Disputes
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]
May 17, 2017 9:01 AM | Posted by Sarah Ferrett and Ben Garvey |
This case confirms the position that once the Queensland Building and Construction Commission initiates recovery proceedings for 'payment on a claim under the insurance scheme', it will not be open to a builder to attempt to seek a merits review of the antecedent decision to make payment under the insurance scheme. [read more]
April 19, 2017 10:35 AM | Posted by Renae Carrigg and Ben Garvey |
This Queensland case restates the principles of nuisance applicable to a statutory authority and confirms that landowners cannot escape liability for interference caused by a use of their land which, even though reasonable at first instance, becomes unreasonable over time. [read more]
March 20, 2017 11:36 AM | Posted by Tom Kearney and Alyssa Dixon |
Money paid into a designated trust account under the section 28B(6) of the Building and Construction Industry Security of Payments Act 2002 (Vic) may be used 'to satisfy the claimant's entitlements' under section 28F(2) of that Act, even when there is no valid review of an adjudication determination under section 28B.  [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]
February 14, 2017 4:18 PM | Posted by Richard Crawford |
Our comprehensive review of the key security of payment cases in 2016 from around Australia is now available. [read more]
December 21, 2016 12:57 PM | Posted by Richard Crawford and Michelle Knight |
The High Court confirms that the existence of a reference date is a precondition to the making of a valid payment claim under the NSW security of payment legislation.  [read more]
December 14, 2016 2:22 PM | Posted by Richard Crawford |
Consult our guide to security of payment time limits for the relevant information necessary to protect your organisation to act in respect of any claim lodged under the security of payment framework over the year-end period.  [read more]
December 14, 2016 11:24 AM | Posted by Emma Cavanagh |
The Construction Contracts Amendment Bill 2016 was passed by Parliament on 22 November 2016 and will, for the most part, take effect from tomorrow, 15 December 2016. [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]
September 16, 2016 12:21 PM | Posted by Michelle Knight and Richard Crawford |
A court may prevent enforcement of an adjudication determination where it established that the beneficiary of that determination is insolvent or at risk of going insolvent. [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]
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 12:02 PM | Posted by Petrina Macpherson and Sarah Cahill |
The Supreme Court of Queensland rejected an application for indemnity costs in circumstances where three offers had been made, because the offers were reasonably and prudently rejected.  [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]
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]
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 20, 2016 10:54 AM | Posted by Jennifer McVeigh and Anne Crittall |
A useful insight into the apportionment of the adjudicator's fees where the adjudicator errs and part of the decision is set aside. [read more]
June 20, 2016 10:22 AM | Posted by Jennifer McVeigh and Anne Crittall |
Confirmation that an adjudicator's failure to include reasons for the decision will amount to jurisdictional error and invalidate that portion of the decision.  [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 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]
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]
March 23, 2016 2:12 PM | Posted by Jennifer McVeigh and Anne Crittall |
A practical insight into the difficulty of dealing with a noisy industrial neighbour. [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 18, 2016 3:29 PM | Posted by Jeanette Barbaro |
The Victorian Building Authority's  External Wall Cladding Audit Report, prompted by the Lacrosse building fire in November 2014 has put the building industry on notice [read more]
December 16, 2015 5:38 PM | Posted by Richard Crawford |
Download our useful guide to preparing for security of payment claims served during the holiday period. [read more]
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 23, 2015 10:02 AM | Posted by Peter Wood |
On 13 November, the Supreme Court of Victoria handed down its decision in SSC Plenty Road v Construction Engineering (Aust) [2015] VSC 631 which will have significant repercussions in respect of Security of Payment Act claims and the drafting of dispute resolution clauses in construction contracts. [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 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]
November 4, 2015 10:18 AM | Posted by Laura MacLeod and Lauren Crome |
Read our analysis of the Federal Court of Australia decision in Ultrapetrol SA v Jindal Steel & Power (Mauritius) Ltd [2015] FCA 1091. [read more]
September 17, 2015 2:32 PM | Posted by Abounader, Brie |
There is continuing uncertainty in Australia as to when surrounding circumstances can be used to interpret a contract. Australian courts have been reluctant to identify with precision when surrounding circumstances can be taken into account. The critical question is whether the courts should consider surrounding circumstances in every case, or only where the meaning of the contract is ambiguous. [read more]
September 14, 2015 4:13 PM | Posted by Michael Creedon and Louis Zetlin |
Building plans created by an architect may attract copyright protection, unless that architect or designer engaged in a high level of collaboration. Courts who find that a party has breached copyright by 'copying' a house are willing to grant creative remedies to protect the design. [read more]
September 14, 2015 1:24 PM | Posted by Louis Zetlin and Lana Ristic |
A contractor may resist recovery by the QBCC for a payment made under the statutory insurance scheme where it can establish that the QBCC made a payment outside of the scope of the insurance policy. [read more]
September 2, 2015 12:49 PM | Posted by Luke Trimarchi and Vanessa Stokell |
Read our analysis of the Qld Supreme Court decision in Re: Marveldale Pty Ltd [2015] QSC 208. [read more]
August 28, 2015 10:39 AM | Posted by Soo-Kheng Chia |
Download this edition of Construction Law Update for developments in New South Wales, Queensland and Victoria. [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]
July 3, 2015 10:56 AM | Posted by Daniel Walford |
In a judgment delivered on 18 June 2015, Riethmuller J ordered indemnity costs in favour of the applicants on the question of costs arising out of Longmuir & Anor v Konstantopoulos [2014] FCCA 162. [read more]
July 1, 2015 10:02 AM | Posted by Christian Camilleri |
Courts have the power to review adjudication determinations under the Victorian Security of Payment legislation where jurisdictional error exists.  A privative provision will not override the court's inherent power as a supervisory body. [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 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 19, 2015 2:33 PM | Posted by Elizabeth Schuster |
A third party can be joined in a domestic building dispute in VCAT where the claim against the joined party has a strong nexus to the original dispute. [read more]
June 17, 2015 3:41 PM | Posted by Steven Yip |
Steven Yip authored the chapter on 'The proceedings: preparation' in this new Guide. [read more]
May 29, 2015 9:23 AM | Posted by Soo-Kheng Chia |
In May 2015 the security of payment legislation in NSW changed and there were a plethora of interesting decisions in Victoria. Download the omnibus of these developments. [read more]
May 27, 2015 3:10 PM | Posted by Chris Hey |
VCAT has awarded costs where claim is unmeritorious or a party unreasonably rejects a settlement offer [read more]
May 26, 2015 11:23 AM | Posted by Sarah Southwell |
Whilst confined to the facts of the case, the Supreme Court of Victoria stated what the test is not in this decision. [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]
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]
March 17, 2015 11:31 AM | Posted by Tom Johnstone |
What might the court decide when a corporate trustee is the plaintiff [read more]
March 4, 2015 11:08 AM | Posted by Daniel Walford |
The case also includes observations on the nature of VCAT hearings [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 23, 2015 2:14 PM | Posted by Ellen Bevan |
Read our analysis of Chandra v Queensland Building and Construction Commission [2014] QCA 335 [read more]
February 23, 2015 11:43 AM | Posted by Daniel Walford |
The court has clarified the extent of the powers of the Building Appeals Board in relation to setting aside and invalidating a private building surveyor's determinations [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 12, 2014 12:07 PM | Posted by Richard Crawford |
Courts may consider attempts in a subsequent adjudication to improve the quality of evidence submitted in a prior adjudication an abuse of the NSW SOP Act. [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]
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]