Auditing a Retention Trust Account

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    Do Retention Trust Accounts have to be externally audited?

    It is mandatory for every Retention Trust Account to be audited by a registered company auditor that is independent of the head contractor and has not been excluded by the Queensland Building and Construction Commissioner (max penalty: 200 PU ($27,570) or 1 year’s imprisonment).

    The audit must be carried out annually. For the first annual audit, the Review Period is 12 months’ long starting on the day the Retention Trust Account was opened. For all subsequent annual audits, the Review Period starts the day after the last audit Review Period ends. The audit must be commenced within 20 business days after the end of the Review Period and completed within 40 business days after commencing the audit.

    The audit must also be carried out on closure of a Retention Trust Account. For a closure audit of a Retention Trust Account that has not yet had a Review Period, the Review Period is the period from the day the account was opened to the day the account was closed. For a closure audit of a Retention Trust Account that has had a previous Review Period, the Review Period is the period from the day after the last Review Period ends to the day the account was closed. The audit must be commenced within 20 business days after the closure of the Retention Trust Account and completed within 40 business days after commencing the audit.

    The Queensland Building and Construction Commissioner may, with the agreement of the head contractor, change the day the review must be started to a later day.  However, if the day the review must be started is delayed, the review period is extended accordingly.

    Retention Trust Account audit process

    The head contractor as trustee of the Retention Trust Account must give the auditor all Trust Records requested by the auditor as soon as practicable after the records are requested (max penalty: 200 PU ($27,570)).

    The auditor is required to prepare an Account Review Report (max penalty: 200 PU ($27,570)).  The auditor must give a copy of the Account Review Report to the head contractor.  The auditor must also give a copy of the Account Review Report to the Queensland Building and Construction Commissioner, in an approved way, within 20 business days after completing the review (max penalty: 50 PU ($6,892.50)).

    Auditor's Reporting Obligations

    If the auditor reasonably believes any of the following circumstances apply, the auditor must, using an approved way, notify the Queensland Building and Construction Commissioner of the belief within 5 business days after forming the belief (max penalty: 200 PU ($27,570) or 1 year’s imprisonment):

      • the auditor cannot report that a trust account has been kept in accordance with chapter 2 of the BIFA;
      • the auditor finds an irregularity relating to a trust account;
      • the auditor suspects the head contractor has not met its obligations under chapter 2 of the BIFA;
      • the auditor suspects a contravention of the BIFA, prescribed by regulation (there is nothing yet prescribed by regulation), has occurred.

    The difficulty with these requirements is that the BIFA requires the auditor to report all irregularities relating to a trust account and all non-compliances with chapter 2.  However, this is not restricted to accounting recording non-compliances.  Compliance with chapter 2 requires an assessment of a number of legal matters including:

      • which subcontractors are beneficiaries for the Project Trust i.e. identify whether the subcontracted work is protected work or related services;
      • when the head contractor is liable to pay a subcontractor under a subcontract;
      • what amount the head contractor is liable to pay a subcontractor;
      • what the due date for payment is;
      • whether an invoice received from a subcontractor is a valid payment claim;
      • whether a valid payment schedule has been issued;
      • how a provision of a contract relating to recourse to cash retention operates at law.

    The QBCC’s Regulatory Guide has not yet been released for auditors.  However, the QBCC has indicated that it expects auditors to focus on compliances regarding accounting records and not interpretation of the BIFA.  We urge caution in relying on those representations given the significant penalties that apply under the BIFA for auditors.  

    FAQs

    An independent company auditor is:

      • a person who is a registered company auditor; and
      • is not an employee of the head contractor;
      • is not an executive officer, investor or shareholder of the company if the head contractor is a company;
      • is not a partner in the partnership if the head contractor is a partnership; and
      • is not a related entity for the head contractor.

    No – an audit of the Retention Trust Account is not required if no retention money was held in the Retention Trust Account during the Review Period provided the head contractor gives the Queensland Building and Construction Commissioner a statement, using the approved form, within 10 business days after the end of the Review Period explaining why the head contractor did not engage an auditor to audit the Retention Trust Account.

    This page considers the situation where Retention Trusts apply to subcontracts. Unless noted otherwise, all references to a ‘subcontractor’ in relation to a subcontract Retention Trust refers to a subcontractor that is a beneficiary of the associated Project Trust.

    If a head contract requires a Retention Trust, the rules set out on this page are the same but the principal is the ‘trustee’ and all head contractors are ‘beneficiaries’ for head contracts that are Project Trust Contracts.

    If a lower-tier subcontract also requires a Retention Trust, the rules set out on this page are the same but the higher tier subcontractor is the ‘trustee’ and its subcontractors are ‘subcontractor beneficiaries’.

    Last updated: 1 January 2022

    subcontract

    means a contract that contributes to the performance of the head contract because the work required to be carried out under the subcontract, will form all or part of the work required to be carried out under the other contract, and the contribution is not merely a coincidence e.g. purchase of tools.

    Notice that a Retention Trust Account will be used

    Who?
    WhAT?
    • Notify that a Retention Trust Account will be used for holding cash retentions held from the subcontractor under the subcontract
    • Other information to be included in the notice:
        1. name of the account;
        2. name of the financial institution where the account is kept;
        3. identifying number of the financial institution (BSB) where the account is kept;
        4. account number at the financial institution;
        5. information identifying the contract to which the Project Trust relates.
    When?
    • before withholding cash retention 
    WhAT ELSE?

