Cl Offence Individual Corporation

Transcription

1 Attachment 1: Contracting Party's Offences & Penalties Cl Offence Individual Corporation 21(4) Failure to inform the principal and commissioner (in the approved form) within 5 business days of entering a subcontract with a related entity. 23(1) Failure to establish required PBA trust accounts (i.e. general trust account, retention account and disputed funds account) within 20 business days of the first subcontract. 23(2) & (3) Where a subcontract is entered before the day a PBA is required (e.g. where a PBA is required only after an amendment to a building contract) - failure to establish required PBA trust accounts (i.e. general trust account, retention account and disputed funds account) within 10 business days after start date of PBA building contract. 24(1) Failure to: deposit amounts using electronic transfers; and withdraw and transfer amounts using a payment instruction to the financial institution. 24(2) Failure to ensure the principal can view PBA trust account transactions, payment instructions and account reports. 25 Failure to include the words 'trust account' in the names of PBA trust accounts. 26(1) & (2) Failure to give the principal written notice of any action to open, change the name of or close a trust account within 10 business days of doing so. 27(4) Failure to deposit into the PBA general trust account any money paid by the principal directly to the head contractor or its agent in contravention of s27(2). (see comments in table below)

2 28 Causing an amount to be deposited into a PBA trust account for any purpose other than paying: the head contractor; a subcontractor; paying an disputed amount; or an amount prescribed by regulation. 29 Where a subcontractor is entitled to be paid under a subcontract - failure to pay the subcontractor from a PBA trust account (regardless of whether the amount is held in trust when the amount is due). 30 Where the head contractor knows there are insufficient funds in trust to pay a subcontractor beneficiary - failure to immediately deposit into the PBA trust account any shortfall. 31(1) Withdrawing an amount from a PBA trust account for a purpose other than: $12,615 1 year $63,075 paying a subcontractor; paying to themselves an amount due from the principal (but only to the extent the head contractor is not also liable to pay a subcontractor for the same work); returning an amount paid in error by the principal; or making a payment prescribed by regulation. 31(2) Failure to repay to the PBA trust account any amount withdrawn in contravention of section 31(1) as soon as practicable after withdrawing the amount. 32(1) & (2) Where there is an insufficient amount available in trust to pay a subcontractor - withdrawing an amount from the trust account to pay itself or making a prepayment prescribed by regulation before the subcontractor is paid in full.

3 33 For the duration that there is an insufficient amount available in the PBA trust account to satisfy, in full, amounts due to be paid to 2 or more subcontractors - failure to pay each subcontractor an amount reduced in proportion to the amount due. 34(1) Failure to hold a PBA retention amount in the retention trust account. 34(2) Withdrawing from the PBA retention account to make a payment, unless that is to make payment: $12,615 1 year $63,075 to a subcontractor; to itself to correct defects in building work or otherwise to secure, wholly or partly, the performance of a subcontract by a subcontractor; ordered by a court 34(3) Failure to ensure the amount held in the PBA retention account is identifiable as being held for the subcontractor that is entitled to be paid the amount. 36(2) Failure to transfer to the PBA disputed funds account an amount equal to the difference between the amount proposed in the payment schedule and the 'instructed amount', as soon as it becomes aware of a payment dispute. 36(3) Failure to ensure the amount transferred under s36(2) is not paid to any person other than the subcontractor or other person prescribed by regulation. 36(4) Failure to transfer an amount that is held in the PBA disputed funds account to the PBA general trust account within 5 business days after becoming aware it is no longer needed for the purpose for which it was held. 38(1) Dissolving a PBA while it is still required for a building contract. $12,615 NA $63,075 $6, NA $31, $63,075 1 year $315,375

4 40 Investing funds held in a PBA trust account (not applicable to any interest paid by the financial institution at which the account is held) 45(1) Failure to keep written records of all transactions involving amounts held in a PBA trust account. 45(3) Failure to keep the records required by s45(1) for a period of not less than 7 years 49(2) Failure to give the subcontractor the following information (in the approved form) prior to entering the subcontract: $37,845 1 year $189,225 $37,845 1 year $189,225 that a PBA will be used for making payments to the subcontractor; and details of the financial institution where the PBA is to be held. Note: where the head contractor enters a subcontractor before the date a PBA is required (start date), subsection (3) provides that the information is to be given to the subcontractor within 10 business days of the start date. 50(2) Failure to give the principal the information prescribed by regulation within 5 business days after establishing the PBA 50(3) Failure to advise the principal (using the approved form) of any change to the information provided under s50(2), within 5 business days. 51(2) Where a head contractor gives a financial institution an instruction about a payment from a trust account - failure to give a copy of the instruction to: $12,615 NA $63,075 the principal; and where the payment is to a subcontractor - the subcontractor. 51(4) In giving the principal and subcontractor (if required) a copy of the instructions under

5 s51(2) - giving information known to be false or misleading in a 'material particular'. 55(2) Where the principal is appointed trustee of a PBA under s54 - failure to give the principal information it will require to act as trustee for the PBA. 55(3) Failure to inform the financial institution of the principal's appointment as trustee of the PBA. $6, NA $31,537.50