The Retentions Regime—A Toothless Tiger: Will It Gain Some Teeth?
摘要
Most construction contracts incorporate a retention clause of 2–10%. Reviewed literature reveals that these clauses have existed for almost two centuries to ensure performance. Globally subcontractors risk non-payment if the main contracting company fails. Historically when the New Zealand Wages Protection and Contractors Liens Act (WPCLA) passed in 1939, subcontractors were protected in this country. Unfortunately, that legislation was repealed in 1987 due to business pressure, and recent substantial subcontractor losses have resulted in a public awareness. Governmental attempts to reverse this situation have been unsuccessful since. The purpose of this research was to assess whether the Construction Contracts (Retention Money) Amendment Act (CC(RM)AA), the latest proposed legislation, found favour with construction industry stakeholders. Statistical thematic analysis of forty-six industry-related participants revealed that they supported the government’s protection objective. In fact, the general opinion was that the Act would be an improvement and better protect subcontractors. However, some questioned imprecise wording and gaps in the Act. Their responses to the survey also noted that there was no “de minimis” amount and no regulatory monitoring. The principal change mandates “that a trust” is created at the time the construction contract allows retention to be held back. However, when this Act comes into force, will subcontractors finally regain the protection they lost with the repeal in 1987 of the Wages Protection and Contractors Liens Act 1939? Only time will tell.