    If the Retention Trust Account was not opened before the Retention Trust is required, the notice must be given within 5 business days after opening the Retention Trust Account.

    Notice of payment from the Retention Trust Account

    Who?
    WhAT?
    • Information to be included in the notice:
        1. the amount that was paid;
        2. the reason for the payment e.g. payment made to correct defects, payment made to recover debt due from the subcontractor;
        3. the total retention amounts held in the Retention Trust Account, after the withdrawal, for the subcontractor under the Retention Trust Contract;
        4. the date the payment was paid.
    When?
    • Within 5 business days after making the payment

    Notice of release to subcontractor

    Who?
    WhAT?
    • Information to be included in the notice:
        1. the amount that was paid to the subcontractor;
        2. identification of the payment claim for the payment, if any;
        3. the name of the account the payment was paid to (payment account);
        4. the identifying number of the financial institution (BSB) where the payment account is kept;
        5. the account number, at the financial institution, for the payment account;
        6. the total retention amounts held in the Retention Trust Account, after the withdrawal, for the subcontractor under the Retention Trust Contract;
        7. the date the payment was paid.
    When?
    • Within 5 business days after making the payment

    Notice of deposit into Retention Trust Account

    Who?
    WhAT?
    • Information to be included in the notice:
        1. the amount deposited into the Retention Trust Account;
        2. identification of the payment claim for the deposit, if any;
        3. the name of the account;
        4. the name of the financial institution where the account is kept;
        5. the identifying number of the financial institution (BSB) where the account is kept;
        6. the account number, at the financial institution, for the account;
        7. the date the deposit was deposited;
        8. the total retention amounts held in the Retention Trust Account, when the notice is given, for the subcontractor under the Retention Trust Contract.
    When?
    • Within 5 business days after making the deposit

    Notice of transfer of Retention Trust Account

    Who?
    WhAT?
    • Notify the action that has been taken i.e. that a Retention Trust Account has been transferred
    • Other information to be included in the notice:
        1. name of the trustee
        2. name of the account before the transfer;
        3. name of the account after the transfer;
        4. name of the financial institution where the account was kept before the transfer;
        5. name of the financial institution where the account is kept after the transfer;
        6. identifying number of the financial institution (BSB) where the account was kept before the transfer;
        7. identifying number of the financial institution (BSB) where the account is kept after the transfer;
        8. account number at the financial institution before the transfer;
        9. account number at the financial institution after the transfer;
        10. the date the account was transferred;
        11. the date from which the new account is intended to be used.
    When?
    • Within 5 business days after transferring the account

    Notice of closing of Retention Trust Account

    Who?
    WhAT?
    • Notify the action that has been taken i.e. that a Retention Trust Account has been closed
    • Other information to be included in the notice:
        1. name of the trustee
        2. name of the account;
        3. name of the financial institution where the account is kept;
        4. identifying number of the financial institution (BSB) where the account is kept;
        5. account number at the financial institution;
        6. date the account was closed.
    When?
    • Within 5 business days after closing the account

    Notice of name change of Retention Trust Account

    Who?
    WhAT?
    • Notify the action that has been taken i.e. that the name of the Retention Trust Account has been changed
    • Other information to be included in the notice:
        1. name of the trustee
        2. name of the account before the change;
        3. name of the account after the change;
        4. name of the financial institution where the account is kept;
        5. identifying number of the financial institution (BSB) where the account is kept;
        6. account number at the financial institution;
        7. date the name of the account was changed.
    When?
    • Within 5 business days after changing the name of the account

    Notice of transfer to Retention Trust Account

    Who?
    WhAT?
    • Information to be included in the notice:
        1. the amount deposited into the Retention Trust Account;
        2. identification of the payment claim for the deposit, if any;
        3. the name of the account the deposit was deposited into (deposit account);
        4. the name of the financial institution where the deposit account is kept;
        5. the identifying number of the financial institution (BSB) where the deposit account is kept;
        6. the account number, at the financial institution, for the deposit account;
        7. the date the deposit was deposited;
        8. the total retention amounts held in the Retention Trust Account, when the notice is given, for the subcontractor under the Retention Trust Contract.
    When?
    • Within 5 business days after making the deposit

    Notice of opening of Retention Trust Account

    Who?
    WhAT?
    • Notify the action that has been taken i.e. that a Retention Trust Account has been opened
    • Other information to be included in the notice:
        1. name of the trustee
        2. name of the account;
        3. name of the financial institution where the account is kept;
        4. identifying number of the financial institution (BSB) where the account is kept;
        5. account number at the financial institution;
        6. date the account was opened.
    When?
    • Within 5 business days after opening the account

    Example

    George Taylor is a subcontractor to the builder, Smith Builders Pty Ltd.  Under the subcontract, Smith Builders Pty Ltd is holding $20,000 in the Retention Trust Account for this subcontract being the amount withheld from payment to George as cash retention for the subcontract.

    During the project, George is overpaid and owes a debt of $5,600 to Smith Builders Pty Ltd.  George fails to repay the debt and the subcontract includes a clause that allows Smith Builders Pty Ltd to have recourse to the retention money to recover the debt owed.  Accordingly, on the day the subcontract allows recourse to recover the debt owed, Smith Builders Pty Ltd gains a beneficial interest in the amount of the debt (i.e. $5,600) in the amount held in the Retention Trust Account, and George has a beneficial interest in $14,400 being the remainder that is held from the subcontract ($20,000 – $5,600 = $14,400).

