Security of payment in New South Wales and Victoria

Description

Full Title Copyright Foreword Publisher’s Note Table of Cases Table of Contents Chapter 1 Introduction: Security of Payment Across Australia Queensland Security of Payment Legislation Western Australia and Northern Territory Security of Payment Legislation South Australian Security of Payment Legislation Australian Capital Territory Security of Payment Legislation Tasmanian Security of Payment Legislation Chapter 2 Comparison Table of New South Wales and Victorian Security of Payment Legislation Chapter 3 Annotated New South Wales and Victorian Security of Payment Legislation NSW Act s 1: Name of Act Victorian Act: Name of Act (as applying to construction contracts entered into prior to 30/3/07) Victorian Act: Name of Act (as applying to construction contracts entered into on or after 30/3/07) NSW Act s 2: Commencement Victorian Act s 2: Commencement (as applying to construction contract sentered into prior to 30/3/07) Victorian Act s 2: Commencement (as applying to construction contract sentered into on or after 30/3/07) NSW Act s 3: Object of Act Victorian Act s 3: Object of Act (as applying to construction contract sentered into prior to 30/3/07) Victorian Act s 3: Object of Act (as applying to construction contract sentered into on or after 30/3/07) NSW Act s 4: Definitions Victorian Act s 4: Definitions (as applying to construction contract sentered into prior to 30/3/07) Victorian Act s 4: Definitions (as applying to construction contract sentered into on or after 30/3/07) 30 NSW Act s 5: Construction work Victorian Act s 5: Construction work (as applying to construction contract sentered into prior to 30/3/07) Victorian Act s 5: Construction work (as applying to construction contract sentered into on or after 30/3/07) NSW Act s 6: Related goods and services Victorian Act s 6: Related goods and services (as applying to construction contracts entered into prior to 30/3/07) Victorian Act s 6: Related goods and services (as applying to construction contracts entered into on or after 30/3/07) NSW Act s 7: Application of Act Victorian Act s 7: Application of Act (as applying to construction contract sentered into prior to 30/3/07) Victorian Act s 7: Application of Act (as applying to construction contract sentered into on or after 30/3/07) NSW Act s 8: Rights to progress payments Victorian Act s 9: Rights to progress payments (as applying to construction contracts entered into prior to 30/3/07) Victorian Act s 9: Rights to progress payments (as applying to construction contracts entered into on or after 30/3/07) NSW Act s 9: Amount of progress payment Victorian Act s 10: Amount of progress payment (as applying to construction contracts entered into prior to 30/3/07) Victorian Act ss 10, 10A, 10B: Amount of progress payment (as applying to construction contracts entered into on or after 30/3/07) NSW Act s 10: Valuation Victorian Act s 11: Valuation (as applying to construction contracts entered into prior to 30/3/07) Victorian Act s 11: Valuation (as applying to construction contracts entered into on or after 30/3/07) NSW Act s 11: Due date for payment Victorian Act s 12: Due date for payment (as applying to construction contracts entered into prior to 30/3/07) Victorian Act s 12: Due date for payment (as applying to construction contracts entered into on or after 30/3/07) NSW Act s 12: Pay when paid Victorian Act s 13: Pay when paid (as applying to construction contract sentered into prior to 30/3/07) Victorian Act s 13: Pay when paid (as applying to construction contract sentered into on or after 30/3/07) NSW Act s 13: Payment claims Victorian Act s 14: Payment claims (as applying to construction contract sentered into prior to 30/3/07) Victorian Act s 14: Payment claims (as applying to construction contract sentered into on or after 30/3/07) NSW Act s 14: Payment schedules Victorian Act s 15: Payment schedules (as applying to construction contracts entered into prior to 30/3/07) Victorian Act s 15: Payment schedules (as applying to construction contracts entered into on or after 30/3/07) NSW Act s 15: Consequences of not paying claimantwhere no payment schedule Victorian Act s 16: Consequences of not paying claimant where no payment schedule (as applying to construction contracts entered into priorto 30/3/07) Victorian Act s 16: Consequences of not paying claimant where no payment