Construction Law Updates
14 August 2019
Fenwick Elliott Grace has recently written a new “Guide to the Building and Construction Industry Security of Payment Act 2009 (“Act”)” and can be downloaded for free.
No. 1901 – 13 May 2019
Introduction The 28 February 2019 decision as to liability for the Lacrosse Tower fires of November 2014 will send shockwaves through the construction industry. The fire was caused by a discarded cigarette butt that ultimately ignited Aluminium Composite Panelling (“ACP”) on the façade of the 21 storey apartment block. The industry has been waiting with […]
No. 1801 – 16 March 2018
In this update we report on two important decisions published by the High Court of Australia in relation to the application of security of payment laws.
No. 1602 – 12 August 2016
This update details changes to ‘unfair contracts’ legislation that will come into effect on 12 November 2016, and the likely impact of those changes to the construction industry.
No. 1601 – 4 February 2016
In this Update we look at timing considerations when deciding to issue a payment claim.
A pre-condition to a valid payment claim issued under the Security of Payment legislation is that it must be issued at a time when a right to issue has arisen.
The issue of timing is surprisingly complex and, given that a failure to satisfy this pre-condition can result in an adjudicator dismissing the claim without any assessment of the substantive merits, we have prepared this update to provide some clarity on the question of timing, and in doing so have referenced and described some key relevant recent cases.
No. 1509 – 27 October 2015
In Update 1509 we examine the balancing act between the builder’s right to rectify its defective work and the owner’s right to insist on the rectification work being done in a particular way. In general, when defective work is found on a completed build, the builder has a right to go back and rectify.
However, this is a right that can be lost by the builder’s conduct, such as a persistent refusal to admit the scale of the problem. Equally, owners can jeopardise their right to claim compensation for work done by others if they unreasonably insist on unnecessary work.
The NSW Supreme Court has recently set out the guiding principles that inform the decisions to be made by parties in this situation.
No. 1507 – 27 August 2015
Adjudication of payment disputes has become commonplace under the Security of Payment legislation now in force across Australia. Sometimes contractors make an error when applying for adjudication and realise that the adjudication will end badly if they continue. In those circumstances, what does the contractor do? Should the contractor withdraw the application or restart the whole process?
A recent decision of the Court of Appeal of the Northern Territory makes clear the position under the Act as it applies to the Territory.
No. 1506 – 27 August 2015
Introduction The commercial construction industry is familiar with the contractual requirement to provide a statutory declaration with progress claims. Most construction contracts require contractors to certify they have paid all the money due to their subcontractors and suppliers in relation to the work they are claiming for before they are entitled to the progress claim. […]
No. 1505 – 24 July 2015
This Update examines the liability of owner builders when they sell their residence following substantial renovations. This decision from the NSW Court of Appeal may be of particular interest given the current popularity of reality TV shows about home renovations. In this case the purchasers of the renovated property suffered massive losses due to substantial hidden defects. Although the purchasers were initially awarded over $1 million at trial, ultimately they were unable to recover any funds. Read on to find out more.
No.1504 – 5 June 2015
A recent NSW Supreme Court decision in Southern Han Breakfast Point Pty Limited v Lewence Construction Pty Limited  NSWSC 502 examines whether an adjudicator has the power to make a determination that the builder is owed a further progress payment under the AS4000-1997 contract after the work has been taken out of its hands.
This decision is likely to have persuasive influence in SA and other States that mirror the NSW legislation and may provide a strategic advantage to principals.
No.1503 – 12 May 2015
Standards Australia has released a draft version of AS11000 intended to merge and replace the suites of contracts related to AS2124:1992 and AS4000:1997. The draft was put together with input from a number of organisations including Austroads, the Australian Procurement and Construction Council, the Australian Institute of Architects, the Civil Contractors Federation of Australia, the […]
No. 1502 – 16 March 2015
This Update deals with the service of documents by electronic methods in the construction industry. While Courts are slowly moving towards the adoption of electronic systems for their own purposes, it appears that systems such as Dropbox or Aconex are not acceptable to the Court when it comes to ensuring that documents have been formally served on another party. While electronic service is convenient, it remains important that the other party has “received” the document.
No. 1501 – 12 February 2015
The Supreme Court of South Australia has recently clarified the requirements of a payment schedule under the Building and Construction Industry (Security of Payment) Act 2009 (SA) in Linke Developments Pty Ltd v 21st Century Developments Pty Ltd  SASC 203.
The case confirms the test to be applied is whether a respondent to a payment claim has provided a payment schedule that includes sufficient particularity so as to enable the claimant to decide whether it wants to pursue its claim or not.
Update No. 1407 – 17 December 2014
In this Update we look at a recent NT Supreme Court review of an adjudicator’s determination as to standby charges for a dredge working on the Marine Supply Base project. Neither party had brought to the attention of the adjudicator the point on which he decided whether the progress payment was due. While the Court said that the adjudicator was entitled to consider the point, it found he had denied natural justice to them by not asking for submissions on it.
No. 1406 – 27 November 2014
Update 1406 looks at a recent decision of the Queensland Supreme Court where a concretor successfully claimed money from a head contractor through adjudication after the subcontract was terminated. The Court was asked to decide whether the adjudicator had made an error. We also look at the SA and NSW legislation on the same point and note a small but significant difference that will probably result in a different outcome.
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.
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.
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.
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.