    Notice of payment to subcontractor

    Who?
    WhAT?
    • Information to be included in the notice:
        1. the amount that was paid to the subcontractor;
        2. identification of the payment claim for the payment, if any;
        3. the name of the account the payment was paid to (payment account);
        4. the identifying number of the financial institution (BSB) where the payment account is kept;
        5. the account number, at the financial institution, for the payment account;
        6. the date the payment was paid.
    When?
    • Within 5 business days after making the payment

    trust transaction records

    means the record of deposits and withdrawals from a trust account.

    account review report

    means a report certifying that, based on a review of the administration of the account, it is the auditor’s opinion that the trustee has complied with all the requirements of chapter 2 of BIFA for the account during the period to which the report relates.  The Account Review Report must include the following information:
      1. the name of the auditor who carried out the review for the report;
      2. details of the auditor’s membership of a professional association and the auditor’s qualifications;
      3. details of the trust account reviewed, including:
        1. the name of the account;
        2. the identifying number of the financial institution (BSB) for the account;
        3. the account number;
      4. a statement as to whether or not:
        1. the review has been completed by an auditor who is independent of the trustee;
        2. the trust records relating to the trust account have been examined;
        3. the trust records relating to the trust account have been kept in compliance with the BIFA;
        4. the trustee has complied with all requirements for the relevant trust under the BIFA;
      5. details of any irregularities identified during the review of the trust records relating to the trust account;
      6. if an account was closed during the review period, a statement of whether or not the account was closed in compliance with the BIFA;
      7. details of any non-compliance with the requirements for the trust account under the BIFA identified by the auditor, including how and when the non-compliance was rectified;
      8. an explanation of the review methodology used and why it was used.

    bank reconciliation

    means a reconciliation of transaction entries in the Trust Account Ledger against the bank statement for the Project Trust Account and/or the Retention Trust Account.

    trust account ledger trial balance statement

    means a record that:

      • states the month to which it relates and the date it was prepared;
      • lists the name of each beneficiary for money that is held in the account at the end of the month; and
      • shows the total of the balances held for each beneficiary at the end of that month.

    NB: Where all amounts due to be paid to a subcontractor beneficiary and/or a head contractor beneficiary have been paid within that month, and no other money is being held for the beneficiaries, the trust account ledger trial balance statement will show nil for all beneficiaries.

    trust records

    means the records that must be kept by the trustee for the Project Trust and the Retention Trust. Full details can be found here.

    Notice of transfer of Project Trust Account

    Who?
    WhAT?
    • Notify the action that has been taken i.e. that a Project Trust Account has been transferred
    • Other information to be included in the notice:
        1. name of the trustee
        2. name of the account before the transfer;
        3. name of the account after the transfer;
        4. name of the financial institution where the account was kept before the transfer;
        5. name of the financial institution where the account is kept after the transfer;
        6. identifying number of the financial institution (BSB) where the account was kept before the transfer;
        7. identifying number of the financial institution (BSB) where the account is kept after the transfer;
        8. account number at the financial institution before the transfer;
        9. account number at the financial institution after the transfer;
        10. the date the account was transferred;
        11. the date from which the new account is intended to be used.
    When?
    • Within 5 business days after transferring the account

    Notice of closing of Project Trust Account

    Who?
    WhAT?
    • Notify the action that has been taken i.e. that a Project Trust Account has been closed
    • Other information to be included in the notice:
        1. name of the trustee
        2. name of the account;
        3. name of the financial institution where the account is kept;
        4. identifying number of the financial institution (BSB) where the account is kept;
        5. account number at the financial institution;
        6. date the account was closed.
    When?
    • Within 5 business days after closing the account

    Notice of name change of Project Trust Account

    Who?
    WhAT?
    • Notify the action that has been taken i.e. that the name of the Project Trust Account has been changed
    • Other information to be included in the notice:
        1. name of the trustee
        2. name of the account before the change;
        3. name of the account after the change;
        4. name of the financial institution where the account is kept;
        5. identifying number of the financial institution (BSB) where the account is kept;
        6. account number at the financial institution;
        7. date the name of the account was changed.
    When?
    • Within 5 business days after changing the name of the account

    eligible

    for a Project Trust, means that a contract has:

    • a contracting party that is a principal of the type noted for the current phase of the Statutory Trust Framework rollout; and
    • a contract price that is an amount that falls within the current phase of the Statutory Trust Framework rollout; and
    • more than 50% of the work to be carried out under the contract that is Project Trust Work.

    established

    for a Project Trust, means the time at which the first of the following occurs after the Project Trust is required:

    • payment of an amount from the principal to the head contractor under the Project Trust Contract;
    • payment of an amount from the head contractor to a subcontractor beneficiary for subcontracted work for the Project Trust Contract;
    • a deposit is made into the Project Trust Account.

    Notice that a Project Trust Account will be used

    Who?
    WhAT?
    • Notify that a Project Trust Account will be used for making payments to the subcontractor under the subcontract
    • Other information to be included in the notice:
        1. name of the account;
        2. name of the financial institution where the account is kept;
        3. identifying number of the financial institution (BSB) where the account is kept;
        4. account number at the financial institution;
        5. information identifying the contract to which the Project Trust relates.
    When?
    • if the Project Trust is not yet established at the time of entering into the subcontract, the notice must be given within 10 business days after the Project Trust is established;
    • if the Project Trust is already established at the time of entering into the subcontract, the notice must be given before the parties enter into the subcontract.
    WhAT ELSE?

