Reporting Obligations for Retention Trusts
Notices to be given for Retention Trusts
There are many notices that must be given by the head contractor for a Retention Trust – to the subcontractor beneficiaries, and the Queensland Building and Construction Commissioner. It is an offence not to give a notice if it is required to be given – the penalties range from a maximum fine to a maximum term of imprisonment.
Information a subcontractor beneficiary can request
The head contractor is required to give certain information to a subcontractor beneficiary if it requests the information. It is an offence not to give the information within 10 business days after receiving the request (max penalty: 100 PU ($13,785)) unless:
- the head contractor has a reasonable excuse; or
- the information is already available to the person who asks for it; or
- the information has not changed since it was previously given to the person who asks for it.
A ‘reasonable excuse’ not to give the information is not because doing so would incriminate the head contractor or expose the head contractor to a penalty.
Only the following information can be requested by a subcontractor beneficiary:
The information must be given in writing and in English.
Only the information that relates to the particular subcontractor beneficiary that made the request is to be given i.e. must only give a list of transactions from the Retention Trust Account that were made to that particular subcontractor, only the balance of the amount held in the Retention Trust Account for the benefit of that particular subcontractor etc. It is important that the head contractor does not give more information to a subcontractor than it is required to give as the information that relates to other subcontractors is confidential and the head contractor may be in breach of its subcontract with another subcontractor if it discloses information to someone that is not permitted to receive it.
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