Contracts
June 14, 2017 10:35 AM | Posted by Allie Flack and Alexandria Hammerton |
A reminder that a contract will be a 'building contract' under the Queensland Building and Construction Commission Act 1991 (Qld) if it contains a small amount of 'building work'. [read more]
May 17, 2017 9:49 AM | Posted by Rahul Bhattacharya |
On 26 April 2017, sections 3, 6 to 13, 14(2), 15 and 59 to 68 of the Building Legislation Amendment (Consumer Protection) Act 2016 (Vic) came into force. These provisions create a new framework for resolving domestic building work disputes by requiring parties to attempt to resolve a dispute through conciliation before they can commence legal proceedings. [read more]
April 19, 2017 2:53 PM | Posted by Richard Crawford and Steph Skevington |
This case affirms the High Court's decision in Southern Han Breakfast Point Pty Ltd (in Liquidation) v Lewence Construction Pty Ltd [2016] HCA 53 (analysed in our Roundup of 2016 security of payment cases) and illustrates some of the difficulties that may arise in practice in applying the outcome of the Southern Han decision. [read more]
March 24, 2017 11:01 AM | Posted by Simon Moses |
Notwithstanding the absence of an express provision in an agreement appointing one party as the trustee of the other party's moneys, where the parties' actions indicate the existence of a trustee/beneficiary relationship, an express or purpose trust will be deemed to exist, the consequence of which is that the trustee party will be deemed to have fiduciary duties to the beneficiary. [read more]
March 17, 2017 12:18 PM | Posted by Simon Moses |
The decision in question is Tzaneros Investments Pty Ltd v Walker Group Constructions Pty Ltd [2016] NSWSC 50. [read more]
March 14, 2017 12:20 PM | Posted by Rebecca Clafton and Riana Cermak |

The Full Court of the Supreme Court of South Australia has followed Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) [2016] NSWCA 379 in deciding that the Building and Construction Industry Security of Payment Act 2009 (SA)  impliedly excludes certiorari on the ground of error of law on the face of the record. This case also confirms that a contract is not void merely by reason of a contractor's failure to disclose his or her bankruptcy in the course of business carried on under another name in breach of the Bankruptcy Act 1966 (Cth), and such circumstances will not lead to an adjudicator lacking jurisdiction under the SA security of payment Act.

The decisions in the Maxcon litigation are a reminder that head contractors should properly investigate the financial standing of subcontractors prior to contract.

[read more]
December 8, 2016 10:13 AM | Posted by Claire Tait and Raz Lovell-Jones |
The court found that in the absence of evidence to the contrary, proof of a contract to carry out building work, coupled with the self-evident fact that the work was carried out, supports the conclusion that the work has been carried out by the builder contracted to do it. [read more]
November 18, 2016 2:44 PM | Posted by Tom Kearney and Sven Svalbe |
This recent Victorian Supreme Court decision considers the circumstances in which the making of a written contractual promise can itself amount to misleading and deceptive conduct.  [read more]
November 18, 2016 10:22 AM | Posted by Saran Bavich |
Questions about contractual construction are capable of determination by experts. Where the contract provides for expert determination of disputes, it should be followed before court proceedings are commenced.  [read more]
November 8, 2016 8:28 AM | Posted by Petrina Macpherson and Sarah Cahill |
The Queensland Court of Appeal has made it clear that equitable defences of lack of benefit and change in position are not available to defeat a claim for reasonable remuneration in a case where work has been performed at the request of another.  [read more]
October 12, 2016 2:35 PM | Posted by Annabelle Healey and Tom Kearney |
An attempt to avoid paying the full amount awarded under an adjudication application by offering partial payment by cheque and stating that depositing of the cheque will constitute acceptance of a settlement offer will be insufficient to indicate that an agreement had been reached that the payment of was to extinguish the adjudicated debt. [read more]
October 7, 2016 11:52 AM | Posted by Andrew Orford and Amy Dunphy |
This case demonstrates how careful drafting of a security clause puts a principal into a good position when it comes time to make a call on a bank guarantee.  [read more]
September 14, 2016 3:45 PM | Posted by M Creedon, P Macpherson & A Hammerton |
A discussion of when rights or claims under a contract will be accrued at the time of termination of the contract.  [read more]
September 8, 2016 10:04 AM | Posted by Amy Ryan |
As a result of Professor Evans' statutory review of the Construction Contracts Act 2004 (WA) the Western Australian State Government is likely to introduce reforms. [read more]
August 30, 2016 7:25 PM | Posted by Amy Ryan |
The Western Australian Government has announced that it is set to introduce new measures to protect subcontractors working on State Government funded projects. [read more]
August 26, 2016 9:33 AM | Posted by Matthew Yee |
The NSW Court of Appeal dismissed an appeal from an owner appellant regarding the wrongful termination of a building contract. This is an appeal of the decision handed down in Champion Homes Sales Pty Limited v DCT Projects Pty Limited [2015] NSWSC 616.