    If the Project Trust is not required for a Project Trust Contract until after an amendment of the contract and the head contractor entered into a subcontract before the amendment, the notice must be given within 10 business days after opening the Project Trust Account.

    Notice of opening of Project Trust Account

    Who?
    WhAT?
    • Notify the action that has been taken i.e. that a Project Trust Account has been opened
    • Other information to be included in the notice:
        1. name of the trustee
        2. name of the account;
        3. name of the financial institution where the account is kept;
        4. identifying number of the financial institution (BSB) where the account is kept;
        5. account number at the financial institution.
    When?
    • Within 5 business days after opening the account

    Example

    Head contract:

    • entered into on 1 November 2021;
    • contract price is $11M; 
    • scope of work includes more than 50% Project Trust Work;
    • first subcontract was entered into on 15 November 2021.

    Accordingly, a Project Trust was not required prior to 1 January 2022.

    However, a variation to the head contract is agreed on 1 February 2022 that increases the scope of work and the contract price.  The total revised contract price on 1 February 2022 is now $12M (for this variation and all previous variations i.e. 9% more than the original contract price).  

    Whilst a Project Trust is technically required on 1 February 2022, it seems that the State may not have intended a Project Trust to be required until the revised contract price reached $14.3M (being 30% more than the original contract price).  We recommend that you carefully consider your position in this situation until the legislation is either changed by the State, or the State confirms that the legislation currently reflects its intention.

    Example

    Head contract:

    • entered into on 15 August 2021;
    • contract price is $8M; 
    • scope of work includes more than 50% Project Trust Work;
    • first subcontract was entered into on 20 August 2021.

    Accordingly, a Project Trust was not required prior to 1 January 2022.

    However, a variation to the head contract is agreed on 13 April 2022 that increases the scope of work and the contract price.  The total revised contract price on 13 April 2022 is now $10.8M (for this variation and all previous variations i.e. 35% more than the original contract price).  

    Therefore, a Project Trust is required on 13 April 2022.  This is so even if the State changes the legislation because the contract price has increased by more than 30% so is definitely captured by BIF2.

    building designer

    Statutory Trust Framework

    Commencement DatePrincipalContract Price (excl GST)
    1 March 2021State Government$1M – $10M
    All State Authorities (if it opts in)$1M or more
    1 July 2021State Government or Hospital and Health Services$1M or more
    Other State Authorities (if it opts in)$1M or more
    1 January 2022State Government or Hospital and Health Services$1M or more
    Other State Authorities (if it opts in)$1M or more
    Other State Authorities (mandatory)$10M or more
    Private Entity$10M or more
    1 April 2023State Government or Hospital and Health Services$1M or more
    Other State Authorities (if it opts in)$1M or more
    Other State Authorities (mandatory)$3M or more
    Private Entity$3M or more
    1 October 2023State Government or Hospital and Health Services or all State Authorities$1M or more
    Private Entity$1M or more

    protected work

    means any of the following work if it is to be carried out under a first-tier subcontract for a Project Trust Contract:

    1. the construction, alteration, repair, restoration, maintenance, extension, demolition or dismantling of buildings, whether permanent or not, forming, or to form, part of land;
    2. the construction, alteration, repair, restoration, maintenance, extension, demolition or dismantling of any works forming, or to form, part of land, including walls, roadworks, powerlines, telecommunication apparatus, aircraft runways, docks and harbours, railways, inland waterways, pipelines, reservoirs, water mains, wells, sewers, industrial plant and installations for land drainage or coast protection;
    3. the installation in any building or other works of fittings forming, or to form, part of land, including heating, lighting, air-conditioning, ventilation, power supply, drainage, sanitation, water supply, fire protection, security and communications systems;
    4. the external or internal cleaning of buildings and other works, so far as it is carried out in the course of their construction, alteration, repair, restoration, maintenance or extension;
    5. any operation that forms an integral part of, or is preparatory to or is for completing, work of the kind referred to in paragraph (a), (b) or (c), including:
        1. site clearance, earthmoving, excavation, tunnelling and boring; and
        2. the laying of foundations; and
        3. the erection, maintenance or dismantling of scaffolding; and
        4. the prefabrication of components to form part of any building or other works, whether carried out on-site or off-site; and
        5. site restoration, landscaping and the provision of roadways and other access works;
    6. the painting or decorating of the internal or external surfaces of any building or other works;
    7. the testing of soils and road making materials during the construction and maintenance of roads;
    8. the prefabrication of complete buildings or components of a building or other works, whether carried out on-site or off-site;
    9. any other work of a kind prescribed by regulation. (There is currently no additional work that is prescribed by regulation.)

    Protected Work includes all work that is Project Trust Work but does not include:

    • the drilling for, or extraction of, oil or natural gas;
    • the extraction, whether by underground or surface working, of minerals, including tunnelling or boring, or constructing underground works, for that purpose;
    • work prescribed by regulation not to be Protected Work. (There is currently no work that is prescribed by regulation not to be Protected Work.)

