Building & Construction Dispute Lawyers

Marino Law boasts a wealth of expertise in navigating a diverse array of building and construction disputes, ensuring clients receive comprehensive legal support tailored to their specific needs. Our seasoned team is well-versed in handling a wide spectrum of issues that may arise within the building and construction industry, including but not limited to:

• matters under the Building Industry Fairness (Security of Payment) Act 2017 (Qld);
• matters relating to the Queensland Building and Construction Commission (formerly the Queensland Building Services Authority QBSA);
• disputes relating to the construction of homes;
• construction of commercial building disputes and civil infrastructure disputes;
• disputes relating to variations, extensions of time, retentions, and liquidated damages;
• disputes between subcontractors and principal contractors;
• contract review;
• mediations;
• Court and Tribunal appearances; and
• debt recovery.

REAL RELATIONSHIPS. PROVEN RESULTS.

Gold Coast’s Leading Construction & Building Dispute Lawyers

Book an appointment with our experienced team of Building and Construction Dispute Lawyers

• Gain certainty from multi-award winning, highly-qualified team of legal professionals
• Afford premium legal services with Marino Law’s cost-effective rates
• Access practical solutions, strategic legal advice & a track record of success
• Recognised as leaders in our specialised areas of practice in building and construction law

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Building Dispute Resolution Process

Obtaining legal advice early on for disputes in building and construction matters is vital. The building dispute lawyers for the parties involved are required to review all facts and circumstances to determine exactly why the dispute exists. A building and construction lawyer or solicitor will try to help clients avoid litigation wherever possible. A mediation attempt should be made to bring the parties into the settlement process if a dispute arises. Often a dispute can be resolved informally through discussions facilitated by a lawyer or solicitor to reach a mutually acceptable resolution.

Our Process

1. Understand your personal and business objectives
2. Identify the legal issues requiring attention
3. Strategise to identify the solution and chart a way forward
4. Execute strategy to achieve desired outcome

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Building Industry Fairness Act

Under the BIF Act, a person entitled to a progress payment (claimant) may serve a payment claim on the party liable to pay the amount (respondent).

The effect of submitting a payment claim is that the respondent must either:

• respond to the payment claim by providing a payment schedule, indicating the amount of the payment (if any) they propose to make within the prescribed period; or
• pay the whole of the claimed amount on or before the due date for the progress payment to which the payment claim relates.

The BIF Act contains specific requirements as to the form, content and timing of service of either a payment claim or payment schedule. Failure to adhere to the strict timeframes and requirements of the BIF Act could mean that you are forced to pay the full amount on a payment claim without the opportunity to respond, defend or appeal.

The BIF Act introduces a few notable changes to the previous regime. These include:

• the claimant does not need to notify the respondent that it intends to proceed to adjudication;
• there is no ability to issue an adjudication response if the dispute proceeds to adjudication and no payment schedule was issued, nor can the respondent raise new reasons for withholding payment that were not included in the payment schedule;
• there is no longer any need to endorse the payment claim with the governing legislation i.e., ‘BIF Act’. A written document bearing the word ‘invoice’ is taken to satisfy the BIF Act;
• if a construction contract is terminated, and the contract does not provide for, or purports to prevent a reference date surviving termination, the final reference date for the contract is the date the contract is terminated;
• pecuniary penalties apply, and disciplinary action can be taken under the Queensland Building and Construction Commission Act 1991 (QBCC Act) for a failure to give a payment schedule as required under the BIF Act; and
• timeframes for submitting a payment schedule have been extended to whichever of the following periods ends first being either; the period, if any, worked out under the construction contract, within which the respondent must give the payment schedule or, 15 business days after the payment claim is given to the respondent.

Subcontractors’ Charges

Compliance with the above is only required if the retained amount is sufficient to satisfy the claim. Payment also discharges the superior contractor from liability relating to the amount paid and of the costs of any court proceeding relating to the amount paid.

Subcontractors’ Charges are extremely powerful as they allow sub-contractors to secure moneys owed to it by a head/superior contractor from the head/superior contractor’s principal (“employer”).

The effect of the charge is to take moneys due from the employer to the head/superior contractor out of circulation, to be earmarked for payment to the sub-contractor. As you can appreciate, the subcontractor does not have a contract with the employer, but the effect is that the subcontractor may get the money directly from the employer in certain circumstances.

The employer is obliged to retain the charge moneys, and if they fail to do so they are personally liable to pay its claim, not exceeding the amount that the employer was obliged to retain. The sub-contractor lodging the charge (and any other subcontractors) become secured creditors for these monies retained by the employer, even against a liquidator of a head contractor.

It can have a devastating effect on the head contractor’s cash flow, so the sub-contractor must have a justifiable basis for lodging a sub-contractor’s charge. If a subcontractor vexatiously or without reasonable grounds gives a Notice of Claim, the sub-contractor is liable to pay to a person prejudicially affected by the claim an amount of damages the person incurs because of the claim. The damages must be decided by a court on an application by the person prejudicially affected.

The sub-contractor does not always receive all the monies it claims, particularly in cases where the head contractor has already gone or later goes into liquidation or the amount owed to the contractor is less than the amount of the sub-contractor’s claim. However, the sub-contractor benefits by at least getting some monies which otherwise are likely to be unavailable to them in liquidation.

Given the complexities of building and construction disputes, it is imperative you seek legal advice to ensure you seize on the opportunities and benefits the BIF Act affords sub-contractors.

Construction And Building Disputes – Frequently Asked Questions

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