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New protections when buying residential property off the plan - Mar 2019

The Conveyancing Legislation Amendment Act 2018 (NSW) (Amending Act) is set to better regulate sales of off the plan residential property in New South Wales. In particular, the Amending Act will:

  • improve the level of disclosure that vendors must make to purchasers; and
  • make it easier for purchasers to rescind contracts for sale. 

Partner, Timothy Coleman, and Lawyer, Brianna Smith consider what these changes will mean for both vendors and purchasers.

$55M demand scuppered in battle of form over substance. (Very) strict compliance is required when it comes to calls on performance security. - Feb 2019

In the recent decision of Santos Limited v BNP Paribas [2019] QCA 11, the Queensland Court of Appeal upheld a decision that a failure to include the words “authorised signatory of Santos Limited” meant that a demand made upon a bank guarantee was invalid.  Given the principle of ‘’strict compliance’’, the employee’s signature and position description did not amount to a representation that he was an authorised representative of Santos Limited.  Ted Williams, Partner and Gemma Twemlow, Senior Associate, discuss what the decision means for parties when notices under contracts.    

Groundhog Day: When will the court remit an adjudication application? - Feb 2019

So, you have successfully argued that an adjudicator acting under Security of Payment legislation failed to undertake the task required and, therefore, their determination has been quashed. But now what? Is the adjudication determination at an end or will it be remitted back to the adjudicator so they can correct errors in it and issue a determination?

Partner, Tim Coleman and Law Graduate, Emer Sheridan, discuss the circumstances in which a quashed adjudication determination will, or will not, be handed back to an adjudicator.

Quality Control: Adjudicators must provide adequate reasons - Feb 2019

The Nuance Group (Australia) Pty Limited v SHAPE Australia Pty Limited [2018] VSC 362 re-affirms that an adjudication determination will be quashed if the adjudicator fails to provide adequate reasons for their determination.

Partner, Tim Coleman and Law Graduate, Emer Sheridan, review the decision and discuss the circumstances in which a determination can be overturned.

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.

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