    Example

    The balance of the Project Trust Account is $65,124 on 8 March 2021. On 9 March 2021, the builder is due to pay the electrician $48,200, the plumber $23,100 and the carpenter $14,100. The total amount due on that day is $85,400 which is more than the balance in the bank account. Therefore, the builder must make pro rata payments to each subcontractor as follows:

    electrician pro rata payment = 48,200/85,400 x $65,214 = $36,756.17

    plumber pro rata payment = 23,100/85,400 x $65,124 = $17,615.51

    carpenter pro rata payment = 14,100/85,400 x $65,124 = $10,752.32

    Example

    Bob the Builder Pty Ltd has a head contract that is a Project Trust Contract under BIF2.  Bob the Builder Pty Ltd subcontracts with Tom’s Carpentry Pty Ltd but does not hold cash retention under the carpentry subcontract.  However, Tom’s Carpentry Pty Ltd enters into a sub-subcontract with George Smith and retention is withheld from George Smith for the sub-subcontract work.  Therefore, Tom’s Carpentry Pty Ltd is required to open a Retention Trust Account for George’s cash retention and to comply with all of the obligations in BIF2 that apply to Retention Trust Accounts.

    Example

    Smith Builders Pty Ltd enters into a contract with the State for Project Trust Work.  The contract price is $800,000 excluding GST (Contract 1).  After two weeks of negotiations, the parties agree that Smith Builders Pty Ltd will enter into a separate contract with the State (Contract 2) for additional work that is also Project Trust Work, with a contract price of $400,000 excluding GST.  Even though the parties have entered into two separate contracts, if the work was to be carried out on the same or adjacent sites, then a Project Trust would be required for both contracts as the combined value of Contracts 1 and 2 is $1.2M which is more than the current threshold under the Statutory Trust Framework.  The only way that the contracts would be excluded is if the parties could prove that Contract 2 was entered into as part of a separate tender process to Contract 1.  If that cannot be shown, then the combined value of the two contracts must be used when calculating ‘contract price’ and determining if a Project Trust is required.

    Example

    The contract price for the head contract with the Department of Education for the construction of a new school building is $1,800,000. Hence, the contract is a Project Trust Contract. However, three months into the project, the parties agree to significantly reduce the scope of work to be carried out under the contract and the revised contract price is $250,000. A Project Trust would not typically apply to a contract of that value, however, as the contract was a Project Trust Contract when it commenced, it is always a Project Trust Contract and the parties are required to continue to comply with the requirements of BIF2 until the contract comes to an end or the Project Trust is lawfully dissolved.

    Example

    A buyer pays a deposit to a real estate agent for the purchase of a house.  The deposit is held in the real estate agent’s trust account until settlement of the sale of the house.  On settlement, the balance of the purchase price is paid to the seller and the real estate agent is required to release the deposit to the seller less the agreed fee for the real estate agent.  The real estate agent cannot use the money held in trust until authorised to do so by the person who deposited the money into the trust account i.e. buyer.  The real estate agent is the trustee and the buyer is the beneficiary until such time as the purchase has been finalised at which point the seller and the real estate agent become the beneficiary for different amounts.

    Example

    George Smith has completed carpentry works under a first-tier subcontract under a Project Trust – the value of the work completed to date is $53,245 under this subcontract. To date, the builder has only paid George $35,125. However, the due date for payment for the outstanding $18,120 has not yet arisen. Therefore, George does not have any beneficial interest under the Project Trust until the due date for payment has arisen.

    Example

    A child is left money from its grandparents upon death. Parents hold that money in trust for the benefit of the child (as the child is less than 18 years old so is not yet an adult). A formal trust may be created by the grandparents’ will with associated written documents drawn up, or a different written agreement could provide the parents with the obligation to hold the money in trust for the benefit of the child until the child turns 18 years old.

    Example

    A buyer pays a deposit to a real estate agent for the purchase of a house.  The deposit is held in the real estate agent’s trust account until settlement of the sale of the house.  On settlement, the balance of the purchase price is paid to the seller and the real estate agent is required to release the deposit to the seller less the agreed fee for the real estate agent.  The real estate agent cannot use the money held in trust until authorised to do so by the person who deposited the money into the trust account i.e. buyer.  The real estate agent is the trustee and the buyer is the beneficiary until such time as the purchase has been finalised at which point the seller and the real estate agent become the beneficiary for different amounts.

    variation

    of a contract, means an addition to, or an omission from, the contracted work.

    supporting statement

    means a written statement to be given by a head contractor to its client in accordance with the Building Industry Fairness (Security of Payment) Act 2017, section 75(7).

    subcontractor beneficiary

    means a subcontractor who is a beneficiary of a Project Trust and/or a Retention Trust.

    subcontractor

    means a contractor who is engaged by another contractor (e.g. head contractor) to perform work that contributes to the performance of another contract (e.g. head contract) because the work, required to be carried out under the subcontract, will form part of the work required to be carried out under that other contract. However, it does not include work for which the contribution is merely a coincidence e.g. purchase of tools.

    storey

    1. means a space within a building which is situated between one floor level and the next floor level, or if there is no floor above, the ceiling or roof above; but
    2. does not include a mezzanine or space that contains only:
        1. a lift, shaft, stairway or meter room; or
        2. a bathroom, shower room, laundry, water closet or other sanitary compartment; or
        3. accommodation intended for not more than three vehicles; or
        4. any combination of a thing mentioned above;
    3. for a residence, does not include one storey of the building if more than 50% of the floor area of at least one storey of the building is designed to accommodate motor vehicles e.g. if the building has three storeys plus one storey that has more than 50% as carpark, then the building is considered to have only three storeys for the purposes of determining if the building is a residence.

    State / State Government

    means a department of the Queensland State Government e.g. Department of Education, Department of Energy and Public Works, Department of Health but excludes a State Authority.

