determinations are practically enforceable and carry substantial immediate effect (ss 38, 41-46). The Act limits appeals, which reduces post‑decision litigation but concentrates reliance on initial adjudication and on courts only for enforcement and narrow review on discrete procedural grounds.
Interest and post‑determination enforcement (s 39). Interest can accrue after the date specified in the determination until the determination is filed (s 39(4)). Filing in court stops interest accrual under that subsection, but parties seeking enforcement must meet court filing formalities and have access to a court of competent jurisdiction (s 43).

Summary: the Act structures enforcement around adjudicator determinations convertible to court orders, contractual suspension rights, equitable trust treatment of retention money, and interest and cost remediation. It favours civil enforcement and practical remedies over criminal sanction, and creates procedural devices (deposits, refusal to publish) that can create enforcement bottlenecks if parties do not meet cost demands.

The Act interlocks with several other statutory regimes and institutional structures referenced explicitly in its text.

Building and Construction Industry (Security of Payment) Act 2021. The Act is expressly time‑limited in application: it applies to contracts entered after its commencement and before the Building and Construction Industry (Security of Payment) Act 2021 s 22 (the replacement Act) came into operation (s 7(1)). Section 48(2A) prevents registration of adjudicators under this Act after the 2021 Act’s Part 5 Division 2 comes into operation. Practically, that limits the Act’s ongoing administrative operation and directs contemporary registration and adjudication matters to the 2021 Act once operative.
Building Services (Complaint Resolution and Administration) Act 2011. The Building Commissioner is defined by reference to s 85 of that Act (s 3). The Building Commissioner has administrative roles under this Act (notified of appointments, keeps register, publishes decisions, s 28, s 48, s 50). This ties adjudication administration to the wider building services administrative apparatus.
Civil Judgments Enforcement Act 2004. The statutory rate of interest used for overdue payments and post‑determination interest is taken from the Civil Judgments Enforcement Act 2004 s 8(1)(a) (Sch 1 cl 8; ss 33, 39). Therefore interest calculations for adjudications and implied contract provisions reference that other statute’s interest rate, which may change over time independent of this Act.
Interpretation Act 1984. Section 23 requires the Interpretation Act 1984, and ss 3 to 6 of this Act, to apply to interpretation and construction of implied provisions despite any contrary provision in a construction contract. This gives statutory primacy to interpretation rules and the Act’s definition framework.
Corporations Act 2001 (Commonwealth). Insolvency definitions used in Sch 1 cl 10 (duties regarding unfixed goods on insolvency) rely on the Corporations Act 2001 definitions of "insolvent" for bodies corporate and "insolvent under administration" for natural persons (Sch 1 cl 10(1)). This links the operation of Sch 1 cl 10 duties to the federal insolvency regime, which may affect priorities and remedies in corporate insolvency contexts.
State Administrative Tribunal Act 2004 and State Administrative Tribunal. The Act provides a limited right of review to the State Administrative Tribunal against certain dismissal decisions under s 31(2)(a) (s 46(1)). Also, section 29(3) allows a party to apply to the SAT for a declaration that an appointed adjudicator is disqualified. The presence of these rights embeds administrative law review within the adjudication scheme.
Courts and arbitration. The Act recognises concurrent dispute resolution processes. It does not prevent parties from commencing proceedings before arbitrators or courts (s 45(1)), and adjudication proceeds despite concurrent proceedings unless all parties request discontinuance (s 45(2)). Courts and arbitrators must account for any amount paid under a determination (s 45(4)(a)) and may order restitution (s 45(4)(b)). Determinations are binding even if other proceedings are underway (s 38). This creates a statutory relationship rather than exclusivity.
Trusts and equitable doctrine. The statutory trust for retention monies (Sch 1 cl 11) creates an equitable obligation on principals holding retention money for contractors, aligning statutory trust treatment with general fiduciary/trust law principles. The Act’s trust provision will interact with insolvency priorities and statutory schemes under the Corporations Act.
Regulations and delegated powers. The Governor may make regulations to prescribe matters required or convenient to implement the Act, including practice and procedure in adjudications (s 55). Regulations therefore can materially affect timetables, forms and fees, and can prescribe additional prohibited contract provisions (s 11).

