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Queensland’s security for payment legislation – the Building Industry Fairness (Security of Payment) Act 2017

  • August 23, 2025
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After many years of contractors being exhausted financially and delayed by having disputes over payment run through the court system, in 2004 Queensland joined other states in making legislation designed to fast track the determination of claims to payment.  That legislation was then revised in 2017 to the current Building Industry Fairness (Security of Payment) Act 2017.  The security of payment legislation is a statutory regime for builders and subcontractors to utilise to recover monies owing for payment claims for work done under a construction contract by following a process to adjudication. Adjudication is fast and cost effective in comparison to the onerous process of a court, and a “must use” tool for contractors and subcontractors and starts by the making of a “payment claim” which I will discuss briefly today.  A valid payment claim is essential to making a successful adjudication application as an Adjudicator will not be able to decide whether anything must be paid unless the payment claim is valid. The requirements for a valid payment claim under the Act include: A reference date is a date stated in the construction contract that states the date for the making of a progress claim for work done (e.g. 25th day of each month, or last day of the month etc).  If there is no date specified in the construction contract to make a progress claim, the reference date is worked out by applying section 67 of the Act.  The reference date will be the last day of the month in which the work commenced and the last day of each latter month. A payment claim must be served by the party who carried out the construction work on the party who is liable to pay for the construction work under a construction contract.  Proper service of a payment claim is an essential requirement to proceed to an adjudication.  Service of a payment claim must be effected in accordance with section 102 of the Act and/or section 39 of the Acts Interpretation Act 1954.  If a payment claim is not validly served, it will be invalid and consequently an adjudication application to recover payment pursuant to the payment claim will fail. In my next article, I will discuss what is needed to respond when a payment claim is received. Meet The Author! Meet the author of this blog article, Justin Mathews. Over the next several weeks, we will post a series of articles relating to Queensland building and construction matters written by Justin. Justin is a registered Adjudicator in Queensland under the Building Industry Fairness (Security of Payment) Act 2017 and also in the Northern Territory under its security of payment legislation, and an accredited specialist in commercial litigation.  He represents a number of Queensland building contractors and other parties in building and construction disputes both through the adjudication process and in the various state courts of Queensland, New South Wales, and Northern Territory, as well as advice in relation to contractual matters, and QBCC regulatory matters including matters involving the statutory warranty scheme. In these articles Justin will discuss a number of matters of interest to members of the Queensland building and construction industry. For enquiries concerning building matters, Justin can be contacted by email justinm@qbmlaw.com.au or Ph: (07) 5574 0111.

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Basic Estate Planning Essentials

  • August 13, 2025
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Where clients do not have assets in companies or held in trusts, in many cases their estate planning intentions can be dealt with by a binding death nomination (if they have a superannuation interest) and a will, with other useful documents being an enduring power of attorney and an advance health directive. A rough guide to the function of these documents is: Your will: Binding death nomination (“BDN”): Enduring power of attorney: Advance Health Directive: Please contact us if you would like to discuss your estate planning needs. For current pricing on these services, please call Jessica Murray or email jessicam@qbmlaw.com.au

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Telemarketer agreements and door to door sales – the trap of arranging a later meeting

Consumers have a number of rights of termination in relation to unsolicited consumer agreements (arising from telemarketed sales, or door to door sales). An unsolicited consumer agreement is generally (with a number of exceptions) an agreement: For the supply of products or services to a consumer; Where the supplier or salesperson approaches the consumer without the consumer’s invitation; The negotiations for which take place over the telephone, or in person at a location other than the supplier’s premises. The concept is for an unsolicited agreement to be one where the direct contact is initiated by the seller.  If the contact is initiated by the customer (eg by the customer responding to an advertisement or web page, phoning the business, or going to the showroom premises) then usually the resulting agreement would not be unsolicited. A critical aspect of this is that the consumer not “invited” the contact from the supplier. Sometimes suppliers contend that an agreement is not an unsolicited consumer agreement (as a result of which there are no cooling off rights) because they say that their contact was at the invitation of the consumer.  This invitation might be artificially engineered in situations such as the following: A door to door salesperson attends a home uninvited and asks the home owner if they are interested in saving money by installing a solar PV system.  When the home owner says yes, the salesperson says that he has to meet a colleague and will have to come back, would it be ok if they meet at (say) 5pm.  if the owner has said yes, the seller might argue that the consumer invited the contact, as a result of which any agreement reached at the meeting is not an unsolicited consumer agreement; A telemarketer contacts a business offering a service.  If there is any interest, the telemarketer arranges a Zoom or in person meeting for later that day, again, the supplier argues that any agreement arising from the meeting is not an unsolicited consumer agreement because the consumer invited the contact. Because of the contention that the agreement is not unsolicited, the supplier does not include in the contract the required warnings and cooling off provisions, as a result of which the consumer is unaware that they might apply or would have applied. Whether the suppliers would be correct in alleging that agreements reached in those situations are not unsolicited consumer agreements (and accordingly have no cooling off rights) is at least debateable.  But the supplier’s argument would not exist if the arrangement was not made for a second meeting or call. Research is always advisable.  For information on door to door and telemarketing sales, see https://www.accc.gov.au/consumers/buying-products-and-services/telemarketing-and-door-to-door-sales

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QCAT – Consumer/Trader dispute fails because a Real Estate Agent is not a “trader”.

In the recent decision of Quach v GLC Partners Pty Ltd [2025] QCAT 265, a claim made by QCAT as a minor civil dispute against a Real Estate agency was dismissed because the jurisdiction to have claims between a consumer and a trader does not extend to claims against  professionals.  Background QCT provides a convenient and generally economical forum through which consumers can advance claims in respect of goods and services.  These are “Minor Civil Disputes” which include residential tenancy claims, minor debt claims, dividing fence disputes, and consumer/trader disputes.  In the consumer/trader disputes a variety of orders can be made, including for the refund of money or relief against the obligation to pay a bill.  In the subject proceedings, a claim is made against a real estate agency for certain matters.  The Member considered whether QCAT had jurisdiction, noting that in Schedule 3 of the QCAT Act, a consumer is an individual for whom services are supplied for a fee other than in a trade or business carried on by the individual, and a trader is a person who in trade or commerce carries on the business of supplying services other than when acting in the exercise of a discipline that is not ordinarily regarded as within the field of trade or commerce.  The question in this particular matter was whether a real estate agent was “acting in the exercise of a discipline that is not ordinarily regarded as within the field of trade or commerce”.  In the decision, the Member quoted from previous QCAT authority which adopted the meaning of “Profession” as one which “would embrace intellectual activity, or manual activity controlled by the intellectual skill of the operator, whereby services are offered to the public, usually though not inevitably for reward and requiring professional standards of competence, training and ethics, typically reinforced by some form of official accreditation accompanied by evidence of qualification”.  In the decision, the Member observed that the activities of the Real Estate agency were – in this instance – acting in the exercise of a discipline that is not ordinarily regarded as within the field of trade or commerce – ie it was a profession and accordingly – the Real Estate agency was not a “Trader” for the purposes of the QCAT Act.  Similarly, Lawyers, Doctors, Dentists and Valuers are generally not considered Traders for the purpose of a consumer and trader dispute, meaning that claims against them cannot be brought within QCAT if they relate to the services that they have provided. For advice in respect of consumer law matters, please contact Peter Muller at peterm@qbmlaw.com.au

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