    State Authority

    means:

    1. an agency, authority, commission, corporation, instrumentality, office, or other entity, established under an Act or by authority of the State for a public or State purpose; or
    2. a corporation that is:
        1. owned or controlled by the State, a local government or an entity mentioned in subparagraph a); and
        2. prescribed by regulation to be a State authority; or
    3. a subsidiary of a corporation mentioned in subparagraph b); or
    4. a part of an entity mentioned in subparagraphs a) to c); or
    5. a hospital and health service;

    but does not include an entity prescribed by regulation not to be a State Authority. (There are currently no entities that are prescribed by regulation not to be a State Authority.)

    special investigator

    means an appropriately qualified person appointed by the Queensland Building and Construction Commissioner to investigate a person’s compliance with the requirements of Building Industry Fairness (Security of Payment) Act 2017, chapter 2.

    rolling stock

    means a vehicle that operates on or uses rails, including, for example, a carriage, locomotive, rail car, tram or trolley.

    road

    1. means an area of land –
        1. whether surveyed or unsurveyed, dedicated, notified or declared to be a road for public use; or
        2. whether surveyed or unsurveyed, taken under an Act, for the purpose of a road for public use; or
        3. developed, or to be developed, for the public use of driving or riding of motor vehicles; and
    2. includes –
        1. a street, esplanade, highway, pathway, thoroughfare, toll road, track or stock route; and
        2. a causeway or culvert in, on, or under a road that is associated with the road; and
        3. a structure in, on, or under a road that is associated with the road; and
    3. does not include a driveway.

    retention trust (subcontract)

    means a trust over cash retention withheld from a subcontractor under a subcontract that falls under a head contract that is a Project Trust Contract.

    retention trust (head contract)

    means a trust over cash retention withheld from a head contractor under a Project Trust Contract.

    retention trust contract

    means a contract from which cash retention is withheld.

    retention trust account (subcontract)

    means a bank account that is held at an approved financial institution for cash retention that is withheld from subcontractor beneficiaries under subcontracts that fall under a head contract that is a Project Trust Contract.

    retention trust account (head contract)

    means a bank account that is held at an approved financial institution for cash retention that is withheld from head contractor beneficiaries under head contracts that are Project Trust Contracts.

    retention trust

    means a trust over cash retention withheld from a head contractor or a subcontractor in relation to a Project Trust Contract.

    residential unit

    means a part of a building designed for separate occupation as a residence.

    residential construction work

    means the following work if carried out by a licensed contractor and the insurable value of the work is more than $3,300 including GST:

      1. the construction of a residence or related roofed building;
      2. building work within the building envelope of a residence or related roofed building;
      3. building work, on a thing connected to a residence or related roofed building, that requires a building development approval under the Building Act 1975 or a permit under the Plumbing and Drainage Act 2018;
      4. the construction, installation, alteration or repair of a swimming pool for a:
          1. residence or proposed residence; or
          2. related roofed building or proposed related roofed building.

    The following work is also residential construction work if carried out for work mentioned above:

    • for work relating to a residence – work carried out on the site of the residence or proposed residence;
    • for work relating to a related roofed building – work carried out on the site of the building or proposed building;
    • other work necessary for the proper construction, installation, alteration or repair of a residence or related roofed building, including, for example:
      • work performed by an architect under the Architects Act 2002 in the architect’s professional practice; and
      • work performed by a registered professional engineer under the Professional Engineers Act 2002 in the engineer’s professional practice; and
      • work performed by a surveyor under the Surveyors Act 2003 in the surveyor’s professional practice.

    residence

    for residential construction work:

    1. each of the following structures is a residence if fixed to land and designed to be used for residential purposes –
        1. a single detached dwelling;
        2. one or more attached dwellings that are separated by a common wall e.g. duplex, row house, terrace house, townhouse, villa unit;
        3. a building, of not more than three storeys, containing two or more separate residential units;
    2. part of a structure mentioned in a) if the part is designed to be used for residential purposes;
    3. a manufactured home fixed, or intended to be fixed, to land in a residential park.

    However, the following things are not a residence:

    • a boat, caravan, motor vehicle, tent, trailer or train;
    • a building designed as a temporary or movable building, other than a manufactured home mentioned above.

    related services

    means

    1. architectural, design, surveying or quantity surveying services relating to Protected Work; or
    2. building advisory services, engineering advisory services, interior or exterior decoration advisory services or landscaping advisory services if relating to Protected Work; or
    3. soil testing services relating to Protected Work.

    related roofed building

    1. means a building that –
        1. has a roof designed to be part of the building and is impervious to water or wind; and
        2. is, or is proposed to be, on the site of a residence or proposed residence; and
        3. is used, or proposed to be used, for a purpose related to the use of a residence or proposed residence; but
    2. does not include –
        1. a residence; or
        2. a building if the roof is a sail, umbrella or similar thing.

    related entity

    WhoWhat relationships
    IndividualsMembers of the same family i.e.
    • a person’s spouse;

    • a parent or grandparent of the person or the person’s spouse;

    • a brother, sister, aunt, uncle, nephew, niece of the person or the person’s spouse;

    • a child or grandchild of the person or the person’s spouse;

    • the spouse of any person listed above
    Individual and CorporationIndividual or a member of the individual’s family:
    • is a majority shareholder, director or secretary of the corporation or a related body corporate of the corporation; or

    • has an interest of 50% or more in the corporation
    Individual and Trustee of a TrustIndividual or related entity under another provision of this definition is a beneficiary of the trust
    CorporationsRelated bodies corporate under the Corporations Act 2001, section 50
    Corporation and Trustee of TrustCorporation or related entity under another provision of this definition is a beneficiary of the trust
    Trustees of two or more TrustsA person is a beneficiary of both trusts, or a person is a beneficiary of one trust and a related entity under another provision of this definition is a beneficiary of the other trust