schedule (as applying to construction contracts entered intoon or after 30/3/07) NSW Act s 16: Consequences of not paying in accordancewith payment schedule Victorian Act s 17: Consequences of not paying claimant in accordance with payment schedule (as applying to construction contracts entered into prior to 30/3/07) Victorian Act s 17: Consequences of not paying claimant in accordance with payment schedule (as applying to construction contract sentered into on or after 30/3/07) NSW Act s 17: Adjudication applications Victorian Act s 18: Adjudication applications (as applying to construction contracts entered into prior to 30/3/07) Victorian Act s 18: Adjudication applications (as applying to construction contracts entered into on or after 30/3/07) NSW Act s 18: Eligibility criteria for adjudicators Victorian Act s 19: Eligibility criteria for adjudicators (as applying to construction contracts entered into prior to 30/3/07) Victorian Act s 19: Eligibility criteria for adjudicators (as applying to construction contracts entered into on or after 30/3/07) 138 NSW Act s 19: Adjudicator’s appointment Victorian Act s 20: Appointment of adjudicator (as applying to construction contracts entered into prior to 30/3/07) Victorian Act s 20: Appointment of adjudicator (as applying to construction contracts entered into on or after 30/3/07) NSW Act s 20: Adjudication responses Victorian Act s 21: Adjudication responses (as applying to construction contracts entered into prior to 30/3/07) Victorian Act s 21: Adjudication responses (as applying to construction contracts entered into on or after 30/3/07) NSW Act s 21: Adjudication procedures Victorian Act s 22: Adjudication procedures (as applying to construction contracts entered into prior to 30/3/07) Victorian Act s 22: Adjudication procedures (as applying to construction contracts entered into on or after 30/3/07) NSW Act s 22: Adjudicator’s determination Victorian Act ss 23, 24: Adjudicator’s determination (as applying to construction contracts entered into prior to 30/3/07) Victorian Act ss 23, 23A, 24: Adjudicator’s determination (as applying to construction contracts entered into on or after 30/3/07) NSW Act s 23: Respondent required to pay adjudicated amount Victorian Act s 25: Obligation to pay adjudicated amount (as applying to construction contracts entered into prior to 30/3/07) Victorian Act ss 28M, 28N: Obligation to pay adjudicated amount (as applying to construction contracts entered into on or after 30/3/07) NSW Act s 24: Consequences of not paying adjudicated amount Victorian Act s 27: Consequences of not complying with adjudicator’s determination (as applying to construction contracts entered intoprior to 30/3/07) Victorian Act ss 28O, 28P, 28Q: Consequences of not complying with adjudicator’s determination (as applying to construction contracts entered into on or after 30/3/07) NSW Act s 25: Filing adjudication certificate as judgment debt andchallenging adjudicator’s determinations Victorian Act: Filing adjudication certificate as judgment debt: challenging adjudicator’s determinations (as applying to construction contract sentered into prior to 30/3/07) Victorian Act s 28R: Filing adjudication certificate as judgment debt: challenging adjudicator’s determinations (as applying to construction contracts entered into on or after 30/3/07) 208 Victorian Act only (ss 28A – 28L): Review of adjudication (as applying to construction contracts entered into on or after 30/3/07) 219 NSW Act s 26: New adjudication application NSW Act only (ss 26A – 26F): Division 2A claimant’s rights againstprincipal contractor Victorian Act s 28: New adjudication application (as applying to construction contracts entered into prior to 30/3/07) Victorian Act s 28: New adjudication application (as applying to construction contracts entered into on or after 30/3/07) NSW Act s 27: Right to suspend work Victorian Act s 29: Right to suspend work (as applying to construction contracts entered into prior to 30/3/07) Victorian Act s 29: Right to suspend work (as applying to construction contracts entered into on or after 30/3/07) NSW Act s 28: Authorised nominating authorities Victorian Act ss 42, 43, 44: Authorised nominating authorities (as applying to construction contracts entered into prior to 30/3/07) Victorian Act ss 42, 43, 43A – 43C, 44: Authorised nominating authorities (as applying to construction contracts entered into