Interaction implications and risk points

Priority of statutory implied terms over contract. Sections 13-23 import implied provisions where no written provision exists, and s 53 prevents contracting out. That means parties cannot contract around core protections (for example, retention money trust or pay‑when‑paid exclusions). This statutory primacy may collide with pre‑existing contract terms or with foreign governing law clauses, but s 7(2)(c) clarifies the Act applies irrespective of governing law.
Cross‑jurisdictional and federal interplay. The Act uses federal insolvency definitions and references federal legislation for interest rates; those cross‑references embed the Act in federal regulatory frameworks and may produce timing or priority effects requiring coordination with federal law.
Transition to the 2021 Act. The Act’s transitional clauses (Part 6) and the registration cut‑off (s 48(2A)) mean practitioners must check contract dates and commencement dates of the 2021 Act to know which statutory scheme governs a particular contract or adjudication.

In short, the Act operates within a network of state administrative law, federal insolvency and enforcement law, and regulatory instruments. Practitioners must map contract dates, the location of works, insolvency status and concurrent proceedings to determine interaction effects.

The Act has been amended multiple times; the compilation table and annotations attached to the text specify the principal changes and their commencement dates. The statutory history is essential because the Act’s operative scope is time‑limited relative to the later 2021 Security of Payment Act.

Principal amendments recorded in the compilation:

Initial enactment and commencement. The Construction Contracts Act 2004 (16 of 2004) received assent on 8 July 2004. Section 1 and 2 commenced on 8 July 2004, and the rest of the Act commenced on 1 January 2005 (compilation table note).
Statutes (Repeals and Miscellaneous Amendments) Act 2009 (No. 8 of 2009) made amendments commencing 22 May 2009 (compilation table).
Building Services (Complaint Resolution and Administration) Act 2011 (No. 16 of 2011) amended several administrative provisions , for example, s 48 and other references to the Building Commissioner , with effect from 29 August 2011 (compilation table; s 128).
Construction Contracts Amendment Act 2016 (No. 55 of 2016). This substantive amendment package introduced changes with staggered commencement: s 1 and 2 on 29 November 2016; most of the Act on 15 December 2016; and specific provisions (s 7 and s 20 of that amending Act) commenced on 3 April 2017 (compilation table). The 2016 amendments modified time periods (see s 26 and s 31 amendments), clarified aspects of adjudication, and added transitional provisions (Part 6 ss 57-60). In particular, the 2016 Act inserted ss 57-60 to manage resubmitted claims and transitional timing (Part 6, inserted s 57-60).
Building and Construction Industry (Security of Payment) Act 2021. The 2021 Act (4 of 2021) introduced a new security of payment framework and, by its Part 7 Division 3, operated to replace the present Act for contracts after the commencement threshold specified. The 2021 Act’s relevant provisions came into operation on 1 August 2022 (compilation table). Section 7(1) of this Act limits application to contracts entered into after this Act’s commencement and before the 2021 Act s 22 commenced.
Statutes (Repeals and Minor Amendments) Act 2025 (No. 14 of 2025). The compilation notes an amendment dated 26 September 2025 (s 8 of that Act) that amended Clause 10 of Schedule 1 (Sch 1 cl 10, duties as to unfixed goods on insolvency). The annotated Schedule records "[Clause 10 amended: No. 14 of 2025 s. 8(2)]." The compilation itself is dated 2025 and includes this change.

Key amendment impacts visible on the face of the Act

Timeframes and procedure were reworked in 2016 (ss 26-32 changes). The 2016 amendments affected service and decision times and added transitional protections for earlier claims (ss 57-60).
Administrative changes tethered roles to the Building Commissioner (2011 amendments). The Building Commissioner’s responsibilities and register duties were clarified in 2011 (s 48, s 50).
The 2021 Act substantially displaced the Act for new contracts from 1 August 2022, and registration under this Act was curtailed thereafter (s 48(2A)). The Act therefore functions as a "former provisions" regime for legacy contracts within defined windows.
The 2025 amendment to Sch 1 cl 10 modifies duties regarding unfixed goods on insolvency; the Act text notes this amendment but does not elaborate in the headnote , practitioners must consult the amending instrument for precise textual changes.