    A person is also a ‘related entity’ for another person if the person acquires interests in a land holding trust (see Duties Act 2001, schedule 6) and the acquisitions form, evidence, give effect to or arise from what is substantially one agreement.

    railway

    1. means a guided system designed for the movement of rolling stock having the capability of transporting passengers, livestock or freight on a track with a gauge of 600mm or more; and
    2. includes a railway station or platform.

    project trust work

    means any of the following work to be carried out under the Project Trust Contract:

      1. the erection or construction of a building;
      2. the renovation, alteration, extension, improvement or repair of a building;
      3. the provision of lighting, heating, ventilation, air conditioning, water supply, sewerage or drainage in connection with a building;
      4. any site work (including the construction of retaining structures) related to work of a kind mentioned in paragraph (a), (b) or (c);
      5. the preparation of plans or specifications for the performance of any other work mentioned in this definition;
      6. contract administration if carried out by a person for the construction of a building wholly or partly designed by the person;
      7. fire protection work within the meaning of  the Queensland Building and Construction Commission Act 1991, schedule 2;
      8. site testing within the meaning of the Queensland Building and Construction Commission Act 1991, schedule 2 and classification carried out in preparation for the erection or construction of a building on the site;
      9. the carrying out of a building inspection;
      10. the inspection or investigation of a building, and the provision of advice or a report, for the following—
          1. termite management systems for the building;
          2. termite infestation in the building;
      11. work performed by an architect under the Architects Act 2002 in the architect’s professional practice if the work is associated with a building;
      12. work performed by a registered professional engineer under the Professional Engineers Act 2002 in the engineer’s professional practice if the work is associated with a building;
      13. work performed by a surveyor under the Surveyors Act 2003 in the surveyor’s professional practice if the work is associated with a building;
      14. electrical work under the Electrical Safety Act 2002 if the work is associated with a building;
      15. the erection of scaffolding that is associated with a building;
      16. earthmoving and excavating that is associated with a building;
      17. certification work performed by a building certifier under the Building Act 1975 in the certifier’s professional practice if the work is associated with a building;
      18. the assessment of energy efficiency of a building;
      19. work performed by a fire safety adviser under the Building Fire Safety Regulation 2008 if the work is associated with a building;
      20. the laying of wet pour rubber, including the laying of a blended mix of graded rubber particles and binder to provide a continuous surface if the work is associated with a building;
      21. the installation of prefabricated components of a building;
      22. mechanical services work that is associated with a building.

    Project Trust Work also includes work prescribed by regulation to be Project Trust Work and does not include work that is prescribed by regulation not to be Project Trust Work.

    Currently, the only additional work that has been prescribed by regulation to be Project Trust Work is as follows:

    • the management and removal of scaffolding if the scaffolding is used for carrying out other Project Trust Work;
    • the construction, installation, alteration or repair of a swimming pool, whether associated with a building or not.

    Currently the only work that is prescribed by regulation not to be Project Trust Work is as follows:

    • the construction, maintenance or repair of a busway, road or railway;
    • the construction, maintenance or repair of a tunnel for a busway, road or railway;
    • an authorised activity for a resource authority.

    project trust project

    means a project that has a head contract that is a Project Trust Contract.

    project trust contract

    means a head contract between the principal and the head contractor for Project Trust Work if the contract is eligible for a Project Trust, is not an exempted contract, and the head contractor enters into a subcontract for all or part of the contracted work and the subcontract work is Protected Work or is for the provision of Related Services.

    project trust account

    means a bank account for the Project Trust that is held at an Approved Financial Institution.

    project trust

    means a trust over particular money that relates to a Project Trust Contract.

    private property

    includes a separate or distinct parcel of land for which an interest is recorded in a register under the Land Act 1994.

    private entity

    means a company or other entity that is owned by any entity other than the State Government, but does not include a State Authority.

    principal

    means the client that the Project Trust Work is being carried out for by the head contractor and who is a party to the Project Trust Contract with the head contractor e.g. developer, State Government, State Authority, etc.

    practical completion

    for the purposes of determining whether a Project Trust is required, means practical completion as provided for under the contract, or if the contract does not provide for practical completion, when the contracted work would reasonably be estimated to be completed:

    • in compliance with the contract, including all plans and specifications for the work and all statutory requirements applying to the work; and
    • without any defects or omissions, other than minor defects or minor omissions that will not unreasonably affect the intended use of the work.

    payment schedule

    means a payment schedule given in accordance with the Building Industry Fairness (Security of Payment) Act 2017, section 76.

    payment claim

    means a payment claim given in accordance with the Building Industry Fairness (Security of Payment) Act 2017, section 75.

    obstruct

    includes assault, hinder, resist and attempt or threaten to obstruct.

    minimum contract price

    means an amount prescribed by regulation as the minimum subcontract price for a subcontract under a Project Trust Contract. (There is currently no minimum subcontract price prescribed by regulation.)

    maintenance work

    1. means:
      1. testing; and
      2. taking samples and restoring the sample site; and
      3. work required on an ongoing basis to:
          1. prevent deterioration or failure of a thing; or
          2. restore a thing to its correct operating specifications; or
          3. replace a component at the end of its working life; but
    2. does not include:
      1. improving a building to increase its capabilities or functions; or
      2. improving a building to meet new statutory requirements applying to the building; or
      3. a refurbishment or replacement of a building that extends the life of the building.