[read more]
August 24, 2016 2:45 PM | Posted by Justin Sadikoen |
Where a tender offer is accepted, issues may arise when considering whether a binding contract has been made.  [read more]
August 10, 2016 10:38 AM | Posted by Imogen Bailey |
When considering a referee's award of damages for breach of statutory warranties under the Home Building Act 1989 (NSW), a referee may award the aggrieved party additional damages to reflect the possibility that alternative solutions capable of achieving compliance with the required standards may not be accepted by the certifying authority.  [read more]
August 5, 2016 10:54 AM | Posted by David Pearce and Sarah Cahill |
The Queensland Court of Appeal refused to grant a mandatory injunction to extend the expiry date of bank guarantees, in circumstances where the applicant would not suffer irreparable harm as a result of such relief being denied. [read more]
August 3, 2016 9:09 AM | Posted by Richard Crawford |
We have received some great feedback from attendees at our recent seminar in Sydney where we looked beyond the contract at who owes who a duty of care in the construction industry. [read more]
July 27, 2016 4:21 PM | Posted by Imogen Bailey |
Whether a mortgagee in possession becomes entitled to the benefit of statutory warranties and/or home warranty insurance under the Act. [read more]
July 15, 2016 2:28 PM | Posted by Sandy Godfrey |
Developers will be required to provide a 2% building bond for defective building works from 1 July 2017 and appoint an independent building inspector prior to being issued with an occupation certificate under sweeping changes to strata laws in NSW that are due to commence on 30 November 2016. [read more]
July 15, 2016 12:30 PM | Posted by Justin Sadikoen |
Parties should consider their intention carefully when defining and referring to the parties to an agreement.  [read more]
June 24, 2016 2:10 PM | Posted by Erasmus Lovell-Jones |
In interpreting the powers granted to a certifier under a settlement deed courts will prefer a construction that advances the aims of the agreement. [read more]
June 15, 2016 6:41 PM | Posted by Petrina Macpherson and Alexandria Hammerton |
A reminder that parties will be held to their contractually agreed dispute resolution procedures without persuasive evidence to justify declining the enforcement of the agreement. [read more]
June 3, 2016 11:39 AM | Posted by Erasmus Lovell-Jones |
The courts will adopt an objective test when determining whether an oral contract has been formed and in determining the content of the express terms of such an agreement. [read more]
May 25, 2016 4:43 PM | Posted by Sandy Godfrey |
Non-contracting owners as successors in title cannot imply warranties into sub-contracts under section 18D(1) of the Home Building Act 1989 (NSW). [read more]
May 25, 2016 10:22 AM | Posted by Andrew Orford |
Queensland Supreme Court granted an injunction preventing a contractor from pursuing part of its adjudication application under the Building and Construction Industry Payments Act 2004 (Qld), on grounds of 'Anshun' estoppel. [read more]
May 11, 2016 9:47 AM | Posted by Matthew Yee |
Unless expressly stated otherwise, an assignment of warranties may give assignees the benefit of rights in respect of breaches arising before the date of assignment.  [read more]
May 4, 2016 3:12 PM | Posted by Erasmus Lovell-Jones |
In circumstances where a defendant has failed to demonstrate either that they have a defence to a claim or an arguable case to resist such a claim the applicant nevertheless bears the evidentiary burden of proving the quantum of liability. [read more]
May 2, 2016 2:40 PM | Posted by Petra Kolovos and Rebecca Dickson |
