Western Australian Numbered Acts Western Australian Numbered Acts[s. 13 to 22]
The contractor is not
bound to perform any variation of its obligations unless the contractor and
the principal have agreed on —
(a) the
nature and extent of the variation of those obligations; and
(b) the
amount, or a means of calculating the amount, that the principal is to pay the
contractor in relation to the variation of those obligations.
Division 2 — Contractor’s entitlement to be paid
2. Contractor entitled to be paid
(1) The contractor is
entitled to be paid a reasonable amount for performing its obligations.
(2) Subclause (1)
applies whether or not the contractor performs all of its obligations.
Division 3 — Claims for progress payments
3. Entitlement to claim progress payments
The contractor is
entitled to make one or more claims for a progress payment in relation to
those of the contractor’s obligations that the contractor has performed
and for which it has not been paid by the principal.
4. When claims for progress payments can be made
(1) A claim by the
contractor for a progress payment can be made at any time after the contractor
has performed any of its obligations.
(2) The making of a
claim for a progress payment does not prevent the contractor from making any
other claim for moneys payable to the contractor under or in connection with
this contract.
Division 4 — Making claims for payment
(1) In this
clause —
“payment claim” means a
claim —
(a) by
the contractor to the principal for payment of an amount in relation to the
performance by the contractor of its obligations under this contract; or
(b) 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 this
contract.
(2) A payment claim
must —
(a) be
in writing;
(b) be
addressed to the party to which the claim is made;
(c)
state the name of the claimant;
(d)
state the date of the claim;
(e)
state the amount claimed;
(f) in
the case of a claim by the contractor — itemise and describe the
obligations that the contractor has performed and to which the claim relates
in sufficient detail for the principal to assess the claim;
(g) in
the case of a claim by the principal — describe the basis for the
claim in sufficient detail for the contractor to assess the claim;
(h) be
signed by the claimant; and
(i)
be given to the party to which the claim is made.
(3) In the case of a
claim by the contractor, the amount claimed in a payment claim —
(a) must
be calculated in accordance with this contract; or
(b) if
this contract does not provide a means of calculating the amount, must
be —
(i)
if this contract says that the principal is to pay the
contractor one amount (the “contract sum” ) for the performance by
the contractor of all of its obligations under this contract (the “total
obligations” ) — the proportion of the contract sum that is
equal to the proportion that the obligations performed and detailed in the
claim are of the total obligations;
(ii)
if this contract says that the principal is to pay the
contractor in accordance with rates specified in this contract —
the value of the obligations performed and detailed in the claim calculated by
reference to those rates; or
(iii)
in any other case — a reasonable amount for
the obligations performed and detailed in the claim.
(4) Paragraph (b)
of subclause (3) does not prevent the amount claimed in a progress claim
from being an aggregate of amounts calculated under one or more of
subparagraphs (i), (ii) and (iii) of that paragraph.
Division 5 — Responding to claims for payment
6. Interpretation in Division 5
In this
Division —
“payment claim” means a
claim —
(a) by
the contractor to the principal for payment of an amount in relation to the
performance by the contractor of its obligations under this contract; or
(b) 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 this
contract.
7. Responding to a payment claim
(1) If a party that
receives a payment claim —
(a)
believes the claim should be rejected because the claim has not been made in
accordance with this contract; or
(b)
disputes the whole or part of the claim,
the party must, within
14 days after receiving the claim, give the claimant a notice of dispute.
(2) A notice of
dispute must —
(a) be
in writing;
(b) be
addressed to the claimant;
(c)
state the name of the party giving the notice;
(d)
state the date of the notice;
(e)
identify the claim to which the notice relates;
(f) if
the claim is being rejected under subclause (1)(a) — state the
reasons for the belief that the claim has not been made in accordance with
this contract;
(g) if
the claim is being disputed under subclause (1)(b) — identify
each item of the claim that is disputed and state, in relation to each of
those items, the reasons for disputing it; and
(h) be
signed by the party giving the notice.
