Construction Law Updates

Unjust and Biased?

No. 1306 – 29 August 2013

Construction Law Update 1306 is the first in a series of Updates on recent Court decisions likely to impact on the operation of South Australia’s new adjudication legislation. Fenwick Elliott Grace acted for Built Environs in the first Supreme Court challenge to an adjudicator’s determination on the basis of a breach of natural justice, bias and other grounds. Justice Blue has carefully examined the Protectavale case and found that cumulative progress claims are permissible where the contract allows for them. The Court’s decision shows that consultants with links to nominating authorities must look for potential conflicts of interest when they advise clients.

When is expert evidence inadmissible?

No. 1304 – 14 August 2013

Construction Law Update 1304 reports on how expert evidence is to be presented at trial. Generally, evidence at trial must be given by persons who saw or heard what happened and their opinions are not accepted by the Court. An exception to this rule is made when the Court allows an expert witness to give evidence. However, in order to fall within the exception, the expert’s report and evidence must comply with the rules of Court. Update 1304 looks at some recent cases where expert evidence has been disallowed due to failures to comply with the rules.

Calling on the guarantee

No. 1303 – 28 June 2013

In our current Update No. 1303, we report on a recent Federal Court decision dealing with the limited bases upon which a Court will prevent a principal from calling on a bank guarantee in the context of a construction contract.

Consequential loss: a new approach

No. 1302 – 20 May 2013

This Update reports on a further aspect of the recent Alstom decision dealing with the refurbishment of Playford B power station in South Australia. We have previously reported on the nature of the subcontract and on the obligation of a head contractor to provide a detailed works program to the subcontractor. In this Update, we discuss a new approach to the classification of compensation for breaches of contract.

Keeping subbies in the dark

No. 1301 – 10 April 2013

This Update reports on a further aspect of the recent Alstom decision dealing with the refurbishment of Playford B power station in South Australia. We previously reported in Update 1201 on the nature of the subcontract. This Update deals with the extent of the obligation of a head contractor to provide a detailed works program to the subcontractor.

Contractual roundabout

No. 1202 – 2 October 2012

This Update reports on a recent NSW Court of Appeal decision dealing with payment for construction work performed without a contract.

Courts have often adopted the view that work performed by a builder for an owner in the absence of a contract enriches the owner. It is often said that it would be unfair or unjust for the owner to retain the benefit without paying the builder. Principles of fairness and equity can then be applied by the Court to require the owner to pay the builder a fair amount for the benefit they have received.

However, the position is not clear cut. For example, if the owner did not request the work to be done, or reasonably thought that the work was being performed at no charge, the builder will be unlikely to succeed in making a claim. Update 1202 discusses the construction of a roundabout and the refusal of one of the parties to pay for the cost, even though the roundabout was essential to both parties as it was a condition of development approvals for their respective neighbouring properties. The case raises an interesting issue as to whether reliance by the builder on receiving payment for the work is an essential element to ensure recovery.

Power contract failure

No. 1201 – 21 June 2012

Alstom v Yokogawa involved a dispute over a $33 million subcontract to refurbish the electrical control system of the Playford B power station in South Australia. Many legal issues that frequently arise in construction disputes are canvassed in the decision. In this Update we look only at the issue of whether incorporating all of the terms of the head contract into the subcontract and then making specific amendments to selected terms and definitions was enough to make the subcontract “back to back”. “Back to back” contracts attempt to pass the head contractor’s risk down the line to the subcontractor.

Referring to Adjudication

No. 1106 – 15 November 2011

Adjudicators are given considerable power under the law to make determinations as to how much money is due for progress payments and the dates upon which payment should be made. When an adjudicator makes an error, the aggrieved party is likely to try to find what is called a ‘jurisdictional error’ to enable them to have the adjudicator’s decision overturned
by a court.

The Payment Schedule

No. 1105 – 1 November 2011

This Update discusses the necessary content of a Payment Schedule, the document that must be sent within 15 days in response to a Payment Claim, unless intending to pay in full.

The Payment Claim

No. 1104 – 29 October 2011

10 December 2011 marks a watershed moment in South Australia for the construction industry. On that day, the Building and Construction Industry Security of Payment Act 2009 (SA) comes into effect. This is the first in a series of updates that will deal with the new legislation.

Superman with two hats

No 1102 – 25 October 2011

Wunda Projects Pty Ltd v Kyren Pty Ltd discusses the difficulties created for a principal employing a Superintendent who is also involved in the management of the project.

Title fight

No. 1103 – 1 June 2011

Since the introduction of the Torrens title system, the certificate of title held by the owner of land has been considered as the final evidence of the owner’s rights to their land. There are limited exceptions set out in the Real Property Act 1886 (“the Act”) but most purchasers of land would consider that the title they obtain from the land agent can be relied upon without further investigation.

Radioactive good faith

No. 1101 – 1 February 2011

In Strzelecki Holdings Pty Ltd v Cable Sands Pty Ltd the West Australian Court of Appeal has clarified the current meaning of negotiating in “good faith”. It is not uncommon for parties considering entering into a significant commercial enterprise to initially agree a Memorandum of Understanding (“MOU”) on the basis that the MOU attempts to lock in the deal before they agree on all the terms.

Buyer Beware

No. 1005 – 1 October 2010

In a recent decision of the Supreme Court of South Australia, the Court was asked to decide whether the builder would be liable to the subsequent owner even if the defects complained about would have been apparent at the time of purchase from the original owner.

Blame it on the subbie

No. 1004 – 1 September 2010

A recent decision of the NSW Supreme Court (Owners Corporation v Dasco Constructions) raises the interesting question whether residential builders are liable to subsequent owners for defective work performed by their subcontractors.

Demolish or rectify?

No. 1003 – 1 June 2010

If a builder has made errors that cannot be completely removed without demolishing the works and starting again, does it have to demolish and rebuild or can compensation be assessed in some other way? The Full Court of the Supreme Court recently examined this question in Unique Building Pty Ltd v Brown.

Terminating Trouble

No. 1002 – 1 March 2010

The termination of a contract is a serious step with long term implications. Minor differences in the form and substance of the documents used in termination can lead to substantially different legal outcomes.

How will the New Law on progress payments work?

No. 1001 – 1 February 2010

Late last year, the South Australian Parliament passed the Building and Construction Industry Security of Payment Bill 2009 (the “New Law”). The New Law dramatically changes the ground rules on timing and liability for responding to payment claims in the construction industry.

Who is liable when one subcontractor negligently injures another?

No. 906 – 1 October 2009

Recently, in Leighton Contractors v Fox the High Court of Australia revisited the issue of liability of the head contractor for injury to an independent subcontractor caused by the negligent conduct of another subcontractor.

Is inserting “nil” enough to avoid delay damages?

No. 905 – 1 September 2009

Recently, in J-Corp v Mladenis the WA Court of Appeal was asked whether a clause limiting liquidated damages to “NIL” prevented the owners from claiming general damages for delay when the builder ran late finishing their home.