on or after 30/3/07) NSW Act s 29: Adjudicator’s fees Victorian Act s 45: Adjudicator’s fees (as applying to construction contracts entered into prior to 30/3/07) Victorian Act s 45: Adjudicator’s fees (as applying to construction contracts entered into on or after 30/3/07) NSW Act s 30: Liability of adjudicators and authorised nominating authorities Victorian Act s 46: Liability of adjudicator (as applying to construction contracts entered into prior to 30/3/07) Victorian Act s 46: Liability of adjudicator (as applying to construction contracts entered into on or after 30/3/07) NSW Act s 31: Notices and service Victorian Act s 50: Service of notices (as applying to construction contracts entered into prior to 30/3/07) Victorian Act s 50: Service of notices (as applying to construction contracts entered into on or after 30/3/07) NSW Act s 32: Effect on civil proceedings 253 Victorian Act s 47: Effect on civil proceedings (as applying to construction contracts entered into prior to 30/3/07) Victorian Act s 47: Effect on civil proceedings (as applying to construction contracts entered into on or after 30/3/07) NSW Act s 33: Act binds the Crown Victorian Act s 8: Act binds the Crown (as applying to construction contracts entered into prior to 30/3/07) Victorian Act s 8: Act binds the Crown (as applying to construction contracts entered into on or after 30/3/07) NSW Act s 34: No contracting Out Victorian Act s 48: No contracting out (as applying to construction contracts entered into prior to 30/3/07) Victorian Act s 48: No contracting out (as applying to construction contracts entered into on or after 30/3/07) NSW Act s 35: Regulations Victorian Act s 52: Regulations (as applying to construction contract sentered into prior to 30/3/07) Victorian Act s 52: Regulations (as applying to construction contract sentered into on or after 30/3/07) NSW Act s 37: Savings and transitional provisions Victorian Act: Savings and transitional provisions (as applying to construction contracts entered into prior to 30/3/07) Victorian Act s 53: Transitional provision (as applying to construction contracts entered into on or after 30/3/07) NSW Act s 38: Review of Act Victorian Act: Review of Act (as applying to contracts entered into prior to 30/3/07) Victorian Act: Review of Act (as applying to contracts entered into onor after 30/3/07) NSW Act: Schedule 2 Victorian Act only (ss 30 – 41): Recovery from principal (as applying to contracts entered into prior to 30/3/07) Victorian Act only (ss 29A, 30 – 40): Recovery from principal (as applying to contracts entered into on or after 30/3/07) Victorian Act: Other sections not in the NSW Act (as applying to contract sentered into prior to 30/3/07) Victorian Act: Other sections not in the NSW Act (as applying to contract sentered into on or after 30/3/07) 281 Chapter 4 Commonwealth Legislation Considered in the Context of the Security of Payment Legislation Australian Constitution Corporations Act Bankruptcy Act 1966 (Cth) Trade Practices Act 1974/Competition and Consumer Act 2010 (Cth) Chapter 5 Other New South Wales Legislation Considered in the Context of the New South Wales Security of Payment Legislation Commercial Arbitration Act 2010 (NSW) Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) Home Building Act 1989 (NSW) Supreme Court Act 1970 (NSW) Civil Procedure Act 2005 (NSW) and Uniform Civil Procedure Rules 2005 District Court Act 1973 (NSW) Interpretation Act 1987 (NSW) Evidence Act 1995 (NSW) Electronic Transactions Act 2000 (NSW) Chapter 6 Other Victorian Legislation Considered in the Context of the Victorian Security of Payment Legislation Supreme Court and County Court and Rules County Court Act 1958 (Vic) Domestic Building Contracts Act 1995 Fair Trading Act 1999 (Vic) Magistrates’ Court Civil Procedure Rules Evidence Act 2008 (Vic) Chapter 7 Other Principles from Decided Cases in Context of Security of Payment Legislation Allowing interlocutory determinations to be litigated Principles to be applied in summary judgment application Payment by respondent to subcontractor of claimant in discharge of payment obligation to claimant Can an amending Act be taken into account in interpretation of the prior legislation? Doctrine of severance and the Act Allowing issue to be raised in Court of Appeal even though not raised before adjudicator or single judge Leave to withdraw an admission as to service Appendix Index