Practical note: because many operative rules depend on dates (contract entry date, dates of dispute, commencement dates of amending Acts), practitioners must track the precise commencement dates cited in the compilation table and the Gazette notices that brought amendments into force. The Act’s annotations reflect those commencement particulars.

The Act text and compilation notes do not cite or record any judicial decisions, and the compilation includes no case law references. Accordingly, there is no litigation history provided in the statutory text itself. The Act creates a statutory adjudication regime intended to be final and largely non‑appealable (s 46(3)), with limited review rights to the State Administrative Tribunal for dismissals under s 31(2)(a) (s 46(1)). Section 29(3) allows parties to apply to the State Administrative Tribunal for declarations of adjudicator disqualification.

What the Act itself makes available to courts and tribunals

Courts and arbitrators must account for adjudication outcomes. If a court or arbitrator later addresses matters arising under the same contract, it must allow for amounts already paid under a determination and may order restitution or other appropriate orders (s 45(4)). That will affect how courts treat double recovery and set‑offs.
Determinations are binding despite other proceedings. Section 38 makes adjudicator determinations binding on parties even where other court or arbitration proceedings are pending. That statutory bindingness has the potential to generate litigation issues about the scope of bindingness, the interplay with final judgments on other matters, and restitution orders; however, the Act text does not record judicial exposition of those points.
Finality and narrow appeal path. The Act’s finality clause (s 41) and the restricted review provisions (s 46) give rise to potential legal challenges concentrated on procedural fairness, adjudicator disqualification, or statutory power limits. Any judicial doctrine developed around these points would occur outside the Act’s text, in case law not recorded here.

Because the statute itself does not record decisions, practitioners must search case law databases for jurisprudence developed under the Act. The Act’s design , binding determinations with limited appeals , suggests litigation under the Act will be concentrated on (a) judicial enforcement of determinations via court filings (s 43), (b) challenges to adjudicator impartiality or jurisdiction (s 29, s 31(2)(a)(i)), and (c) restitution and interplay with subsequent court awards (s 45(4)). The statutory text equips courts to address these matters, but the compilation does not provide case examples.

The Act contains several points where surface language, procedural timings, or interactions with other provisions produce traps for the unwary. The following are specific, source‑grounded examples.