(3) Within
28 days after a party receives a payment claim, the party must do one of
the following, unless the claim has been rejected or wholly disputed in
accordance with subclause (1) —
(a) pay
the part of the amount of the claim that is not disputed;
(b) pay
the whole of the amount of the claim.
(4) If under this
contract the principal is entitled to retain a portion of any amount payable
by the principal to the contractor —
(a)
subclause (3) does not affect the entitlement; and
(b) the
principal must advise the contractor in writing (either in a notice of dispute
or separately) of any amount retained under the entitlement.
Division 6 — Interest on overdue payments
8. Interest payable on overdue payments
(1) Interest is
payable on so much of an amount that is payable under this contract by a party
to another party on or before a certain date but which is unpaid after that
date.
(2) The interest is to
be paid for the period beginning on the day after the date on which the amount
is due and ending on and including the date on which the amount payable is
paid.
(3) The rate of
interest at any time is equal to that prescribed for that time under the
Supreme Court Act 1935 section 142.
Division 7 — Ownership of goods
9. When ownership of goods supplied by contractor
passes
The ownership of goods
that are —
(a)
related to construction work; and
(b)
supplied to the site of the construction work by the contractor under its
obligations under this contract,
passes from the
contractor when whichever of the following happens first —
(c) when
the contractor is paid for the goods; or
(d) when
the goods become fixtures.
Division 8 — Duties as to unfixed goods on insolvency
10. Duties of principal or landowner etc. as to
unfixed goods on insolvency
(1) In this
clause —
“insolvent” means —
(a) in
relation to a natural person, an insolvent under administration as that term
is defined in the Corporations Act 2001 of the Commonwealth;
(b) in
relation to a body corporate, an externally-administered body corporate as
that term is defined in the Corporations Act 2001 of the Commonwealth.
(2) If —
(a)
goods that are related to construction work have been supplied to the site of
the construction work by the contractor under its obligations under this
contract;
(b) the
contractor has not been paid for the goods;
(c) the
goods have not become fixtures;
(d)
ownership of the goods has not passed from the contractor;
(e) the
goods are in the possession of or under the control of —
(i)
the principal; or
(ii)
a person for whom, directly or indirectly, the principal
is performing construction work or to whom, directly or indirectly, the
principal is supplying goods and services that are related to
construction work;
and
(f) the
principal or that person becomes an insolvent,
the principal and that
person —
(g) must
not, during the insolvency, allow the goods to become fixtures or to fall into
the possession of or under the control of any other person, other than the
contractor, except with the prior written consent of the contractor; and
(h) must
allow the contractor a reasonable opportunity to repossess the goods.
11. Retention money to be held on trust
If the principal
retains from an amount payable by the principal to the contractor for the
performance by the contractor of its obligations a portion of that amount (the
“retention money” ), the principal holds the retention money on
trust for the contractor until whichever of the following happens
first —
(a) the
money is paid to the contractor;
(b) the
contractor, in writing, agrees to give up any claim to the money;
(c) the
money ceases to be payable to the contractor by virtue of the operation of
this contract; or
(d) an
adjudicator, arbitrator, or other person, or a court, tribunal or other body,
determines that the money ceases to be payable to the contractor.
Defined Terms
[This is a list of terms defined and the provisions where they
are defined. The list is not part of the law.]
Defined Term Provision(s)
adjudication
3
applicant 3
appointed
adjudicator 3
civil works
4(1)
construction contract 3
construction
work 3, 4(2), 4(4)
contract sum
Sch. 1, cl. 5(3)
contractor 3
costs
of an adjudication 3
court of competent
jurisdiction 43(1)
determination
3
insolvent Sch. 1, cl. 10(1)
obligations 3
party 3
payment claim 3, Sch. 1, cl. 5(1), Sch. 1, cl. 6
payment dispute 3
prescribed appointor
3
prescribed time 31(1)
principal 3
protected person
54(1)
registered adjudicator 3
Registrar
3
retention money Sch.
1, cl. 11
site in WA 4(1)
total obligations
Sch. 1, cl. 5(3)
By Authority: JOHN A. STRIJK, Government Printer