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Unfair Terms In The Construction Industry | First Judicial Consideration - Nov 2017

It has now been one year since the ‘unfair term’ provisions contained in the Australian Consumer Law came into effect.  Given that standard form contracts are commonplace in the construction industry, it is important that contractors and suppliers remain aware of their potential effects.

Andrew MacGillivray, Senior Associate and Denise Burloff, Law Graduate discuss.

A New Month, A New ‘Non-Conforming Building Products’ Regime - Nov 2017

On 24 August 2017, the Queensland Government passed amendments to the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) which created a new regime to address ‘non-conforming building products’ and amended reporting and investigative requirements regarding work health and safety matters.  These changes and accompanying regulation took effect on 1 November 2017.[1] 

In this article, Andrew MacGillivray, Senior Associate and Marya Atmeh, Lawyer, provide an overview of the changes now in force.

 

How To Draft An Enforceable Liquidated Damages Clause - Oct 2017

As liquidated damages clauses are essential to compensate principals to construction contracts, it is important that they are drafted with proper consideration and are ultimately enforceable.  Andrew MacGillivray, Senior Associate and Denise Burloff, Law Graduate discuss the application of the ‘penalties doctrine’ to liquidated damages clauses in construction contracts.

Factoring and Security of Payment - Sep 2017

Who would have thought that the ubiquitous factoring agreement could become so controversial?  Few would dispute that cash-flow is the lifeblood of the construction industry and that factoring is a popular way to maintain it.  However, like most financial products, factoring agreements present complexities and at times surprises, one of which was recently before the Supreme Court in the decision of Quickway Constructions Pty Ltd v Electrical Energy Pty Ltd.[1]

Daniel Fitzpatickspecial counsel, discusses the controversial factoring agreement.
 

Construction Payment Regimes To Change In Queensland - Aug 2017

The Queensland Government’s introduction of the Building Industry Fairness (Security of Payment) Bill 2017 (Bill) seeks to make significant changes to the mechanisms for payment in the construction industry, through establishing a new Act that incorporates a number of new and old regimes.  Andrew MacGillivray, Senior Associate and Denise, Burloff, Law Graduate discuss the key changes

The significant changes are as follows:

Determining the date of practical completion: Abergeldie Contractors Pty Ltd v Fairfield City Council - Jul 2017

The recent decision in Abergeldie Contractors Pty Ltd v Fairfield City Council [2017] NSWCA 113 concerned the identification of the date of practical completion under cl 34.6 of the AS4000 standard form contract but will have application to other forms of contracts as well.  The case involved the review of an adjudicator’s decision which was accepted at first instance by the trial judge. 

The Court relevantly found that the date of practical completion was the date on which the certificate of practical completion was issued.  The Court rejected the respondent’s argument that the date of practical completion was the date specified in the certificate as to when practical completion had been achieved.  As such the payment claim was found by the Court to be valid. Megan Calder, Partner and Emer Sheridan, Law Clerk discuss.
 

Answer The Question! This Is Not A Second Bite At The Cherry - Jul 2017

Under Australia’s various security of payment legislation (SOP Act), an adjudicator is permitted to request further written submissions from either party on specific issues or questions of law, to which each party must be given an opportunity to respond. 

Adjudicator’s are only permitted to consider written submissions that have been ‘duly made’ by the parties in support of their payment claim or payment schedule, and to consider submissions not ‘duly made’ could lead their decision into reviewable error. 

Andrew MacGillivray, Senior Associate and Denise Burloff, Law Graduate discuss.

Statutory declarations do matter - Jun 2017

Statutory declarations are often used in the building industry, although the truth of the statements in them is rarely tested. In the recent decision of 470 St Kilda Road Pty Ltd v Robinson [2017] FCA 597, the Federal Court of Australia imposed personal liability on a director for making a false statement in a statutory declaration accompanying a payment claim under the Building and Construction Industry Security of Payment Act. Megan Calder, Partner and Jeremy Chan, Lawyer discuss.

Warning! Wait for your reference date - Jun 2017

The Supreme Court of New South Wales in Regal Consulting Services Pty Ltd v All Seasons Air Pty Ltd [2017] NSWSC 613 recently confirmed that a payment claim will only be valid (under the SOP) if it is submitted on or after the reference date.  A provision in a construction contract that ‘deems’ an early payment claim to be submitted on the actual reference date is ineffective for the purpose of the security of payment legislation.  Andrew MacGillivray, Senior Associate and Denise Burloff, Law Graduate discuss the case.

SOP in the High Court again – “Special Leave Granted” A review of the grounds of judicial review for adjudication decisions - Jun 2017

Ted Williams, Partner and Andrew MacGillivray, Senior Associate discuss.

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