Time computations use business days with a statutory exclusion. "Business day" excludes weekends, public holidays and the period 25 December to 7 January inclusive (s 3). Time periods for application and response (90 business days under s 26(1); 10 business days under s 27(1); 5 business days for appointors to appoint under s 28(1)) must be computed with that definition in mind. The extra Christmas-New Year exclusion can materially extend the calendar time available.
Conflicts between implied times and modified times. Schedule 1 cl 7(3) requires payment of undisputed amounts within 28 days after a claim, while s 10 reads down contract clauses requiring payment beyond 42 days to 42 days. The implied provision (28 days) applies when there is no written contractual provision on time for payment; s 10 modifies a written provision requiring payment in more than 42 days. Practitioners must determine whether a contract contains a written payment time; if it does not, Sch 1 applies; if it does and the written time exceeds 42 days, s 10 cuts it down to 42 days. The practical risk is confusing which default applies where partial contract drafting exists.
"Pay if paid" clauses rendered ineffective, but other security mechanisms remain. Section 9 makes contingent payment clauses ineffective. However, the statute does not (and could not) prevent other forms of security or subordination arrangements outside the construction contract (for example, retention monies, off‑site security, bank guarantees) unless they contravene other provisions. Parties who rely on pay‑when‑paid protections must recognise they are not enforceable under this Act.
Contracting out is ineffective but drafting residuals survive. Section 53 voids provisions that purport to exclude, modify or restrict the Act. However, s 12 provides that a provision void under s 9 or s 11 or read down under s 10 does not prejudice or affect other provisions of the contract. The "gotcha" is that some contractual provisions intended to operate alongside invalid clauses may have been drafted to depend on them, creating unintended gaps in the contractual architecture without automatically creating implied replacements beyond what Schedule 1 supplies.
Adjudication costs can be demanded upfront and can block determinations. Adjudicators and appointors may require deposits or security for costs (s 44(8)-(9)), and adjudicators may refuse to communicate decisions until paid (s 44(4)). An adjudicator can therefore forestall the procedural effectiveness of a determination by invoking unpaid fees, and parties are joint and severally liable for costs (s 44(5)). Parties who cannot meet deposit demands risk delay and potential loss of enforcement momentum.
Dismissal for procedural defects or complexity. An adjudicator must dismiss an application in several scenarios: if the contract is not a construction contract (s 31(2)(a)(i)); if the application is not served properly (s 31(2)(a)(ii)); or if the adjudicator is satisfied it is not possible to fairly determine the matter due to complexity or insufficient prescribed time (s 31(2)(a)(iv)). The discretion to dismiss on complexity grounds introduces uncertainty for parties with complex disputes; a dismissal restarts a 20 business day window for a fresh application (s 37(2)(b)).
Immunity for adjudicators and appointors. Section 54 immunises protected persons from tort for acts done in good faith. That reduces the potential of suing an adjudicator for negligence or misfeasance in the decision process. Parties dissatisfied with an outcome cannot generally pursue tort claims against adjudicators, narrowing remedies to review or enforcement channels under the Act.
Trust status of retention money may not secure funds in practice. Sch 1 cl 11 declares retention monies held by the principal to be held on trust for the contractor. While that provides an equitable remedy and priority, practical priority in insolvency scenarios will remain constrained by federal insolvency laws and the timing of creation and control of the funds. Practitioners should not assume the trust status provides absolute protection without mapping to insolvency and secured creditor hierarchies under the Corporations Act.
Transition and registration cessation. Section 48(2A) forbids registration of adjudicators under this Act after the 2021 Act's registration regime commences. Practitioners must check whether proceedings and parties fall within the "former provisions" window in s 7(1). A failure to map the contract entry date against the 2021 Act’s commencement risks applying the wrong statutory regime.
Evidence exclusion and double proceedings. Evidence of anything said or done in an adjudication is inadmissible in later court or arbitration proceedings, except for SAT applications or appeals under s 29(3) and s 46 (s 45(3)). However, s 45(1) permits parallel proceedings. Parties must manage the evidentiary split: they may not be able to reuse adjudication materials in later litigation.

These are concrete operational hazards visible in the statute. They principally concern timing, deposit and cost demands, trust and insolvency interactions, registration and transition dates, and the limited reviewability of adjudicator decisions.

This section sets out concrete steps and processes a party (contractor or principal) should follow to comply with the Act’s mandatory and implied requirements. Citations to the relevant provisions are included so advisers can check the statutory text.

Determine whether the Act applies to your contract.

Check the contract entry date. The Act applies to construction contracts entered into after the Act commenced and before the Building and Construction Industry (Security of Payment) Act 2021 s 22 came into effect (s 7(1)). If the contract date falls outside this window, the 2021 Act or other regimes may apply.
Confirm the work is "construction work" on a site in Western Australia (s 4(2)). Use the definition in s 4 to confirm scope, excluding activities in s 4(3) where relevant.

Draft, issue and respond to payment claims correctly.

Prepare payment claims in writing and include the content specified in Schedule 1 cl 5: addressee, claimant’s name, date, amount, itemisation and description of obligations performed (Sch 1 cl 5(2)(f)), signature and service (Sch 1 cl 5(2)(a)-(i)). Contractors should keep contemporaneous records of the work items described.
For principals or payers: if you believe the claim is improperly made or you wish to dispute it, serve a written notice of dispute within 14 days after receiving the claim, complying with Sch 1 cl 7(2) (it must identify and explain disputed items or reasons for rejection). Failure to deliver a valid dispute notice preserves an obligation to pay the undisputed portion (Sch 1 cl 7(3)).
Pay undisputed parts. Unless the claim is wholly rejected or disputed properly, pay the undisputed portion within 28 days after receiving the claim (Sch 1 cl 7(3)). Keep proof of payment and communications.

Watch and respect statutory time limits.

Adjudication commencement: apply within 90 business days after the dispute arises (s 26(1)). Compute business days using s 3’s definition (excluding weekends, public holidays, and 25 December-7 January).
Response to adjudication application: prepare and serve the written response within 10 business days (s 27(1)) and ensure it contains required material under s 27(2).
Adjudicator decision timelines: expect the appointed adjudicator to issue determinations within the prescribed time (generally 10 business days after the response is served or would be due, s 31(1)-(2)), unless an extension is agreed (s 32(3)(a)).

