Legal News

Kellogg Brown & Root v Doric Contractors; Determination as judgment

28 October 2014

In Kellogg Brown & Root Pty Ltd v Doric Contractors Pty Ltd [2014] WASC 206, the unsuccessful respondent to an adjudication determination managed to set aside a statutory demand issued pursuant to the determination because the claimant had not first “converted” the determination into a judgement.  This case was under the WA Act, which requires […]

Just pay the money now

No. 1405 – 20 October 2014

A recent Queensland Supreme Court case where a contractor sought an injunction to prevent enforcement of a $14 million adjudication award shows that Courts remain committed to the purpose of the Security of Payment legislation: keeping cash moving in the construction industry.

Expectations of a Competent Professional

13 October 2014

A recent District Court decision in New Zealand has set an important precedent for the engineering industry. In particular, the proceedings between Canterbury Regional Council (“the Council”) and Eliot Sinclair and Partners Ltd (“Eliot Sinclair”) examined the level of skill, care and diligence that can be expected of a competent professional involved in development and […]

Securing Leased Property

3 October 2014

KordMentha Pty Ltd (“KordaMentha”) has issued proceedings in the Supreme Court of NSW, claiming that four gas turbines worth $50 million leased to Forge Group Limited (“Forge“) by APR Energy PLC (“APR“) may be sold to recover debts as the lease was not registered on the Personal Properties Security Register (“PPSR“).   This is the largest […]

When the principal delays the work

No. 1403 – 26 September 2014

The principal sometimes delays a construction project and in doing so breaches the building contract. If the contract terms allow the principal to then deduct liquidated damages from the contractor’s final payment because the project runs late, is this legal? The answer may depend on whether the contractor asked for an extension of time and on where the work is being done. Read our Update on the prevention principle and time bar clauses.

New “fast track stream” Court procedures in all SA Courts

12 September 2014

Commencing 1 October 2014, there will be a new optional “Fast Track Stream” in all South Australian Courts available for “straight forward” cases not exceeding a quantum of $250,000 (combined quantum of claim and counterclaim) and not expected to take more than 3 days at trial. An election can be made by either party at […]

Ignoring a Payment Claim

No. 1404 – 5 September 2014

The NT Supreme Court has very recently clarified how the Construction Contract (Security of Payments) Act operates when a payment claim is ignored. In the similar legislation applicable in SA and the Eastern States, contractors have to promptly respond to a payment claim with a payment schedule to avoid liability for the full amount of the claim. The NT and WA adopted a less stringent regime and it has not been clear what liability arises when a payment claim is ignored. That situation has now changed.

Time bar clauses – might they be void?

No. 1402 – 22 August 2014

Commercial construction contracts often include time bar clauses, requiring the contractor to give prompt notice of any possible delay to practical completion.

Failure to give notice within the time allowed is sometimes relied on to deny the contractor an extension of time. In this Update we discuss recent developments that may cast doubt on the validity of some time bar clauses.

When can you rely on the subcontractor?

No. 1401 – 15 August 2014

In this Update we look at the liability of subcontractors for poor workmanship and whether the head contractor is required to closely monitor their workmanship to avoid liability for negligent work.

New Magistrates Court Practice Direction – Mediation Service

15 July 2014

Mediation is a cost effective way to open discussions between the parties in an effort to reach an agreement of facts or settlement without incurring significant costs during the litigation process.  These discussions are supervised by an unbiased and independent mediator to encourage effective and efficient communication. A new Magistrates Court Practice Direction, issued 14 […]

PPK Willoughby v Eighty Eight Construction; Valuing the works

20 June 2014

A benefit of the claimant contractor in Adjudication is that the adjudicator is not bound by what has been certified by the Superintendent when valuing the works.  However, in PPK Willoughby v Eighty Eight Construction [2014] NSWSC 760 in the NSW Supreme Court, the adjudicator adopted an amount certified by the Superintendent in favour of […]

Romeo v TQM Design and Construct Pty Limited [2013] NSWCA 72

30 April 2013

When parties to a construction contract fall into dispute, and settle those disputes by means of a deed of settlement, is that deed of settlement a construction contract which can found a payment claim under the Security of Payment legislation? In this case the settlement deed proved for an initial payment, and then payment of […]

Romaldi v AIL

30 April 2013

Update:  This decision was overturned on appeal to the Supreme Court.  See Adelaide Interior Linings Pty Ltd v Romaldi Constructions Pty Ltd [2013] SASC 110.  In a surprising decision, the South Australian District Court has given judgment in Romaldi v Adelaide Interior Linings [2013] SADC 39, granting an injunction restraining the enforcement of an adjudicator’s […]

Building Work Contractor’s Act 1995 – Magistrates Court Jurisdiction Threshold

27 November 2012

The Magistrates Court in South Australia has a special jurisdiction under the Building Work Contractor’s Act 1995 not only to order compensation against a builder, but also to require a defaulting builder under a Domestic Building Work Contract to perform remedial work. The conventional wisdom at common law is that injunctions are not granted requiring builders […]

First Tier Rating again from Doyle’s Guide

16 November 2012

Doyle’s Guide is the leading independent guide top law firm in Australia, and its new listings are out. Unlike some other legal guides, Doyle’s does not allow firms to buy entries, and is thus a rather more reliable guide to who is who in the legal world. Fenwick Elliott Grace is again named as one […]

Thiess Pty Ltd v Warren Brothers Earthmoving Pty Ltd & Anor [2012] QCA 276

16 October 2012

The Court of Appeal in Queensland has dismissed an appeal against a first instance finding that the adjudicator did have jurisdiction to decide that work was “construction work” within the meaning of the legislation.

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.

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 […]

Grindley Constructions Pty Ltd v Painting Masters Pty Ltd [2012] NSWSC 234

4 June 2012

One of the several means available to challenge an adjudicator’s determination is to seek an injunction to restrain the claimant from filing an ANA’S certificate in any court. The test here is slightly different from one of the alternatives, such as seeking a declaration that the determination is void. To obtain an interim injunction, the plaintiff merely […]

New South Wales Land and Housing v Clarendon Homes [2012] NSWSC 333

4 June 2012

A decision of an adjudicator survived challenge on a number of grounds. Of particular interest is ground 2: the adjudicator awarded some 20% more than was being claimed.  However, McDougall J found that this error was not fatal because it was the sort of error that was amenable of correction under section 22(5) of the […]