Papers and Articles

Rethinking Adversarialism and Embracing Intermediate Systems

9 December 2011

Rethinking Adversarialism and Embracing Intermediate Systems Robert Fenwick Elliott This paper was given as a keynote address at the Society of Construction Law Annual Conference in Brisbane in August 2011.  Other keynote speakers were John Hinchey from the USA, Professor Colin Wall from Hong Kong and Sir Lawrence Street.   The paper is as follows: […]

Procedural Changes to Building and Construction Law in South Australia

29 June 2011

This paper deals with three procedural matters in relation to building and construction disputes in South Australia: the recent interest in taking cases to the Federal Court instead of the State courts; a recap on the Worker’s Liens Act; and an update on the Building & Construction Industry (Security of Payment) Act 2009, and a preview of the challenges that practitioners will face when the legislation comes into operation with effect from 9 December 2011.

Implications of Misrepresentation, Trade Practices & Fair Trading Acts in Contracting

20 December 2010

Implications of Misrepresentation, Trade Practices & Fair Trading Acts in Contracting and Adjudication Process & Security of Payments Legislation – Contract Management; University of Adelaide, 8th December 2010 – Robert Fenwick Elliott

The Termination of Contracts for Breach

29 October 2010

An innocent party’s right to terminate a contract arises from a particular type of breach of contract by a defaulter. The factual matrix of the breach and the nature of the term breached in each case inform the innocent as to whether the right has arisen. In this paper I have used the term “the innocent” to describe the party who is seeking to terminate and the word “the defaulter” to describe the other party to the contract.

Towards Harmonisation of Construction Industry Payment Legislation

29 May 2010

This article considers the success of the two distinct construction industry payment legislative models operating in Australia – “East Coast” and “West Coast” – in achieving their objective of improving cash flow throughout the construction industry.

Drafting Building Contracts – Key Issues

24 November 2009

Construction as a way to make a living carries more than its fair share of risk. Margins are low and uncertainties are high; any one of a number of unknowns can wipe out all of the profit on a job for the contractor or lead to huge cost increases for the owner party.

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.

Natural Justice in the West

27 October 2007

It is perhaps surprising that one of the rather rare decisions on the Western AustralianConstruction Contracts Act 2004 should have come, not from a Western Australian Court, but from the Local Court of New South Wales. But, that is what happened in Ace Constructions & Rigging Pty Ltd v ECR International Pty Ltd.

Adjudication Down Under: A Survey of the Adjudication Legislation in Australia

11 June 2007

The purpose of this paper is to consider the impact of adjudication in Australia, and in particular to consider what light the Australian experience might shed on the process, and how it should be encouraged to develop.

10 Days in Utopia

10 June 2007

The following paper was delivered by Robert Fenwick Elliott at IAMA’s Annual Conference held in Glenelg on 2nd June 2007.

Building and Construction Industry Adjudication – The UK Experience

15 December 2006

In its modern form, adjudication was developed in a limited contractual form in the UK and receiving attention from the courts from the 1980s – the standard forms of UK subcontracts contained a paper-only system of resolving disputes about main contractor set-off against sub-contractor payments. The system was reasonably successful within its limited ambit notwithstanding a lack of support from the Court of Appeal.

Construction of contract – estimate not treated as creating fixed price

12 July 2006

Disputes often arise as to what sort of construction contract the parties have entered into. This article discusses the various contract options and their legal implications, and references the Kyren v Built Projects case.