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.

Fenwick Elliott Grace Awarded First Tier Rating by Doyle’s Guide

14 August 2014

Doyle’s Guide is the leading independent guide to the top law firms in Australia.  Unlike some other legal guides, Doyle’s does not allow firms to buy entries, and is therefore a more reliable guide to who is who in the legal world.  The list of best firms and lawyers is compiled on an independent basis […]

Fenwick Elliott Grace opens Darwin Office

13 August 2014

To better service our growing Northern Territory practice, we have opened an office in Darwin. Our Darwin Office contact details are: Paspalis Centrepoint Building Level 1, 48-50 Smith Street, Darwin NT 0800 Telephone: 08 8943 0698, Fax: 08 8941 0848                

Adjudication Anyone?

No. 1305 – 17 September 2013

Update 1305 reports on Romaldi Constructions’ ongoing battle with its subcontractor over an adjudication.
Romaldi applied to the District Court after its subcontractor obtained a determination from an adjudicator that it should pay money to the subcontractor. The District Court made orders that Romaldi did not have to pay the money to the subcontractor and instead could pay it into Court. The Court was then going to decide who should get the money. The subcontractor appealed to the Supreme Court and Justice Anderson has recently handed down the decision we report on.
Justice Anderson’s decision has wide implications for subcontractors and head contractors as to the power of the new adjudication regime and in effect restores faith in the new regime. We have recently learned that Romaldi has appealed the decision of Justice Blue to the Full Court of the Supreme Court of South Australia.

Unjust and Biased?

No. 1306 – 29 August 2013

Construction Law Update 1306 is the first in a series of Updates on recent Court decisions likely to impact on the operation of South Australia’s new adjudication legislation. Fenwick Elliott Grace acted for Built Environs in the first Supreme Court challenge to an adjudicator’s determination on the basis of a breach of natural justice, bias and other grounds. Justice Blue has carefully examined the Protectavale case and found that cumulative progress claims are permissible where the contract allows for them. The Court’s decision shows that consultants with links to nominating authorities must look for potential conflicts of interest when they advise clients.

When is expert evidence inadmissible?

No. 1304 – 14 August 2013

Construction Law Update 1304 reports on how expert evidence is to be presented at trial. Generally, evidence at trial must be given by persons who saw or heard what happened and their opinions are not accepted by the Court. An exception to this rule is made when the Court allows an expert witness to give evidence. However, in order to fall within the exception, the expert’s report and evidence must comply with the rules of Court. Update 1304 looks at some recent cases where expert evidence has been disallowed due to failures to comply with the rules.

Calling on the guarantee

No. 1303 – 28 June 2013

In our current Update No. 1303, we report on a recent Federal Court decision dealing with the limited bases upon which a Court will prevent a principal from calling on a bank guarantee in the context of a construction contract.

Consequential loss: a new approach

No. 1302 – 20 May 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 have previously reported on the nature of the subcontract and on the obligation of a head contractor to provide a detailed works program to the subcontractor. In this Update, we discuss a new approach to the classification of compensation for breaches of contract.

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 […]

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, […]

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.

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.

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.