Case name
Australian Building and Construction Commissioner v N-Cap Pty Ltd
Known as
N-Cap
Commonwealth Courts Portal reference and link

CAG41/2020

Applicant
Australian Building and Construction Commissioner
Respondent(s) at time of filing
N-Cap Pty Ltd
Date filed
State/Territory
ACT
Alleged breach(es) at time of filing
Non-compliance with notices
Status
Current
Summary at time of filing

The ABCC has filed Federal Circuit Court proceedings against NSW company N-Cap Pty Ltd alleging it failed to comply with a compliance notice requiring it to pay a subcontractor for work at the Australian Parliament House Security Upgrade project in Canberra.

The ABCC initiated an audit of N-Cap to assess its compliance with its security of payment obligations at the project in July 2019.

The subcontractor had made a payment claim to N-Cap under the Building and Construction Industry Security of Payment Act 2009 (ACT).

The ABCC’s audit alleged N-Cap had failed to comply with the Code for the Tendering and Performance of Building Work 2016 (Building Code) when it failed to make payment to its subcontractor.

Following the audit, N-Cap was provided with the opportunity to rectify the issue, however, the company declined to do so. On 12 May 2020, the ABCC issued a compliance notice to N-Cap requiring it to pay the subcontractor.

In its statement of claim the ABCC is alleging N-Cap failed to comply with the notice in contravention of section 99(7) of the Building and Construction Industry Improving Productivity Act 2016 (BCIIP Act), resulting in the ABCC commencing legal proceedings.

The maximum penalty for a contravention of section 99(7) of the BCIIP Act is $21,000 for a body corporate and $4,200 for an individual.

The ABCC is seeking a pecuniary penalty be imposed on N-Cap and an order to compel N-Cap to pay the subcontractor in full, plus interest.

These are the first court proceedings that the ABCC has initiated relating to non-compliance with security of payments laws.

Historical content

23 Sep 2020 - ABCC takes action after NSW company fails to pay subcontractor for work at Parliament House Security Upgrade Project