The giving of a statutory declaration about the payment of workers and subcontractors is not the provision of a professional services and is not caught by a professional services exclusion in a directors and officers insurance policy. [read more]
April 21, 2016 10:37 AM | Posted by Matthew Yee |
Building contract wrongfully terminated on basis of alleged failure to comply with contractual requirement. Unable to rely on contractual requirement once building works commenced. [read more]
April 20, 2016 12:41 PM | Posted by Tara Moffat |
The WA courts have confirmed the interim nature of adjudication determinations do not displace the contractual rights to enforce security. [read more]
April 13, 2016 12:48 PM | Posted by Stephaine Skevington |
For the purpose of determining when a limitation period commenced, the NSW courts found in a recent case that the construction works were completed when the final occupation completion inspection took place.  [read more]
March 18, 2016 10:42 AM | Posted by Justin Sadikoen |
Where a claim against one defendant remains and all claims against other defendants are resolved, liability is apportioned by determining the culpability and causal impact of each wrongdoer. [read more]
February 24, 2016 12:20 PM | Posted by Yash Janakan and Stephaine Skevington |
Contractual parties' conduct can affect how actions taken pursuant to a contract are interpreted by the courts. [read more]
February 22, 2016 1:17 PM | Posted by Yash Janakan and David Bell |
An electronic signature applied by someone else is not considered a valid ratification of a contract in the absence of intention to authorise [read more]
February 19, 2016 3:43 PM | Posted by Simon Moses |
Off-site goods held by a subcontractor on behalf of the contractor for a term of one year or more may constitute a PPS Lease.  [read more]
February 19, 2016 1:37 PM | Posted by Imogen Bailey and Yash Janakan |
Pre-contractual conduct cannot be used for the purpose of clarifying terms of an agreement in the presence of an 'entire agreement' clause, however post-contractual conduct may be used to clarify the identity of contracting parties to an agreement.  [read more]
February 19, 2016 10:13 AM | Posted by Yash Janakan |
If an existing debt is expressly acknowledged, then clauses requiring its payment in the future provided certain conditions are not met will not be penal. [read more]
January 13, 2016 12:30 PM | Posted by Andrew Orford and Lauren Crome |
The Qld Court of Appeal confirmed that temporary works were so closely connected to the construction of a jetty and wharf, that on a broad and practical interpretation, the works were excluded from the operation of the QBCC Act. [read more]
December 23, 2015 10:11 AM | Posted by Jennifer McVeigh and Lachlan Jolly |
In AJ Lucas Operations Pty Ltd v Gladstone Area Water Board & Anor [2015] QCA 287, the Queensland Court of Appeal held that a party which demonstrates an objective intention to be bound by the terms of a deed cannot rely on technical arguments to escape its obligations. [read more]
December 16, 2015 2:00 PM | Posted by Allie Ford and Lachlan Jolly |
In Christian Education Ministries – Qld Ltd v Thomson Adsett Pty Ltd [2015] QDC 292, the court held that an architectural firm was liable for negligence and breach of contract as it failed to follow the client's instructions. The case highlights the inherent risk of poor communication and record keeping. [read more]
December 7, 2015 2:22 PM | Posted by Andrew Orford and Laura MacLeod |
November 30, 2015 11:08 AM | Posted by Jennifer McVeigh and Lauren Crome |
Read our analysis of the Qld Court of Appeal decision in Ryan v Worthington [2015] QCA 201. [read more]
