International Construction Law Review
Australia’s SECURITY OF PAYMENT EXPERIENCE: A CRYSTAL BALL FOR MALAYSIA AND HONG KONG?
dr jeremy coggins
The University of South Australia*
matthew bell
The University of Melbourne**
I. INTRODUCTION
Construction industry payment and adjudication legislation based on the UK Housing Grants, Construction and Regeneration Act 1996 (“HGCRA”) has, to date, been enacted in 16 jurisdictions around the world1. The common objective of all of the legislation is to get cash flowing in as fair a manner as possible down the hierarchical contractual chains that exist on most commercial construction projects. Although all of the 16 Acts differ from each other to varying – and, often, extensive2 – degrees, two broad legislative models may be distinguished: the UK model and the NSW model.
The UK model is the legislation based upon Part II of the HGCRA which provides an adjudication scheme designed to be “the key to settling disputes [on construction contracts] in the construction industry”3. The second or “NSW” model is the legislation based upon the Building and Construction Industry Security of Payment Act 1999 (NSW) which was designed to be more of an independent progress payment certification mechanism than a dispute resolution process.
153BSc (Hons), LLM, GradCertBCLaw, PhD in Law (Adelaide); Senior Lecturer and Co-Program Director for Construction Management and Economics, School of Natural and Built Environments, The University of South Australia.
154BA (Hons), LLB (Hons), M Constr Law (Melb); Senior Lecturer and Co-Director of Studies for Construction Law, Melbourne Law School, The University of Melbourne; Professional Support Lawyer to the Major Projects and Construction Group, Clayton Utz.
1England & Wales, Scotland, Northern Ireland, New South Wales, Victoria, New Zealand, Queensland, Isle of Man, Western Australia, Singapore, Northern Territory, Tasmania, Australian Capital Territory, South Australia, Malaysia and Ireland.
2See, generally, Matthew Bell and Jeremy Coggins, “Beyond the Nutcracker Suite: International Harmonisation of Construction Industry Payment Legislation” [2015] ICLR 186.
3Michael Latham, “Constructing the Team – Final Report of the Government/Industry Review of Procurement and Contractual Arrangements in the UK Construction Industry” (1994) 87. Other Acts heavily influenced by the shape and form of the UK Act include those enacted in the Isle of Man, Western Australia, Northern Territory, and Ireland.
Pt 4] Australia’s Security of Payment
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