The Queensland BCIPA (Payments Act) provides for including cash retention in a payment claim and damages that arise as a result of suspending work under the contract [section 17(3)]. This means that a retention amount can be included in an adjudication application. Other security of payment acts are similar. This does not extends to releasing bank guarantees. Security of payment acts can not be used to force the release of securities that are secured by bank guarantees and similar financial instruments.
In Queensland, claimants have strong protection under the Qld Building Services Act (QBSA) from respondents wrongly withholding retention (or the release of guarantees), under section 67J, that requires 28 days notice before deducting a retention amount. If notice has not been given, the "set-off" would not be allowed in an adjudication. Of course you must make a claim under 67J to an adjudicator. an adjudicator is not expected to, and will not, go hunting to find what you are entitled to.
The AIQS Dispute Resolution Centre can advise you in relation to your entitlements under security of payment. Call us today if you need advice.
Thepowertool protects your entitlement to payment by properly calculating retention amounts when they are due. Check thepowertool today.