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Factoring and Security of Payment - Sep 2017

Who would have thought that the umbiquitous factoring agreement could become so controversial?  Cashflow view would dispute that cashflow is the lifeblood of the industry and that factoring agreement ones debtors is a popular way of maintaining that flow.  However like most financial products, factoring agreements present unique 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 Fitzpatick, special 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.

Introduction of the Labour Hire Licensing Requirements in Queensland - Jun 2017

A follow-up to our earlier update on the changes to the Labour Hire Industry in Queensland, Andrew MacGillivray, Senior Associate now explains its effects further.

Amendments to the definition of a “PPS Lease” and the effect on current and future hire agreements - Jun 2017

On 20 May 2017, the Personal Property Securities Amendment (PPS Leases) Act 2017 (Cth) was passed into law. This amendment to the Personal Property Securities Act 2009 (Cth) (PPS Act) extends the period of time before a lease or bailment is considered to be a “PPS Lease” from 1 year to 2 years (Amendment). Kara Pennisi, Senior Associate, Andrew MacGillivray, Senior Associate, and Marya Atmeh, Lawyer, discuss this Amendment.

Changes for Labour Hire Companies - Jun 2017

In December 2016, the Queensland Government published an issues paper titled ‘Regulation of the Labour Hire Industry 2016’ seeking submissions from stakeholders on a labour hire licensing scheme in Queensland. Andrew MacGillivray, Senior Associate discusses.

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