BuildLaw Issue 35 April 2019 | Page 52

Hong Kong Proposed SOPL Model
Comparing with the above reform of Queensland’s security of payment law, Hong Kong appears to take the following positions for its proposed SOPL model:
1. PBA is not proposed;
2. A payment claim in the proposed Hong Kong SOPL refers to “a statutory claim for payment made under the proposed SOPL. Making a payment claim will require certain minimum criteria to be met in terms of the content of the Payment Claim. For example, details of the amount claimed, the relevant work carried out and the basis of calculation must be provided.59 ” It further states that a payment claim must state the amount claimed and provide a breakdown and details of the relevant work, services, materials and plant provided and the basis of valuation of the same and/or provide a breakdown and details of any other claims made under the contract and the basis of calculation of the same60. Whether a payment claim must also state that it is made under the proposed Hong Kong security of payment ordinance will have an important consequence to all future SOPL users;
3. Second chance payment schedule is not adopted;
4. Parties to the contract are free to agree the number of progress payments, when they can be claimed and the basis of calculating amounts due61 . A reference date may not be the only benchmark for submitting a payment claim;
5. To address ambush tactics, the adjudicator shall be entitled to disregard any submission or evidence or part thereof submitted by the claimant to the extent that the adjudicator considers the same comprises submissions or evidence which the respondent was unaware of at the time the notice of adjudication was served and which should reasonably have been served with the payment claim or otherwise in advance of the notice of adjudication and which cannot fairly be considered and responded to by the responding party in the adjudication 62. New reasons will not be allowed in the adjudication response if they are not raised in the payment response subject to a reasonableness test;
6. It is uncertain whether the adjudicator has the power to limit the volume and extent of documents during the proceedings;
7. The time limit for initiating an adjudication application is 28 calendar days from63 :
a) Non-payment of an amount admitted as due in a payment response; or
b) Service of a payment response disputing all or part of a payment claim and/or identifying amounts to be set off against or deducted from amounts otherwise due in respect of the payment claim; or
c) The failure of the paying party to serve a payment response in relation to the payment claim within the required time; or
d) A dispute arising as to the time for performance or entitlement to extension of the time for performance of work or services or supply of materials or plant under the contract by one of the parties to the contract.
Conclusions
Statutory regulation on timely payment in the entire construction supply chain is imminent for many countries having the construction industry as the key driver of economic development. Hong Kong and the different provinces of Canada appear to be the countries adopting security of payment law in the near future. Although common features can be found in the different jurisdictions, each jurisdiction aims at customising its own legislation to provide maximum benefits and payment protection to the domestic construction industry. It is hoped that the Hong Kong security of payment ordinance will come into effect in 2019 to safeguard the interests of all the construction practitioners in the supply chain.