December 19, 2022
The sound of Christmas carols are often a sign that the festive period is imminent, and people start looking forward to spending time with friends and family. However, for those in the construction industry, the sound of Christmas carols instead represents the fast-approaching shutdown period.
In Queensland, the Christmas shutdown period is provided by way of the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (‘BIFA’). It relevantly prescribes that a ‘business day’ does not include any day between 22 and 24 December, 27 and 31 December, and 2 and 10 January. In other words, BIFA’s Christmas closure is from 22 December 2020 to 10 January 2021 (inclusive). This is regardless of if those days are prescribed as a public holiday or not.
Principals and Contractors in the construction industry should therefore be aware that the shutdown period runs between Thursday 22 December 2022 to Tuesday 10 January 2023 (inclusive) in Queensland. This can have practical and commercial impacts on a project, including the preparation, submission, and response of payment claims, and any security of payment steps which a party may be taking.
Impact on Payment Claim Submission
BIFA provides a response to a payment claim, that being the payment schedule, must be given by the period specified in the relevant contract, or within 15 business days of receipt (whichever is earlier).
Hence, if a payment claim was submitted by a Contractor on 21 December 2022, the relevant period for a response will not commence running until 11 January 2022.
The provisions of a contract, which might include reference to a calendar day instead of a business day, will not impact the operation of BIFA and the shutdown period. Relevantly, the case of Allencon Pty Ltd v Palmgrove Holdings Pty Ltd [2022] QDC 90, which was explored in greater detail in the December edition of Projects and Construction Monthly (located here), found that BIFA cannot be limited by the operation of contract provisions when it relates to the time for a payment certificate to be issued during the shutdown period.
In effect, the above confirms that where a contract seeks to limit to operation of BIFA, in these circumstances by way of calculations of time periods over the shutdown period, the clause will not be operative and BIFA will apply. Hence, the time for responding to a payment claim will not run over the shutdown period.
Adjudication
The security of payment and adjudication process in Queensland is governed by BIFA and strict legislative timeframes apply. These timeframes also take into consideration the shutdown period. Hence, whilst an adjudication application could be lodged during this period, the respondent’s timeframe to respond do not commence until 11 January 2021.
Other Jurisdictions
Other states do not offer the same shutdown periods as those seen in Queensland.
Under New South Wales legislation, the closure is from 25 December 2020 to 3 January 2021 (inclusive).
In contrast, Victorian legislation does not provide any such closure, defining ‘business day’ as any day which is not a Saturday, Sunday, or public holiday.
It is important that Principals and Contractors are aware of cross-jurisdictional timeframes to ensure their compliance with local requirements where projects are being undertaken.
If you require any assistance with respect to projects over the Christmas period, please do not hesitate to contact LPC Lawyers.
Contact: Peter Lamont or Ryan Bryett
Email: [email protected] or [email protected]
Phone: (07) 3248 8500
Address: Suite 1, Level 1, 349 Coronation Drive, Milton Qld 4064
Postal Address: PO Box 1133, Milton Qld 4064