Building & Construction Law Basics – Part 3 – Reference Date

Welcome to part 3 of our series of articles discussing the basics of the Building Industry Fairness (Security of Payment) Act 2017 (Qld)(BIFA).  So far in this series we’ve covered:

If you’ve missed these articles, be sure to read them here.

What is a reference date? It’s a date stated in the construction contract as the date a progress payment claim can be made for construction work carried out, or related goods and services supplied under the contract. If the contract does not provide a reference date, it will be the last day of each month for the period of the contract.  However, if a construction contract is terminated and the contract does not provide a reference date surviving beyond termination, the final reference date is the date the contract was terminated.

So, what does all this mean? Essentially, the person or company who carried out construction work or supplied related goods and services (“the claimant”) can only make one payment claim on or after each valid reference date. A  claimant can serve a payment claim after the reference date, anytime up to 6 months after it last carried out construction work or supplied related goods and services(unless the payment claim is a final claim, then it is within 28 days of the end of the defects liability period).  A claimant cannot serve a payment claim before the reference date regardless of the provisions of the contract; if it does than the payment claimis invalid under BIFA.  

Some contracts will be careful relying on contractual preconditions to a reference date arising, including requirements for a statutory declaration. Statutory obligations under BIFA take precedence over contractual obligations so any preconditions contrary to BIFA regarding reference dates may be deemed void under BIFA.  

With more than 15 years’ experience in the building and construction industry and as a commercial litigator with a focus on contractual disputes, debt recovery, building and construction for the last 11 years, our principal solicitor Sam Cohen brings a wealth of knowledge and experience in a complex area of law. If you would like more information about reference dates or any other matters relating to building and construction, please contact us today!

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