The ability of subcontractors to enforce determinations made in their favour under the Act has been strengthened by removing the requirement to obtain leave before enforcing a determination in their favour: Amendment No. 55 of 2016.
The amendment follows the ruling in Kellog Brown & root Pty Ltd v Doric Contractors Pty Ltd where the WA Supreme Court held that a determination under the Act may not be enforced by way of the issue of a statutory demand unless the party seeking to enforce the determination has first obtained the leave of a court pursuant to the old s.43(2).
Now all that is required to enforce a determination is the filing, in a court, of:
(a) A copy of the determination that the Building Commission has certified to be a true copy; and
(b) An affidavit as to the amount not paid under the determination.
The Act goes on to provide that once those two matters are filed in a court the determination is taken to be an order of the Court and may be enforced accordingly: s.43(3) of the Act.
The amendments reflect the position enunciated by Master Sanderson as to the interaction between the Act and the statutory demand procedure in the earlier case of Diploma Construction (WA) Pty Ltd v KPA Architects Pty Ltd.
For more information, contact Mark de Kerloy at mdekerloy@mdk.com.au
