1Short title
This Act is the Construction Contracts (Former Provisions) Act 2004.
[Section 1 amended: No. 4 of 2021 s. 136.]
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Bill homepageThis Act is the Construction Contracts (Former Provisions) Act 2004.
[Section 1 amended: No. 4 of 2021 s. 136.]
This Act comes into operation on a day fixed by proclamation.
Different days may be fixed under subsection (1) for different provisions.
In this Act, unless the contrary intention appears —
adjudication means the adjudication of a payment dispute in accordance with Part 3;
applicant, in relation to an adjudication, means the person who, under section 26, makes the application for the adjudication;
appointed adjudicator, in relation to a payment dispute, means the registered adjudicator who, having been appointed under Part 3 to adjudicate the dispute, has been served with the application for adjudication;
Building Commissioner means the officer referred to in the Building Services (Complaint Resolution and Administration) Act 2011 section 85;
business day means a day other than —
a Saturday, Sunday or public holiday; or
a day in the period beginning on 25 December in a year and ending on 7 January in the following year;
construction contract means a contract or other agreement, whether in writing or not, under which a person (the contractor) has one or more of these obligations —
to carry out construction work;
to supply to the site where construction work is being carried out any goods that are related to construction work by virtue of section 5(1);
to provide, on or off the site where construction work is being carried out, professional services that are related to the construction work by virtue of section 5(2);
to provide, on the site where construction work is being carried out, on‑site services that are related to the construction work by virtue of section 5(3)(b);
construction work has the meaning given to that term in section 4;
contractor has the meaning given by the definition of construction contract;
costs of an adjudication has the meaning given to that term in section 44;
determination means a determination, made on an adjudication under Part 3, of the merits of a payment dispute;
obligations, in relation to a contractor, means those of the obligations described in the definition of construction contract that the contractor has under the construction contract;
party, in relation to an adjudication, means the applicant and any person on whom an application for the adjudication is served;
party, in relation to a construction contract, means a party to the contract;
payment claim —
means a claim made under a construction contract —
by the contractor to the principal for payment of an amount in relation to the performance by the contractor of its obligations under the contract; or
by the principal to the contractor for payment of an amount in relation to the performance or non‑performance by the contractor of its obligations under the contract;
and
includes a payment claim that includes matters covered by a previous payment claim;
payment dispute has the meaning given to that term in section 6;
prescribed appointor means a person prescribed as such by the regulations;
principal, in relation to a construction contract, means the party to whom the contractor is bound under the contract;
registered adjudicator means an individual registered as such under section 48.
[Section 3 amended: No. 16 of 2011 s. 128(2)‑(4); No. 55 of 2016 s. 4.]
In this section —
civil works includes —
a road, railway, tramway, aircraft runway, canal, waterway, harbour, port or marina; and
a line or cable for electricity or telecommunications; and
a pipeline for water, gas, oil, sewage or other material; and
a path, pavement, ramp, tunnel, slipway, dam, well, aqueduct, drain, levee, seawall or retaining wall; and
any works, apparatus, fittings, machinery or plant associated with any works referred to in paragraph (a), (b), (c) or (d);
site in WA means a site in Western Australia, whether on land or off‑shore.
In this Act —
construction work means any of the following work on a site in WA —
reclaiming, draining, or preventing the subsidence, movement or erosion of, land;
installing, altering, repairing, restoring, maintaining, extending, dismantling, demolishing, or removing, any works, apparatus, fittings, machinery, or plant, associated with any work referred to in paragraph (a);
constructing the whole or a part of any civil works, or a building or structure, that forms or will form, whether permanently or not and whether in WA or not, part of land or the sea bed whether above or below it;
fixing or installing on or in any thing referred to in paragraph (c) any fittings forming, or to form, whether permanently or not, part of the thing, including —
fittings for electricity, gas, water, fuel oil, air, sanitation, irrigation, telecommunications, air‑conditioning, heating, ventilation, fire protection, cleaning, the security of the thing, and the safety of people; and
lifts, escalators, insulation, furniture and furnishings;
altering, repairing, restoring, maintaining, extending, dismantling, demolishing or removing any thing referred to in paragraph (c) or any fittings described in paragraph (d) that form part of that thing;
any work that is preparatory to, necessary for, an integral part of, or for the completion of, any work referred to in paragraph (a), (b), (c), (d) or (e), including —
site or earth works, excavating, earthmoving, tunnelling or boring; and
laying foundations; and
erecting, maintaining or dismantling temporary works, a temporary building, or a temporary structure including a crane or other lifting equipment, and scaffolding; and
cleaning, painting, decorating or treating any surface; and
site restoration and landscaping;
any work that is prescribed by regulations to be construction work for the purposes of this Act.