Prepare adjudication applications carefully.

Serve the application on all other parties and on the adjudicator or prescribed appointor as required (s 26(1)(b)-(c)). Attach the contract or relevant extracts and the payment claim that gave rise to the dispute (s 26(2)(b)). Provide all documentation and submissions relied upon (s 26(2)(c)). Non‑compliance risks dismissal under s 31(2)(a)(ii) or (iia).
Be prepared to provide a deposit or security for costs if requested by the appointed adjudicator or the appointor under s 44(8)-(9).

If you are a principal, comply with retention money and ownership duties.

Hold retention money on trust for the contractor (Sch 1 cl 11). Keep separate records and segregated accounts where appropriate. If retention monies are to be released, do so only in accordance with contract terms and any adjudicator, arbitrator or court determination (Sch 1 cl 11).
Where unfixed goods are in your possession and you fall into insolvency, do not allow goods to become fixtures or pass out of your control without contractor consent; permit reasonable repossession opportunities (Sch 1 cl 10).

If adjudicator determines payment and the principal does not pay, follow enforcement steps.

Obtain a certified copy of the determination from the Building Commissioner (s 43(2)(a)) and prepare an affidavit as to unpaid amounts (s 43(2)(b)). File both in a court of competent jurisdiction to convert the determination into a court order (s 43(3)). Be aware that post‑filing interest ceases to accrue under s 39(4).
Alternatively, if the contractor, consider suspension only after complying with notice requirements: give written notice of intention to suspend at least 3 business days before the date you intend to suspend (s 42(2)(c)-(d)). The suspension may last only until no longer than 3 business days after payment (s 42(3)).

Manage adjudicators, appointors and costs.

If you intend to rely on a particular adjudicator, ensure that person is registered (s 48). Registered adjudicators must publish their rates (s 51(1)); appointors must publish theirs too (s 51(2)). Check published rates before nominating or consenting to an adjudicator.
Be prepared to split adjudication costs equally with other parties (s 44(6)), but also pursue a costs order from the adjudicator if the other party has acted frivolously or vexatiously (s 34(2)-(3)). Remember an adjudicator can require deposits or security (s 44(8)-(9)).

Preserve procedural rights and avoid contracting mistakes.

Avoid inclusion of pay‑if‑paid/pay‑when‑paid clauses and long payment windows , they will be ineffective or read down (ss 9-10). Do not attempt to contract out of the Act (s 53).
If you are a principal negotiating contract terms, make written provisions about variations, payment methods and dispute resolution if you want to displace implied terms; otherwise Schedule 1 implied terms will apply (ss 13-22).

Keep administrative and evidentiary records.

Maintain copies of all payment claims, notices of dispute, payment receipts, adjudication applications and responses, service records, and any communications with the Building Commissioner, adjudicators or appointors. Evidence used in an adjudication is generally inadmissible in later proceedings (s 45(3)), so preserve separate evidentiary records.

Seek specialist advice on insolvency and trust interactions.

Given Sch 1 cl 10’s interplay with insolvency definitions in the Corporations Act and Sch 1 cl 11’s trust treatment, obtain legal advice when principals, contractors or related parties become insolvent. Statutory obligations interact with federal insolvency law, and practical recoveries in liquidation require professional mapping.

Monitor regulatory instruments.

The Governor may prescribe further matters and regulate adjudication practice (s 55). Stay current on regulations, especially those that might add prohibited provisions (s 11) or change procedural requirements and fee caps. The Act allows a maximum rate for adjudicators if prescribed by regulation (s 44(2)(a)(i); s 51(4)).

In short: ensure payment claims and dispute notices meet the Schedule 1 content and timeline requirements; meet adjudication service and deposit rules; monitor business‑day calculations; treat retention monies and ownership issues with the trust and insolvency obligations in mind; and use the filing procedure under s 43 to enforce determinations. Compliance requires coordinated contract drafting, records management, financial planning for deposits and fees, and awareness of the Act’s interaction with insolvency and federal legislation.

Deep Dive

What it does

Current sections