Feature
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.
Security of Payment Act videos series – Parts 4 and 5 now online
22 June 2012
Parts 4 and 5 of our new video series on the practicalities of the Building and Construction Industry Security of Payment Act 2009 (SA) are now online.
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.
Alstom v Yokogawa (No. 7): Good Faith Et Al
5 June 2012
There are some seminal decisions in the area of construction law that are remarkably pithy, but the decision of Justice Bleby in Alstom Ltd v Yokogawa Australia Pty Ltd (No 7) [2012] SASC 49, in which judgment was delivered on 2 April 2012, is not one of them. The judgment runs to 461 pages, and Continue Reading »
Project Management: The Good, The Bad and the Ugly
22 May 2012
The Society of Construction Law Australia is bringing together a panel on the evening of 12 June 1012 to discuss early warning signs in projects, including real examples of where management strategies have been Good, Bad or Ugly, which will be followed by a networked event with participants from around the world. In the UK, Continue Reading »
Society of Construction Law – Security of Payment Survey
16 April 2012
The Australian Legislation Reform Subcommittee of SoCLA, now under the chairmanship of Robert Fenwick Elliott, is seeking to gather as much data as possible on how the various models for construction adjudication around Australia are working. If anyone has been involved in an adjudication – in any State or Territory, either as claimant or respondent, Continue Reading »
Adjudication Course – Last minute entries
13 March 2012
There are still a few last minute entries coming in for the joint Law Society/SA Bar Association Adjudicator Training Course, designed for those who would like to be on the new JANA Panel of Adjudicators. The course runs from lunchtime this Thursday, 15th March, to Saturday lunchtime. The course presenters are Professor Rashda Ran from Continue Reading »
A Survival Course – Building and Construction Industry Security of Payment Act 2009 (SA)
29 November 2011
A Survival Course on the new Building and Construction Industry Security of Payment Act 2009 (SA) – Master Builders Association Presentation 4th February 2010 – Presented by Robert Fenwick Elliott
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 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.
A Price on Carbon – Consequences for the Construction Industry
1 October 2011
Society of Construction Law video linked seminar on carbon pricing. The seminar, entitled ‘A Price on Carbon – Consequences for the Construction Industry’, will take place on Wednesday 19 October 2011.
SoCLA video-linked event “Concurrency and Non-Critical Delay”
28 June 2011
The Society of Construction Law Australia interactive panel discussion was held on 27th June 2011 via video-link on “Concurrency and Non-Critical Delay”. This event wa broadcast in Australia and New Zealand simultaneously with the help of video conferencing.
The Worker’s Liens Casebook now available for sale
20 June 2011
The Worker’s Liens Casebook, a new book by Robert Fenwick Elliott, has now been published and is available for sale for $145.
Jeanie Elliott appointed to South Australia’s new Architectural Practice Board
11 January 2011
The new Board will oversee the practice of architecture; approve courses of education or training; determine necessary requirements for registration; endorse professional standards; prepare guidelines on continuing architectural education; promote education in architecture and establish complainthandling procedures.
Clean sweep for Fenwick Elliott Grace in Doyle’s Guide
13 December 2010
Fenwick Elliott Grace has been identified as one of just two First Tier construction law firms in South Australia, gaining a “clean sweep” on front end matters.
The effectiveness of various contractual approaches
Paper for AMPLA Conference 2009 – 4 November 2009
The effectiveness of various contractual approaches at delivering the intention of the contract draftsman in the event that something goes wrong with the project.
Decor vs Cox
Supreme Court of South Australia, Besanko J – 22 December 2005
The first Australian decision on a global claim for damages arising from the failure of the head contractor to properly co-ordinate a building project.