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Use it or lose it: Claimants must respond quickly if liquidated damages are levied against them - Feb 2019

The Victorian Building and Construction Industry Security of Payment Act 2002 (the Act) contains a unique regime whereby ‘excluded amounts’ cannot be taken into account when calculating the amount of a progress payment which a person is entitled to under a construction contract. This regime was introduced to facilitate the fundamental purpose of the Act – keeping money flowing through construction projects by dealing with complex disputes at a later date. In Seabay Properties Pty Ltd v Galvin Construction Pty Ltd [2011] VSC 183 the court found that liquidated damages levied by a principal in a payment schedule were an excluded amount. Seven years later, the decision has been considered and further clarified in Shape Australia v The Nuance Group [2018] VSC 808. Partner, Tim Coleman and Law Graduate, Emer Sheridan analyse the implications of these decisions for both claimants and respondents.

Amendments to the Conveyancing Act: Sunset Clauses - Jan 2019

The Conveyancing Legislation Amendment Act 2018 (NSW) (Amending Act) has been passed by both houses of Parliament in a bid to improve the level of protection afforded to consumers who purchase residential property off the plan.

Partner, Timothy Coleman, and Lawyer, Brianna Smith, consider how these changes will make it more difficult for vendors to rely on sunset clauses to rescind contracts for sale.

Late adjudication determination? No worries, it’s still valid! - Dec 2018

Parties to the adjudication process have long debated the effect of a late adjudication determination being provided by an adjudicator. In Ian Street Developer Pty Ltd v Arrow International Pty Ltd [2018] VSCA 294 (Ian Street), the Supreme Court of Victoria Court of Appeal clarified the judicial position on the time limits that apply to adjudicators and what it means when an adjudicator gives a late determination. Partner Megan Calder and Lawyer Jeremy Chan discuss. 

New Directors’ and Officers’ exposure to personal liability under Security of Payment Legislation in NSW - Dec 2018

Last week the Building and Construction Industry Security of Payment Amendment Act 2018 (Amending Act) was passed by both houses of NSW Parliament. The suite of changes cover many aspects of payment behaviour on construction and related procurements in the Premier State. Partner, Robert Riddell and lawyer, Brianna Smith consider the new exposure this presents to Directors and Officers of construction companies.

Grappling with Good Faith - Nov 2018

The recent New South Wales Court of Appeal decision of Goodwin Street Developments Pty Ltd v DSD Buildings Pty Ltd has clarified that the statutory obligation of adjudicators to apply good faith in making their determinations is distinct from a failure to consider the mandatory matters that must be considered by an adjudicator. Good faith is satisfied by an absence of “bad faith” in the decision making process.  Gemma Twemlow, Senior Associate and Denise Burloff, Lawyer discuss the decision.

Awkward Timing: When not to serve a payment schedule - Nov 2018

A recent decision of the Supreme Court of NSW[1] has clarified the status of a payment schedule served out of time, but before a section 17(2)(b) notice is issued.

Partner, Robert Riddell and lawyer, Brianna Smith, consider what this decision means for you in terms of managing exposure to payment claims.

A costly Christmas present – ramifications of the commencement of the new Building Industry Fairness (Security of Payments) Act 2017 - Nov 2018

On 17 December 2018 the new Building Industry Fairness (Security of Payment) Act 2017 (Qld) (BIF Act) will come into force which includes amendments to the payment regime provisions contained in the Building and Construction Industry Payments Act 2004 (Qld) (BCIPA).  The commencement of the BIF Act during the Christmas period will create a number of challenges for claimants and respondents in relation to the service of documents required under BCIPA and the BIF Act.  Ted Williams, Partner and Gemma Twemlow, Senior Associate, discuss those challenges and impacts.

Related company insolvency can affect ability to maintain Queensland builder’s licence - Oct 2018

A recent Supreme Court of Queensland decision as to what constitutes a ‘’construction company’’ under the QBCC Act brings consequences for construction groups who undertake works under different State entities.

Partner, Ted Williams, and Senior Associate, Gemma Twemlow, review the decision and what it means for construction companies.  

Ramping up subcontractor protection – Retention and now ‘Deemed’ Statutory Trusts - Oct 2018

Poor payment practices in the construction industry have faced increasing scrutiny by legislators, culminating in a series of amendments (and proposed amendments) to the security of payment regime.

Partner, Robert Riddell, and lawyer, Brianna Smith, step you through the introduction of retention trusts and the telegraphed statutory trust accounts, explaining how they work and what they mean for you.

New South Wales Returns Fire in the Security of Payment Wars - Aug 2018

Over 1½ years since John Murray was appointed by the Commonwealth Department of Employment to undertake a review of the security of payment laws across Australia, the New South Wales Government is pressing ahead, alone, with changes to its east coast model for security of payment. 

The proposed changes are set out in a recently released public consultation draft of the Building & Construction Industry Security of Payment Amendment Bill 2018 (Exposure Draft).  Some of the changes seem consistent with recommendations in the Murray Report, others not so, or cover ground not the subject of Murray report recommendations.

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