November 25, 2015 11:03 AM | Posted by Soo-Kheng Chia |
November 20, 2015 11:28 AM | Posted by Jennifer McVeigh and Lachlan Jolly |
In Nichols v Earth Spirit Home Pty Ltd [2015] QCA 219, the court held that a builder who commits an offence pursuant to Section 67G of the Queensland Building and Construction Commission Act 1991 (Qld) by entering an oral building contract, will not be precluded from enforcing the contract because of that contravention. [read more]
November 11, 2015 12:11 PM | Posted by Simon Moses |
Intention must be determined objectively however inferences can be drawn from what the parties said or did. [read more]
November 9, 2015 10:13 AM | Posted by Jennifer McVeigh and Lachlan Jolly |
In Surfstone Pty Ltd & Anor v Morgan Consulting Engineers Pty Ltd [2015] QSC 290 the court included terms by reference, including a term limiting liability. [read more]
November 6, 2015 11:36 AM | Posted by Simon Moses |
A party can only abandon its initial position and adopt the opposite stance in later proceedings provided that, in doing so, they can show that they have not acted in bad faith, acquiesced or caused delay. [read more]
November 4, 2015 2:46 PM | Posted by Simon Moses |
The existence of a reference date to support a payment claim is not a jurisdictional fact capable of appeal as it is not an essential pre-condition for the making of a valid payment claim. [read more]
October 19, 2015 3:22 PM | Posted by Nicole Green, Simon Ralton and Simon Moses |

Thank you to all who were able to attend the Projects, Infrastructure and Construction breakfast seminar in our Sydney office last Thursday, 15 October 2015.

[read more]
September 4, 2015 3:13 PM | Posted by Julie Whitehead and Vanessa Stokell |
Read our analysis of the Qld Supreme Court decision in IPN Medical Centres Pty Ltd v Van Houten & Anor [2015] QSC 204. [read more]
September 2, 2015 3:05 PM | Posted by Andrew Orford and Vanessa Stokell |
Read our analysis of the Qld Supreme Court decision in BRB Modular Pty Ltd v AWX Constructions Pty Ltd & Ors [2015] QSC 218. [read more]
August 4, 2015 1:50 PM | Posted by Hugo Wilesmith |
The NSW Supreme Court has refused to refer a contractual dispute to arbitration where arbitration could not be required under the dispute resolution clause. [read more]
June 29, 2015 11:11 AM | Posted by Soo-Kheng Chia |
June 2015 saw legislative changes in Queensland, court decisions on indemnity costs and security of payment and examples of VCAT decisions.  Download the omnibus of these developments [read more]
June 25, 2015 9:42 AM | Posted by Andrew Orford and Laura MacLeod |
Read our analysis of the Qld Supreme Court decision in Monadelphous Engineering and Ors v Wiggins Island Coal Export Terminal [2015] QSC 160. [read more]
June 23, 2015 1:48 PM | Posted by Phoebe Roberts |
Read our analysis of the Victorian Supreme Court's decision in Rilgar Nominees Pty Ltd v BHA Holdings Pty Ltd [2014] VSC 632. [read more]
June 10, 2015 12:33 PM | Posted by Michael Creedon and Louis Zetlin |
The Queensland Building and Construction Commission will now pursue subcontractors responsible for defective building work. [read more]
June 1, 2015 2:23 PM | Posted by Vanessa Stokell |
Read our analysis of the Qld Supreme Court decision in Coleman v Prentice & Anor [2015] QSC 118 [read more]
May 21, 2015 10:16 AM | Posted by Alison Sewell and Phoebe Roberts |
The Victorian Court of Appeal has given guidance in Sugar Australia Pty Ltd v Lend Lease Services Pty Ltd [2015] VSCA 98 [read more]
May 20, 2015 2:59 PM | Posted by Vanessa Stokell |
Read our analysis of the Qld Court of Appeal decision in Mackay Sugar Ltd & Anor v Quadrio [2015] QCA 41 [read more]
