Building and Construction Industry Security of Payment Regulations 2023 (Vic)

Version No. 001

Building and Construction Industry Security of Payment Regulations 2023

S.R. No. 34/2023

Version as at

27 May 2023

TABLE OF PROVISIONS

Regulation  Page

1Objective

2Authorising provision

3Commencement

4Revocation

5Definition

6Notice of intention to exercise lien

7Notice of claim

8Debt certificate

9Discharge notice

10Notice of names of persons from whom claimant may recover

Schedule 1—Forms

═════════════

Endnotes

1      General information

2      Table of Amendments

3      Explanatory details

Version No. 001

Building and Construction Industry Security of Payment Regulations 2023

S.R. No. 34/2023

Version as at

27 May 2023

1Objective

The objective of these Regulations is to prescribe forms for the purposes of the Building and Construction Industry Security of Payment Act 2002.

2Authorising provision

These Regulations are made under section 52 of the Building and Construction Industry Security of Payment Act 2002.

3Commencement

These Regulations come into operation on 27 May 2023.

4Revocation

The Building and Construction Industry Security of Payment Regulations 2013[1] are revoked.

5Definition

In these Regulations, the Act means the Building and Construction Industry Security of Payment Act 2002.

6Notice of intention to exercise lien

For the purposes of section 12A of the Act, the prescribed form of a notice of intention to exercise a lien is Form 1 in Schedule 1.

7Notice of claim

For the purposes of section 32(2) of the Act, the prescribed form of a notice of claim is Form 2 in Schedule 1.

8Debt certificate

For the purposes of section 33(2) of the Act, the prescribed form of a debt certificate is Form 3 in Schedule 1.

9Discharge notice

For the purposes of section 40(2) of the Act, the prescribed form of a discharge notice is Form 4 in Schedule 1.

10Notice of names of persons from whom claimant may recover

For the purposes of section 41(1) of the Act, the prescribed form of a notice is Form 5 in Schedule 1.

SCHEDULE 1—FORMS

FORM 1

Regulation 6

Building and Construction Industry Security of Payment Regulations 2023

NOTICE OF INTENTION TO EXERCISE LIEN

Section 12A(1) of the Building and Construction Industry Security of Payment Act 2002

To: [name and address of ordinary place of business of respondent]

Under section 12(1) of the Building and Construction Industry Security of Payment Act 2002 (the Act), a progress payment became due and payable to me by you under the construction contract between you and me dated [insert date and other information identifying the construction contract].

The progress payment became due and payable on [insert date] *in accordance with the terms of the construction contract/*because 10 business days have passed since [insert date of service] being the date on which I served a payment claim on you.

The progress payment is in respect of the following *construction work carried out/*related goods and services supplied by me under the construction contract:

[insert details of construction work, including the time and place the work was carried out, OR details of related goods and services supplied, including the time and place they were supplied, OR details of both]

I supplied the following *unfixed plant/*materials in connection with carrying out the construction work under the construction contract:

[clearly identify the unfixed plant or materials to which this notice refers]

At the date of this notice, I have not received the progress payment. Accordingly, I intend to exercise a lien in respect of the unpaid amount of the progress payment over the *unfixed plant/*materials listed above.

The lien will be extinguished when I receive the progress payment.

Dated:

Signature of claimant:

[Print name and address of ordinary place of business of claimant]

*delete whichever is not applicable

FORM 2

Regulation 7

Building and Construction Industry Security of Payment Regulations 2023

NOTICE OF CLAIM

Section 32(2) of the Building and Construction Industry Security of Payment Act 2002

To: [name and address of ordinary place of business of principal]

An *adjudicator/*review adjudicator has determined that an adjudicated amount is payable by [insert name and address of ordinary place of business of respondent] (the respondent) to me, in respect of a construction contract dated [insert relevant date of contract] between the respondent and me.  The adjudicated amount is in respect of:

[insert details of construction work, including the time and place the work was carried out, OR details of related goods and services supplied, including the time and place they were supplied, OR details of both]

A debt certificate has been issued under section 33 of the Building and Construction Industry Security of Payment Act 2002 (the Act) by the [insert name of Court] dated [insert date certificate was issued]. A copy of the debt certificate is attached.

Unless, on your application, a court grants a stay of payments under section 37 of the Act, section 35 of the Act provides that, after this notice of claim is served on you, you are required to pay me the amount you owe to the respondent under a related contract with the respondent. The amount you are required to pay me is set out in the attached debt certificate.

You are required to pay this amount by making payments to me as they become payable under the related contract with the respondent

(see section 35 of the Act).

If you fail to make any payment in accordance with section 35 of the Act, I am entitled under section 38 of the Act to sue you and recover the debt.

