Troubleshooting project bank account problems

New laws

The Building Industry Fairness (Security of Payment) and Other Legislation Act 2020 received assent on 23 July 2020.

This Act will replace project bank accounts with a new trust account framework, delivering a more streamlined framework. Read about the new trust account framework.

The following information only applies to project bank accounts for certain government contracts tendered after 1 March 2018 up to 28 February 2021.

Here are the steps you can take to resolve common problems experienced by subcontractors and head contractors in relation to project bank accounts (PBAs).

If you still have a query after reviewing these steps, email securityofpayment@hpw.qld.gov.au.

For subcontractors

Head contractor isn't paying through the PBA

You negotiated different payment terms outside the principal's payment cycle

The head contractor may pay you in accordance with your contract, but all payments must be made via the PBA. If there isn't enough money in the trust account to pay you, the head contractor must top up the trust account by depositing the shortfall amount to pay you when payment is due.

If you suspect you're not being paid from the PBA, notify the QBCC.

Head contractor refuses to release retention amount or other security

It is an offence to not be paid your retention amount or have your security released in line with the terms of your contract. You can make a complaint (PDF, 89KB) to the QBCC.

If you have not been paid your retention amount or had your security released you can investigate possible payment dispute resolution options which may be available to you. These are outlined on the QBCC website.

Head contractor hasn't established a PBA

Not all contracts need a PBA. However, if a PBA is required, the head contractor must tell you before entering the subcontract by giving you a notice of project bank account before entering subcontract form (PDF, 620KB). If the PBA is required after entering into the subcontract, the notice must be provided within 10 business days of the PBA being required.

If you believe the project should have a PBA but doesn't, notify the QBCC.

Head contractor is not meeting their PBA obligations

If the head contractor hasn't provided you with the correct forms or notices in the required timeframe, you can lodge a complaint with the QBCC to investigate.

You must be paid for the work you've completed according to your subcontract and via the PBA. The head contractor can't use principal non-payment as a reason to not fulfil its contractual payment obligations to you. If you haven’t been paid in full by the due date for payment, you can investigate possible payment dispute resolution options which may be available to you such as adjudication.

For head contractors

You didn't establish a PBA in the required time

If you fail to establish a PBA within the required time or notify the principal that you've opened the 3 trust accounts, you may be in breach of legislative requirements.

You should establish the PBA as soon as possible, and contact the principal to explain your situation. The principal is able to pay you prior to the PBA being established, however, you must deposit the amount into the PBA as soon as possible. You must make all payments to subcontractors through the PBA once it is established.

You currently pay subcontractors by cheque

You are unable to pay subcontractors by cheque on a PBA contract. You must pay all subcontractors through the PBA only using payment instructions. However, suppliers are not included in the PBA framework, so cannot be paid through the PBA.

You didn't top up before payment date

If you didn't top up the general trust account before the date for payment in the payment instruction, prepare a new payment instruction and top up the account before the date for payment in the new instruction.

Contact your principal and the relevant subcontractor beneficiaries to explain what's happened as you may be in breach of your obligations under the contract and the BIF Act.

You didn't submit a payment instruction before the payment due date

If you didn't prepare or submit a payment instruction before the payment due date, you need to prepare a payment instruction as soon as possible.

Contact your principal and the relevant subcontractor beneficiaries to explain what's happened.

If you don't meet your payment obligations by the due date for payment, you may be in breach of legislative and contractual obligations.

Principal isn't paying on time

If the principal doesn't pay into the PBA on time, you're still required to pay amounts due to the subcontractor on the due date for payment. You may need to top up the PBA with enough money to meet your payment obligations to the subcontractor(s).

If the principal doesn't pay a payment claim in full on or before the due date for payment, you can apply for adjudication or pursue unpaid amounts via the Queensland Civil and Administrative Tribunal (QCAT) or the courts. Read about the measures available to resolve a dispute.

Subcontractor is a related entity of the head contractor

'Related entities' are subcontractors who are related to the head contractor responsible for the PBA. For example, a related entity could be a family member or related body corporate for a corporation. Find out more about who is a related entity.

The head contractor must notify the QBCC and principal that a subcontractor is a related entity within 5 business days of entering into a subcontract with the related entity. The QBCCs notice of related entity form (PDF, 134KB) must be used to inform the QBCC and principal. There is a penalty for failing to do this.

Further, if the related entity intends to further subcontract part or all of the work (i.e. under a second-tier subcontract), the related entity must also establish a PBA (a second-tier PBA) so the second-tier subcontractors are beneficiaries to the second-tier PBA.

In this situation, the related entity would be bound by the same trustee obligations as the head contractor for the first-tier PBA. Also, the head contractor would take on the same obligations as if they were the principal for the second-tier PBA.

Contact

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