May 9, 2015 10:24 AM | Posted by Caleb Gittins |
Read our analysis of Southern Han Breakfast Point Pty Limited v Lewence Construction Pty Limited [2015] NSWSC 502. [read more]
April 8, 2015 11:38 AM | Posted by Claire Tait and Hugo Wilesmith |
Read our analysis of New South Wales Land and Housing Corporation v Australia and New Zealand Banking Group Limited [2015] NSWSC 176. [read more]
April 2, 2015 10:34 AM | Posted by Vanessa Stokell |
Read our analysis of Barry & Anor v Queensland Building and Construction Commission [2015] QSC 50 [read more]
March 30, 2015 12:10 PM | Posted by Soo-Kheng Chia |
In March 2015 an appeal to a 2014 WA security of payment case was heard among other court decisions in NSW, Vic, Queensland and WA. Download the omnibus of these developments. [read more]
February 25, 2015 11:20 AM | Posted by Ellen Bevan |
Read our analysis of the Qld Supreme Court decision in Baldwin & Anor v Icon Energy Ltd & Anor [2015] QSC 12 [read more]
February 24, 2015 11:24 AM | Posted by Laura MacLeod |
Read our analysis of Saipem Australia Pty Ltd v GLNG Operations Pty Ltd [2014] QSC 310 [read more]
February 20, 2015 11:50 AM | Posted by Soo-Kheng Chia |
Download our latest summary of developments in the law and recent cases [read more]
December 16, 2014 12:24 PM | Posted by Samuel Cho |
A recent English High Court decision shows the importance of a clear definition. [read more]
December 3, 2014 4:57 PM | Posted by Soo-Kheng Chia |
Download our latest summary of developments in the law and recent cases [read more]
November 3, 2014 7:07 PM | Posted by Soo-Kheng Chia |
Download our latest summary of developments in the law and recent cases [read more]
October 9, 2014 11:26 AM | Posted by Richard Crawford |
High Court says no duty of care owed by builders to developers. [read more]
September 30, 2014 3:18 PM | Posted by Soo-Kheng Chia |
Download our latest summary of developments in the law and recent cases [read more]
September 5, 2014 8:51 AM | Posted by Cameron Ross |
Analysis of, and practical tips to deal with, the uncertainty in the law [read more]
August 13, 2014 2:44 PM | Posted by Robert Antonini |
We have received some great feedback from attendees to the Perth Seminar [read more]
August 12, 2014 11:04 AM | Posted by Pamela Jack |
Read our top tips on the provision of security for performance, a common practice in the construction industry [read more]
August 7, 2014 12:40 PM | Posted by Peter Wood |
The Victorian Court of Appeal held that the Building Act's 10yr limit for building actions overrides the 6yr limit in the Limitation of Actions Act [read more]
July 25, 2014 2:59 PM | Posted by Soo-Kheng Chia |
Download our latest summary of developments in the law and recent cases [read more]
July 23, 2014 3:56 PM | Posted by Cameron Ross and Sam White |
'Best', 'all reasonable' and 'reasonable' endeavours - what do they mean? [read more]
June 30, 2014 11:07 AM | Posted by Soo-Kheng Chia |
Download our latest summary of developments in the law and recent cases [read more]
May 22, 2014 2:03 PM | Posted by Richard Crawford |
Download our useful guide [read more]
May 22, 2014 11:25 AM | Posted by Soo-Kheng Chia |
Download our latest summary of developments in the law and recent cases [read more]
April 11, 2014 10:03 AM | Posted by Soo-Kheng Chia |
Download our latest summary of developments in the law and recent cases [read more]
March 12, 2014 5:10 PM | Posted by Soo-Kheng Chia |
Download our summary of developments in the law and recent cases [read more]
February 11, 2014 2:54 PM | Posted by Richard Crawford |
The new edition of our comprehensive review of SoP cases from around Australia is now available [read more]