Comparison View

Formal Consolidation |  Amended Act 29 of 2020
Effect of Part 8 determination on operation of Building and Construction Industry Security of Payment Act
38B.—(1)  Where a determination has been made under section 38 or 38A (called in this section the Part 8 determination) to modify the manner in which an obligation or a right under a supply contract is to be performed or exercised, or to vary, or release or discharge a party from, a term in a supply contract, then the contract so adjusted is considered the contract for the purpose of taking any action (including determining an adjudication application or adjudication review application) in relation to it under SOPA.
(2)  When applying a provision of SOPA for the purpose mentioned in subsection (1) —
(a)a reference to a contract is to the contract so adjusted; and
(b)a reference to a term or provision of a contract is (if that term or provision has been varied by the Part 8 determination) to the varied term or provision.
(3)  Accordingly, where the respondent has been released or discharged by the Part 8 determination from a term or provision of the supply contract, then, in determining for the purpose of SOPA the entitlement of the claimant to any payment from the respondent under the contract, that term or provision is disregarded to the extent the respondent has been so released or discharged.
(4)  An adjudication application or adjudication review application made in a case mentioned in subsection (1) must be accompanied by a copy of the Part 8 determination.
(5)  For the purpose of determining if a claimant under the supply contract is entitled to make an adjudication application under section 13 of SOPA after the Part 8 determination, in relation to a payment claim that was made before the date of the Part 8 determination —
(a)the question of whether the payment claim was made and served in accordance with the provisions of SOPA is to be determined by reference to the contract before it was adjusted by the Part 8 determination; and
(b)the due date of the claimed amount under section 12(3)(a) of SOPA is, if it was adjusted by the Part 8 determination, the due date before the adjustment.
(6)  For the purpose of determining if an objection may be included in an adjudication response to an adjudication application mentioned in subsection (5), a reference to the relevant due date in section 15(3)(b) and (3A)(b) of SOPA is, if it was adjusted by the Part 8 determination, the due date before the adjustment.
(7)  However —
(a)an adjudicator when determining an adjudication application mentioned in subsection (5); or
(b)a review adjudicator when determining an adjudication review application arising from a determination mentioned in paragraph (a),
must disregard any payment claim, objection or any other information or document provided by a party, to the extent it is inconsistent with the contract as adjusted by the Part 8 determination.
(8)  This section applies despite any provision of SOPA or other written law.
(9)  In this section and section 38C —
“adjudication application” means an adjudication application made under section 13 of SOPA;
“adjudication review application” means an adjudication review application made under section 18 of SOPA;
“adjudicator” means an adjudicator appointed under section 14(3) of SOPA to determine an adjudication application, and includes a replacement adjudicator appointed under section 14A(3) of SOPA;
“authorised nominating body”, “claimant”, “payment claim”, “respondent” and “supply contract” have the meanings given by section 2 of SOPA;
“review adjudicator” means a review adjudicator appointed under section 18(5)(b) of SOPA, and includes a panel of review adjudicators appointed under that provision, and a replacement review adjudicator or replacement member of a panel of review adjudicators appointed under section 18A(3) of SOPA.
[Act 30 of 2020 wef 30/09/2020]
Informal Consolidation | Amended Act 30 of 2020
Effect of Part 8 determination on operation of Building and Construction Industry Security of Payment Act
38B.—(1)  Where a determination has been made under section 38 or 38A (called in this section the Part 8 determination) to modify the manner in which an obligation or a right under a supply contract is to be performed or exercised, or to vary, or release or discharge a party from, a term in a supply contract, then the contract so adjusted is considered the contract for the purpose of taking any action (including determining an adjudication application or adjudication review application) in relation to it under SOPA.
(2)  When applying a provision of SOPA for the purpose mentioned in subsection (1) —
(a)a reference to a contract is to the contract so adjusted; and
(b)a reference to a term or provision of a contract is (if that term or provision has been varied by the Part 8 determination) to the varied term or provision.
(3)  Accordingly, where the respondent has been released or discharged by the Part 8 determination from a term or provision of the supply contract, then, in determining for the purpose of SOPA the entitlement of the claimant to any payment from the respondent under the contract, that term or provision is disregarded to the extent the respondent has been so released or discharged.
(4)  An adjudication application or adjudication review application made in a case mentioned in subsection (1) must be accompanied by a copy of the Part 8 determination.
(5)  For the purpose of determining if a claimant under the supply contract is entitled to make an adjudication application under section 13 of SOPA after the Part 8 determination, in relation to a payment claim that was made before the date of the Part 8 determination —
(a)the question of whether the payment claim was made and served in accordance with the provisions of SOPA is to be determined by reference to the contract before it was adjusted by the Part 8 determination; and
(b)the due date of the claimed amount under section 12(3)(a) of SOPA is, if it was adjusted by the Part 8 determination, the due date before the adjustment.
(6)  For the purpose of determining if an objection may be included in an adjudication response to an adjudication application mentioned in subsection (5), a reference to the relevant due date in section 15(3)(b) and (3A)(b) of SOPA is, if it was adjusted by the Part 8 determination, the due date before the adjustment.
(7)  However —
(a)an adjudicator when determining an adjudication application mentioned in subsection (5); or
(b)a review adjudicator when determining an adjudication review application arising from a determination mentioned in paragraph (a),
must disregard any payment claim, objection or any other information or document provided by a party, to the extent it is inconsistent with the contract as adjusted by the Part 8 determination.
(8)  This section applies despite any provision of SOPA or other written law.
(9)  In this section and section 38C —
“adjudication application” means an adjudication application made under section 13 of SOPA;
“adjudication review application” means an adjudication review application made under section 18 of SOPA;
“adjudicator” means an adjudicator appointed under section 14(3) of SOPA to determine an adjudication application, and includes a replacement adjudicator appointed under section 14A(3) of SOPA;
“authorised nominating body”, “claimant”, “payment claim”, “respondent” and “supply contract” have the meanings given by section 2 of SOPA;
“review adjudicator” means a review adjudicator appointed under section 18(5)(b) of SOPA, and includes a panel of review adjudicators appointed under that provision, and a replacement review adjudicator or replacement member of a panel of review adjudicators appointed under section 18A(3) of SOPA.
[Act 30 of 2020 wef 30/09/2020]