Building Industry Fairness (Security Of Payment) Act (BIFA)

Building Industry Fairness (Security of Payment) Act 2017 (BIFA) replaces the Building and Construction Industry Payments Act 2004 (“BCIPA”).

BIFA will apply to payment claims served on or after 17 December 2018 (it does not matter when the contract was entered into). A payment claim served before 17 December 2018 will still be governed by BCIPA.

The Major Differences Between the BIFA Regime and the BCIPA Regime

1. Under BIFA there will be no need for the payment claim to include a notation that it is a payment claim under BIFA. A demand for payment, for example, an invoice, is enough.
2. Under BIFA there will be no requirement to give a second chance 5-day notice before taking action in the absence of a payment schedule.
3. The claimant will have more time to file an adjudication application.
4. There is no mechanism under any circumstances for a respondent to rely upon reasons for non-payment that are not included in a payment schedule.
5. The date of termination of the contract will give rise to a new reference date.
6. Note, it is also an offence under BIFA to neither pay nor deliver a payment schedule in response to a payment claim.

Under the new regime, there may be a significant risk of missing the need for a respondent to deliver a payment schedule. The payment claim will not make it obvious that it is a payment claim and there is no longer a second chance to deliver a payment schedule.

Click here for further details of and differences between the regimes.

Please contact partner, Scott Eustace for further details on eustaces@hickeylawyers.com.au.