New legislation to clarify the construction contract retention money scheme

Wednesday, June 2, 2021

The Government has introduced new legislation to strengthen and clarify the retention money scheme established in the Construction Contracts Act 2002 (CCA).

What is retention money?

Retention money is an amount held back from a payment made under a construction contract. It is usually a percentage of the amount payable of each instalment. It is generally held to ensure that a contractor performs all of its obligations under the contract, and is then released either on practical completion or after the end of a defects notification period.

What are the current requirements?

The CCA currently requires any party to a construction contract (party A) who is withholding retention money from the other party to the construction construct (party B), to hold that retention money on trust for the benefit of party B. The retention money may be held in cash, “other liquid assets that are readily converted into cash”, or a financial instrument such as insurance or a payment bond.

What is changing?

There are a number of key changes being made.

Funds deemed to be held on trust

As a result of some uncertainty in the original drafting, the CCA will be amended to explicitly state that a trust is created automatically; there is no need for any explicit intention of party A to hold the money on trust.

How retention money may be held

Retention money will be required to either:

  • be held in a bank account; or
  • be the subject of a suitable financial instrument such as insurance or a payment bond.

It will no longer be permissible to use “other liquid assets”, such as accounts receivable.

As the use (and availability) of financial instruments is rare, most retentions will be held in bank accounts. There are now new requirements for those accounts, including that:

  • the account must be established and used solely for the purpose of retention money (so it cannot be used as working capital for party A);
  • the account name must include “retention money trust account”; and
  • party A must ensure that the bank is aware that the account is a trust account.

Any interest that accrues in the account will belong to party A.

Party A may choose whether to have individual accounts for each subcontractor’s retention money or to have one account which holds all subcontractors’ funds. If funds are mingled, then party A must ensure that it has accounting records in the form of separate ledgers, identifying each party B for whom money is held, and the construction contract to which it relates.

Regular reports on retention money

Party A will be required to give specified information to party B at the time that retention money is held (or as soon as practicable) and then at least every three months thereafter. This information must include:

  • the most recent amount withheld, the relevant construction contract, and the date of the retention;
  • the total amount of retention money held by party A for party B;
  • if held in a bank account, the name of the bank and branch, the name of the account, the name of party B’s ledger (if the account has separate ledgers), and the total balance held for party B; and
  • if using a financial instrument, the name of the issuer, sufficient information to identify the instrument (such as a policy number), and the protected amount.

The effect of a receivership or liquidation

If party A is placed into either receivership or liquidation, the receiver or liquidator will hold the retention money on trust, and must deal with it in the same way as party A was required to do so. Reasonable fees and costs may be met from the retention money account. The CCA will also confirm that receivers and liquidators will be liable for any unlawful or improper action taken prior to their appointment. This solves the current position where receivers and liquidators are required to make an application to the court for directions.

Failure to comply

For the first time, the CCA will include penalty provisions for entities who do not comply with the retention money scheme. These penalties include:

  • for failure to keep retention money as required, a fine of up to $200,000;
  • for failure to keep proper accounting and other records of retention money, a fine of up to $50,000; and
  • for failure to provide regular reports on retention money, a fine of up to $50,000.

If party A is a company, each director can also be personally liable for failure to keep retention money as required, with a fine of up to $50,000 for each director.

What are the next steps?

The Construction Contracts (Retention Money) Amendment Bill will now progress through Parliament, and will be referred to a select committee for the public to make submissions. It will come info force six months after the Bill is finally approved by Parliament, so these provisions could still be a couple of years away.

Businesses wanting to be prepared for the change can start by keeping retention money in a separate bank account, with proper records of who that money is held on behalf of.

If you have any questions about this Bill, or about the retention money scheme generally, please contact a member of our construction & projects law team.

 

Disclaimer: The content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.

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