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To ensure the efficient operation of the market for all businesses operating in the residential construction industry, HIA supports the general principle that parties should be free to contract and agree upon their own terms and conditions, including the terms and conditions of payment.
Any government intervention in the form of security of payment laws must be limited, focusing on facilitating prompt cash-flow and the timely payment of progress claims between all parties to construction contracts, including client to builder.
Security of payment laws should cover all building work contracts, including payments by domestic clients to builders. If a party in a contract chain is subject to a mandatory or implied condition or right under legislation, that condition or right, as a matter of commercial risk management, must be reflected throughout the entire contract chain.
HIA supports the needs of parties to construction contracts to be paid for the work that they perform in a timely manner and in accordance with the contract. Where a payment is genuinely disputed, HIA supports the implementation of systems that enable the fast and cost effective determination of such disputes. Contractual dispute resolution mechanisms, such as mediation, expert determination, arbitration and adjudication should be preferable to mandatory statutory mechanisms.
HIA opposes implied legislative rights (such as statutory construction trusts, statutory rights to suspend works and statutory liens) supplanting contractual relationships.
Only where the contract is silent or inadequate should HIA support the operation of implied contractual rights for the making of progress claims, the assessment of progress claims and payment of progress claims.
HIA supports progress payment rights being implied into a contract and not being stated as a separate statutory right. HIA opposes any implied time limit for the payment of claims. Such matters should be left to the parties to negotiate.
HIA does not support 'paid when paid' or 'paid if paid' clauses. Such clauses attempt to pass the risk of the owner not paying on to the subcontractor, even though the principal contractor/builder as general contractor is in a better position to manage and monitor risk of non-payment than are its subcontractors.
HIA opposes any type of deemed or construction trust for the residential building industry, including for deemed trusts arising on the insolvency of the principal for retentions. Statutory construction trusts are unfair, impractical and inequitable:
Retentions are monies held to secure performance of the contract and not moneys yet earned by the subcontractor.
HIA supports an amendment to section 556 of the Corporations Act to extend priority to subcontractors (as well as employees) in the event of the insolvency of the principal contractor/builder.
HIA supports the right of the builder to lodge a caveat over the property of the owner in all cases. Where there is a restriction on the right to lodge a caveat over domestic building work, HIA supports the right to caveat being allowed immediately on the commencement of adjudication proceedings.
HIA supports greater education for subcontractors and trade contractors including training in business skills and commercial risk management so they have a greater understanding of their rights and obligations and are in a better position to respond to adverse circumstances.
Policy endorsed by HIA National Policy Congress: May 2013; Amended 2016; Re-endorsed 2021
HIA provided a submission into the Help to Buy Bill 2023 and the Help to Buy (Consequential Provisions) Bill 2023, herein referred to as the Help to Buy Bills.
HIA submitted the Northern Territory pre-budget submission to the NT Chief Minister.
On 20 January 2024 HIA made a submission to the Tasmanian Government on the Future of Local Government Final Report.
On 19 January 2024 HIA made a submission to the Tasmanian Government on proposed amendments to the Director's Determinations on bushfire hazard areas.
HIA provided a submission for the Inquiry into the Superannuation (Objective) Bill 2023.
HIA submitted a response on the Climate-related Financial Disclosure legislation following the release of the exposure draft.