    licensed contractor

    means a person who holds a contractor’s licence under the Queensland Building and Construction Commission Act 1991.

    liable to pay a subcontractor

    the head contractor is liable to pay the subcontractor if any of the following circumstances apply:

    • an amount is due to be paid by the head contractor to the subcontractor under the subcontract – liable on the day the payment is due to be paid;
    • an amount is certified, or otherwise assessed, by the head contractor to be paid to the subcontractor under the subcontract – liable on the day the payment is due to be paid;
    • an amount is stated in a payment schedule given by the head contractor to the subcontractor in relation to the subcontract – liable on the day the payment schedule is given;
    • an amount stated in a valid payment claim given by the subcontractor to the head contractor in relation to the subcontract if the head contractor did not give a valid payment schedule to the subcontractor – liable to pay the full amount of the payment claim on the due date for payment;
    • an amount is to be paid because of an adjudication decision in relation to the subcontract – liable on the day the adjudication decision is given to the head contractor;
    • an amount is to be paid because of a final and binding dispute resolution process in relation to the subcontract – liable on the day the dispute is resolved;
    • an amount is ordered to be paid to the subcontractor in relation to the subcontract by a court or tribunal – liable on the day the decision is released.

    insurable value

    for residential construction work, means an amount representing the reasonable cost to the insurer of having the work carried out by a licensed contractor on the basis that all building and other materials are to be supplied by the contractor (whether or not the work is carried out by a licensed contractor on that basis).

    Hospital and Health Service

    means a Hospital and Health Service established under the Hospital and Health Boards Act 2011, section 17.

    head contractor beneficiary

    means a head contractor who is a beneficiary of a Retention Trust for a Project Trust Contract.

    head contractor

    means the entity that is contracted to the principal to carry out Project Trust Work.

    head contract

    means the contract between the head contractor and the principal that includes the carrying out of Project Trust Work that is not also a subcontract for another contract e.g. contract between a principal and a builder.

    first tier subcontractor

    means a subcontractor to the head contractor under a Project Trust Contract.

    first tier subcontract

    means a subcontract to the head contract under a Project Trust Contract.

    due to be paid

    an amount is due to be paid on the due date for the payment.  The due date for the payment may be as per the contract and/or as per the Building Industry Fairness (Security of Payment) Act 2017, section 73 if it is in relation to a valid payment claim.

    driveway

    means:

    1. a surface constructed –
        1. on private property; and
        2. for the purpose of driving or riding of motor vehicles to or from the property and a road; and
        3. for which the right to use the surface is restricted to persons with an interest in the property and their invitees; or
    2.  a surface constructed –
        1. between the boundary of a private property and that part of a road used for the driving or riding of motor vehicles; and
        2. for the purpose of driving or riding of motor vehicles to or from the property and the road.

    design work

    means the preparation of plans or specifications for Project Trust Work.

    contracting party

    for a contract, means the party to the contract for whom the contracted work is to be carried out.

    contracted work

    for a contract, means the work required to be carried out under the contract.

    contracted party

    for a contract, means the party to the contract who is required to perform work under the contract, whether by:

    1. carrying out the work personally; or
    2. directly or indirectly causing the work to be carried out.

    contract price

    means the amount the contracted party is entitled to be paid under the contract (e.g. agreed price for a lump sum contract) or, if no amount is agreed or the amount cannot be accurately calculated, the reasonable estimate of the amount the contracted party is entitled to be paid under the contract. The Contract Price does not include Goods and Services Tax.

    contract administration

    in relation to Project Trust Work wholly or partly designed by a person, includes the following:

    1. preparing tender documentation and calling and selecting tenders;
    2. preparing, or helping the person’s clients with the preparation of, contracts;
    3. preparing additional documentation for the person’s clients or building contractors;
    4. arranging and conducting on-site meetings and inspections;
    5. arranging progress payments;
    6. arranging for certificates, including from a local government, to be issued;
    7. providing advice and help to the person’s clients including during the maintenance period allowed under a contract.

    cash retention

    means security for a contract that is provided in the form of cash withheld from each progress payment made to the contractor (either head contractor or subcontractor).

    busway

    means a route especially designed and constructed for, and dedicated to, the priority movement of buses for passenger transport, and includes:

    1. places for the taking on and letting off of passengers of buses using the busway; and
    2. a causeway or culvert in, on, or under a busway that is associated with the busway; and
    3. another structure that supports a busway or has the purpose of ensuring the safe or efficient use of a busway (e.g. bridge, fence, gate, pedestrian overpass, pillar, sign).

    building envelope

    for a residence or related roofed building, means the outermost sides of the aggregation of the components of a building that have the primary function of separating the internal part of the residence or related roofed building from the external environment e.g. slab and footings system, an external wall and a roof.

    building

    means a fixed structure that is wholly or partly enclosed by walls or is roofed.

    beneficial interest

    means an amount that a particular beneficiary is entitled to from the Project Trust or Retention Trust, as applicable.  It will change from day to day as a beneficiary’s entitlement to money under a contract changes from day to day.

    authorised authority

    approved financial institution

    means a financial institution approved by the Queensland Building and Construction Commissioner.

    amendment

    of a contract, includes any variation of the contract or change in the contract price.

    advisory work

    means

    1. the inspection or investigation of a building; or
    2. the provision of advice or a report about a building.

    adjudication

    means the process for consideration of a valid payment claim by an adjudicator under the Building Industry Fairness (Security of Payment) Act 2017, chapter 3.