Dated:

Signature of claimant:

[Print name and address of ordinary place of business of claimant]

*delete whichever is not applicable

(See attached debt certificate)

FORM 3

Regulation 8

Building and Construction Industry Security of Payment Regulations 2023

DEBT CERTIFICATE

Section 33(2) of the Building and Construction Industry Security of Payment Act 2002

IN THE [name of Court] of VICTORIA

AT [insert place]

In proceedings between:

[name of claimant]  ("Claimant")

of [address of ordinary place of business of claimant]

and

[name of respondent]  ("Respondent")

of [address of ordinary place of business of respondent]

ORDER

On the application of the Claimant under section 33 of the Building and Construction Industry Security of Payment Act 2002, judgment having been *given/*entered in these proceedings on [insert date of judgment] for the recovery of [insert adjudicated amount], being an adjudicated amount, IT IS CERTIFIED that the amount of [insert judgment amount] is a debt owed by the Respondent to the Claimant.

Date of issue: [insert relevant date]

[Signature of relevant court officer]

[Court seal]

*delete whichever is not applicable

FORM 4

Regulation 9

Building and Construction Industry Security of Payment Regulations 2023

DISCHARGE NOTICE

Section 40(2) of the Building and Construction Industry Security of Payment Act 2002

To: [name and address of ordinary place of business of *principal/*respondent]

For the purposes of section 40(2) of the Building and Construction Industry Security of Payment Act 2002 (the Act), I acknowledge your payment of $                 to me as *partial/*full discharge of the amount owed to me specified in the debt certificate issued by the [insert name of Court] under section 33 of the Act on [insert date debt certificate issued].  A copy of the debt certificate is attached.

Dated:

Signature of claimant:

[Print name and address of ordinary place of business of claimant]

*delete whichever is not applicable

(See attached debt certificate)

FORM 5

Regulation 10

Building and Construction Industry Security of Payment Regulations 2023

NOTICE OF PERSON FROM WHOM CLAIMANT MAY RECOVER

Section 41(1) of the Building and Construction Industry Security of Payment Act 2002

To: [name and address of ordinary place of business of claimant]

For the purposes of section 41(1) of the Building and Construction Industry Security of Payment Act 2002 (the Act), in response to your demand of [insert date of demand] for this notice, I notify you that, under a contract with the following *person/*persons:

[insert name(s) of person(s)]

I have *carried out the following construction work/*supplied the following related goods and services:

[insert details of construction work, including the time and place the work was carried out, OR details of the goods and services, including the time and place they were supplied, OR details of both]

I provide this notice in the knowledge that, if I give it knowing that it is false or misleading in a material particular, I am guilty of an offence and liable to a penalty under section 41(2) of the Act.

Dated:

Signature of respondent:

[Print name and address of ordinary place of business of respondent]

*delete whichever is not applicable

═════════════

ENDNOTES

1   General information

See for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.

The Building and Construction Industry Security of Payment Regulations 2023, S.R. No. 34/2023 were made on 23 May 2023 by the Governor in Council under section 52 of the Building and Construction Industry Security of Payment Act 2002, No. 15/2002 and came into operation on 27 May 2023: regulation 3.

The Building and Construction Industry Security of Payment Regulations 2023 will sunset 10 years after the day of making on 23 May 2033 (see section 5 of the Subordinate Legislation Act 1994).

INTERPRETATION OF LEGISLATION ACT 1984 (ILA)

Style changes

Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.

References to ILA s. 39B

Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided regulation, rule or clause of a Schedule is amended by the insertion of one or more subregulations, subrules or subclauses the original regulation, rule or clause becomes subregulation, subrule or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original regulation, rule or clause.

Interpretation

As from 1 January 2001, amendments to section 36 of the ILA have the following effects:

•     Headings

All headings included in a Statutory Rule which is made on or after
1 January 2001 form part of that Statutory Rule.  Any heading inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, forms part of that Statutory Rule.
This includes headings to Parts, Divisions or Subdivisions in a Schedule; Orders; Parts into which an Order is divided; clauses; regulations; rules; items; tables; columns; examples; diagrams; notes or forms. 
See section 36(1A)(2A)(2B).

•     Examples, diagrams or notes

All examples, diagrams or notes included in a Statutory Rule which is made on or after 1 January 2001 form part of that Statutory Rule.  Any examples, diagrams or notes inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, form part of that Statutory Rule.  See section 36(3A).

•     Punctuation

All punctuation included in a Statutory Rule which is made on or after
1 January 2001 forms part of that Statutory Rule.  Any punctuation inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, forms part of that Statutory Rule.
See section 36(3B).

•     Provision numbers

All provision numbers included in a Statutory Rule form part of that Statutory Rule, whether inserted in the Statutory Rule before, on or after
1 January 2001.  Provision numbers include regulation numbers, rule numbers, subregulation numbers, subrule numbers, paragraphs and subparagraphs.  See section 36(3C).

•     Location of "legislative items"

A "legislative item" is a penalty, an example or a note.  As from 13 October 2004, a legislative item relating to a provision of a Statutory Rule is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision.  For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision.  See section 36B.

•     Other material

Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of a Statutory Rule.  See section 36(3)(3D)(3E).

2   Table of Amendments

There are no amendments made to the Building and Construction Industry Security of Payment Regulations 2023 by statutory rules, subordinate instruments and Acts.

3   Explanatory details

[1] Reg. 4: S.R. No. 56/2013.