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Government Targets “Phoenix Operators” with Direct GST Payment - May 2017

To close the gap on “phoenix operators” and property developers that do not remit GST to the ATO following the completion and sale of their property development, the Federal Government has announced that it will implement a measure which will require purchasers to pay GST directly to the ATO. Senior Associate, Adam Rinaldi looks at the issues associated with the implementation of this measure and summarises the potential impact that other measures announced in the Budget will likely have on property related transactions and the property industry.

To Litigate Or Not To Litigate? That Is The Question - May 2017

In the recent decision of Hooks Enterprises Pty Ltd v Sonnenberg Pty Ltd [2017] QSC 69, the Supreme Court of Queensland held that parties must comply with a dispute resolution provision even where compliance is not expressed to be a condition precedent to litigation.  Andrew MacGillivray, Senior Associate and Denise Burloff, Law Graduate discuss.

Adjudication Submissions - Keep Them Simple! - May 2017

The Supreme Court of New South Wales, in the recent case of Future Developments Pty Ltd v TJ & RF Fordham Pty Ltd [2017] NSWSC 232, provides parties to an adjudication with a subtle warning to ensure adjudication submissions are concise and logical.  Andrew MacGillivray, Senior Associate discusses. 

Project Bank Accounts: Do They Cheque Out? - Apr 2017

The Queensland Government appears set to introduce project bank accounts (PBAs) on Queensland construction projects, initially on a pilot basis for government projects of a value between $1 million and $10 million but excluding “engineering projects” and residential construction.

While it is difficult to argue the ambition of setting Queensland’s construction industry up for long-term growth” and making sure people get paid in-full, on-time and every time”, the industry is yet to be provided with clear detail as to how these ambitions might be achieved.

Ted Williams, Partner, and Marya Atmeh, Lawyer, discuss the PBA concept, identify key concerns and suggest practical steps which may be taken to prepare for the possibility of their introduction.

Bank Guarantees and Insurance Bonds in Construction Contracts: What’s the difference? Are they as good as cash? - Apr 2017

Yes, if the judge says so, but it depends upon which judge is allocated to make the decision and on subtleties of language in the underlying contract and whether the judge thinks the beneficiary is acting unfairly.” [1] 

This article covers the practical differences between these different forms of security and explores circumstances by which a call on security may be prevented. Ted Williams, Partner and Marya Atmeh, Lawyer discuss.

Reference Date? What reference date? - Apr 2017

In the recent decision of Fairfield City Council v Abergeldie Contractors Pty Ltd [2017] NSWSC 166, the New South Wales Supreme Court considered whether a reference date was available to a claimant under a Construction Contract, entitling it to make a claim and utilise the Building and Construction Industry Security of Payment Act 1999 (NSW) (Act). Andrew MacGillivray, Senior Associate discusses the case.

Reasonable endeavours versus best endeavours - Apr 2017

As we all know, the terms “reasonable endeavours” and “best endeavours” are commonly used terms in construction contacting, and are also used as an alternative to “must” or “shall”, which requires a party’s mandatory compliance. It is also common place for a party to use the terms “to use reasonable or best endeavours” to limit strict compliance with the Contract.  In reality, the real difference in the standard imposed by these terms may be surprising to parties whom believe that merely attempting to satisfy the obligation is sufficient. Andrew MacGillivray, Senior Associate and Denise Burloff, Law Graduate discuss.

Delivery of a USB is not valid service under SOP - Mar 2017

The New South Wales Supreme Court recently decided that delivery alone of an adjudication application by a USB stick is not valid service under the Building and Construction Industry Security of Payment Act 1999 (NSW) (Act).  Andrew MacGillivray, Senior Associate discusses the case and the key lessons.

To stay the enforcement of a decision under the SOP regime – One must move quickly - Mar 2017

In the recent decision of Atlas Construction Group Pty Limited v Fitz Jersey Pty Limited [2017] NSWSC 72, the NSW Supreme Court determined that where a respondent to an adjudication decision files for a review of the decision, but fails to formally (or by agreement) stay the enforcement of that decision, the Court is unlikely to interfere.  Andrew MacGillivray, Senior Associate discusses the case and lessons learned.

Security of Payment Update: Mediation clause found not to be a ‘method of resolving disputes’ - May 2016

The Court of Appeal has today clarified that a contractual provision mandating attendance at mediation prior to litigation is not a ‘method of resolving disputes’ for the purpose of s10A(3)(d)(ii) of the Building and Construction Industry Security of Payment Act 2002 (Vic) (Act).

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