Update No. 2003 – 9 November 2020
Disputes about variation claims are a common source of construction disputes. In this Update we examine a recent decision of the District Court of South Australia highlighting the need for parties to read and carefully follow the terms of their contract when variations arise.
No. 2002 – 29 September 2020
Electronic communication has become the new normal, particularly since the arrival of COVID-19. The legal profession has been slow to accept the new normal, but recent months have accelerated that progress.
In this Update we examine a recent South Australian Supreme Court case dealing with the effectiveness of electronic communication in the context of the strict requirements of the Building and Construction Industry Security of Payment Act 2009 (SA).
No. 2001 – 23 January 2020
Introduction The recent High Court decision in Mann v Paterson will raise as many questions as the answers it provides. Background Mr & Mrs Mann (“Mann“) owned land in Blackburn, Melbourne. They entered into a contract with Paterson Constructions Pty Ltd (“Paterson“) to build two double storey apartments (“Units“). The contract sum was $971,000 and the […]
No. 1905 – 21 October 2019
Construction Law Update No. 1905 discusses a recent decision of the Full Court of the Supreme Court of South Australia and shows the ripple effect that can emanate from disgruntled clients and a relatively modest home renovation that went awry. The case demonstrates how a lack of attention to the terms of the contract can result in a long and costly dispute.
No. 1904 – 2 September 2019
Introduction When a dispute over defective building work turns ugly, the owner is sometimes tempted to refuse the builder the opportunity of returning to rectify the defects. There are risks in this course. This Update considers a recent NSW Supreme Court decision on the topic.  If an owner engages a new builder to carry […]
No. 1903 – 14 August 2019
Introduction In the last few months, several South Australian residential building companies have collapsed, leaving behind a trail of debts. Behind every collapse is concealed the pain of the suppliers and subbies. The devastating financial impact is likely to be felt for years to come. None of this is new. For decades, builders have come […]
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. 1901 – 1 April 2019
Introduction This Update considers the law relating to Superintendents. It raises an interesting question as to whether the conduct of a party who fails to follow the contract can have the flow on effect of varying their rights under the contract. Superintendents Many commercial construction contracts provide for the Principal to appoint a Superintendent. The Superintendent has duties akin to those of an umpire who is to ensure the Contractor and the Principal play fair when constructing the […]
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.
11 January 2017
Today the High Court delivered its first judgment in respect of the security of payment and adjudication regime (Southern Han Breakfast Point Pty Ltd (in Liquidation) v Lewence Construction Pty Ltd  HCA 52). Two things come out of the decision: The existence of a ‘reference date’ is a jurisdictional precondition to making a payment […]
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.
17 May 2016
In 2016, Fenwick Elliott Grace has again been awarded a First Tier Rating by Doyle’s Guide in Leading Adelaide Construction Law Firms. The 2016 listing details firms practising within the areas of Construction, Infrastructure and Major Projects matters in the South Australian legal market who have been identified by clients and peers for their expertise […]
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.
12 October 2015
Although the NT security of payment Act is largely modelled on WA’s Construction Contracts Act and operates identically in many respects, there are a number of notable differences. One of them is that under the NT Act there is a straight forward right to enforce an adjudication determination as a judgment debt, whereas under the […]
30 September 2015
It goes without saying that communication by email is fundamental and ubiquitous to commercial life today. The value of email when dealing with the short timeframes prescribed by security of payment legislation is obvious. However, users of the adjudication system are often advised out of a prudent abundance of caution to serve documents such as […]
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. 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.