Despite subsection (2) construction work does not include any of the following work on a site in WA —
drilling for the purposes of discovering or extracting oil or natural gas, whether on land or not;
constructing a shaft, pit or quarry, or drilling, for the purposes of discovering or extracting any mineral bearing or other substance;
fabricating or assembling items of plant used for extracting or processing oil, natural gas or any derivative of natural gas, or any mineral bearing or other substance;
[(d) deleted]
work prescribed by the regulations not to be construction work for the purposes of this Act.
In this Act —
construction work does not include constructing the whole or part of any watercraft.
[Section 4 amended: No. 55 of 2016 s. 5.]
For the purposes of this Act, goods are related to construction work if they are —
materials or components (whether pre‑fabricated or not) that will form part of any thing referred to in section 4(2)(b) or 4(2)(c) or of any fittings referred to in section 4(2)(d); or
any fittings referred to in section 4(2)(d) (whether pre‑fabricated or not); or
plant or materials (whether supplied by sale, hire or otherwise) for use in connection with the carrying out of the construction work at the site of the construction work; or
goods prescribed by the regulations to be related to construction work for the purposes of this Act.
For the purposes of this Act, professional services are related to construction work if they are —
services that are provided by a profession and that relate directly to construction work or to assessing its feasibility (whether or not it proceeds) —
including surveying, planning, costing, testing, architectural, design, plan drafting, engineering, quantity surveying, and project management, services; but
not including accounting, financial, or legal, services;
or
services that are provided by a profession that are prescribed by the regulations to be professional services related to construction work for the purposes of this Act.
For the purposes of this Act, on‑site services —
are services other than professional services referred to in subsection (2); and
are related to construction work if they are —
services that relate directly to construction work, including the provision of labour to carry out construction work; or
services prescribed by the regulations to be on‑site services related to construction work for the purposes of this Act.
The regulations may prescribe goods, professional services or on‑site services that are not related to construction work for the purposes of this Act.
For the purposes of this Act, a payment dispute arises if —
a payment claim is rejected or wholly or partly disputed; or
by the time when the amount claimed in a payment claim is due to be paid under the contract, the amount has not been paid in full; or
by the time when any money retained by a party under the contract is due to be paid under the contract, the money has not been paid; or
by the time when any security held by a party under the contract is due to be returned under the contract, the security has not been returned.
Despite subsection (1), a payment dispute does not arise under subsection (1)(aa) or (a) to the extent to which the payment claim includes matters that were the subject of an application for adjudication that has been dismissed or determined under section 31(2).
If a payment dispute arises under both subsection (1)(aa) and (a) in relation to a payment claim then, for the purposes of this Act, the dispute arises on the earlier of the 2 occurrences.
[Section 6 amended: No. 55 of 2016 s. 6.]
This Act applies to a construction contract entered into after this Act comes into operation and before the Building and Construction Industry (Security of Payment) Act 2021 section 22 comes into operation.
This Act applies to a construction contract —
irrespective of whether it is written or oral or partly written and partly oral; and
irrespective of where it is entered into; and
irrespective of whether it is expressed to be governed by the law of a place other than Western Australia.
This Act does not apply to a construction contract to the extent to which it contains provisions under which a party is bound to carry out construction work, or to supply goods or services that are related to construction work, as an employee (as defined in the Industrial Relations Act 1979 section 7) of the party for whom the work is to be carried out or to whom the goods or services are to be supplied.
This Act, or a provision of this Act, does not apply to a construction contract, or a class of construction contracts, prescribed by the regulations as a contract or class of contracts to which this Act, or that provision, does not apply.
[Section 7 amended: No. 4 of 2021 s. 137.]
This Act binds the Crown.
A provision in a construction contract has no effect if it purports to make the liability of a party (A) to pay money under the contract to another party contingent, whether directly or indirectly, on A being paid money by another person (whether or not a party).
A provision in a construction contract that purports to require a payment to be made more than 42 days after the payment is claimed is to be read as being amended to require the payment to be made within 42 days after it is claimed.
[Section 10 amended: No. 55 of 2016 s. 7.]
A provision in a construction contract has no effect if it is a provision that is prescribed by the regulations to be a prohibited provision.
A provision in a construction contract that has no effect because of section 9 or 11 or that is modified under section 10 does not prejudice or affect the operation of other provisions of the contract.
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