Our experienced Construction legal team regularly publishes articles and updates - the full list of publications appears below. The construction group's articles and publications provide timely and accurate insights into the industry, including analysis of legislation and news on upcoming seminars. This information is relevant to owners, contractors, subcontractors, government instrumentalities, developers, investors and consultants. If you'd like to be notified when we add new construction publications to the site, please go to our subscription page to sign up for email alerts or, alternatively, you can subscribe to our RSS feed.
- 18 December 2009
Focus: ACT security of payment legislationLegislation recently passed in the ACT brings it into line with the rest of Australia by giving contractors the right to receive regular progress payments, whether or not they are provided for in the relevant contract. Partner Leighton O'Brien and Lawyer Patrick Brown explain
- 10 December 2009
Focus: Validity of 'other insurance' clausesThe High Court has recently confirmed that section 45(1) of the Insurance Contracts Act 1984 (Cth) does not void an 'other insurance' provision that limits the insurer's liability where the insured is named as a non-party insured in another insurance policy.The High Court confirmedthat s45(1) only applies to provisions affecting double insurance where the insured is a party to the other contract of insurance. Partner Jenny Thornton and Lawyer Clara Wren consider the case
- 30 October 2009
Focus: Federal Court becomes 'one stop shop' for international arbitrationA Bill passed by the Senate this week will give the Federal Court concurrent jurisdiction with state and territory Supreme Courts in international arbitration matters. Partner Stephen McComish and Lawyer Dr Sam Luttrell report
- 26 October 2009
Focus: Crown contracting and the authority of government agentsA recent Western Australia Court of Appeal decision reinforces that contracts with the Crown, to be binding, must relate to the ordinary functions of government and be entered into by officials with authority to do so. Partner Leighton O'Brien and Lawyer Michael Hogan explain
- 29 September 2009
Client Update: Collusion in the construction industryIn the wake of recent allegations that some Queensland construction companies have colluded on project prices on some government tenders, Partner Ren Niemann and Senior Associate Jenny Lyons report on measures to deal with collusive behaviour
- 14 September 2009
Focus: Construction safety - Liability of principal contractor for negligence by specialist subcontractorsA recent decision by the High Court provides guidance on the safety obligations of a 'principal contractor' and its liability for the negligent acts of its independent specialist subcontractors in a construction context. Partners Jim Parker and Leighton O'Brien and Lawyer Rebecca Campbell report
- 27 August 2009
Focus: 'All reasonable endeavours' - endeavour forever?A recent decision by the New South Wales Supreme Court provides guidance on the scope of contractual obligations requiring the use of 'all reasonable endeavours' and points out that such obligations can subsist indefinitely. Partner Leighton O'Brien and Law Graduate Julian Brun report
- 24 August 2009
Focus: Deadlines for making and responding to a payment claim in WAPartner Stephen McComish and Lawyer James Le Cornu-Brown look at the implications of a recent decision of the State Administrative Tribunal of Western Australia
- 20 July 2009
Focus: Negotiating in good faithA recent New South Wales Court of Appeal decision provides practical guidance on the status of contractual clauses requiring parties to 'negotiate in good faith'. Partner Michael Hollingdale, Law Graduate Stuart Packham and Winter Clerk Peter Sadler report
- 15 July 2009
Focus: Insured's entitlement to make a construction claimA recent decision by the New South Wales Court of Appeal provides guidance on what constitutes a 'construction contract' for the purposes of the Building and Construction Industry Security of Payment Act 1999 (NSW). The court confirmed that a requirement under an insurance contract that the insured take reasonable steps to protect the subject matter of the policy is not a separate construction contract between the insurer and the insured. Partner Leighton O'Brien and Law Graduate Merav Bloch report.
- 03 July 2009
Focus: Contractor's entitlement to claim quantum meruit (Sopov v Kane Constructions)Partner Stephen McComish and Lawyer Hollis Dufour review a recent decision of the Victorian Supreme Court of Appeal which considered whether a quantum meruit claim (ie, a claim for the value of the work done as opposed to a claim for contract damages) is available to a contractor who terminated a contract because of the principal's repudiation of the contract, and outlines the proper approach for assessing the amount payable as compensation in this type of claim
- 22 June 2009
Focus: Queensland's new Sustainable Planning BillThe Sustainable Planning Bill 2009 was recently introduced into the Queensland Parliament. The Bill will attempt to address the issues facing planning and development assessment in the State by standardising planning scheme provisions, addressing shortcomings in the development assessment process, introducing deemed approvals for certain types of development applications and giving the court increased powers to deal with development applications notwithstanding procedural errors that have occurred during the development assessment process
- 07 May 2009
Focus: New commercial arbitration legislation for the statesThe state and territory Attorneys-General have agreed to draft new uniform state Commercial Arbitration Acts based on the UNCITRAL Model Law on International Commercial Arbitration. Special Counsel Nicola Nygh and Lawyer Sam Luttrell report
- 07 May 2009
Focus: Unlicensed builders' right to payment in QueenslandThe Queensland Court of Appeal has confirmed that an unlicensed builder's entitlement to receive payment, or retain monies already paid, is limited by the requirements of the Queensland Building Services Authority Act 1991, even where this outcome might be seen as being unjust. Partner Ren Niemann and Senior Associate Suzy Cairney report
- 16 April 2009
Focus: Trade Practices Act prevails again in Security of Payment claimsA recent Queensland Supreme Court ruling on a payment claim has found that Queensland's security of payment legislation is subject to remedies for misleading and deceptive conduct under the Commonwealth Trade Practices Act 1974. This finding conforms with recent New South Wales authority. The Supreme Court also found that the Queensland legislation did not preclude the court from examining possible defences under the contract. Partner Leighton O'Brien and Vacation Clerk Trieste Corby discuss the implications of Austruct v Independent Pub Group for the construction industry
- 14 April 2009
Focus: Damages - cost of reinstatement preferred over diminution in valueIn a recent decision, the High Court of Australia has found that in determining the appropriate amount of damages for breach of a lease, the cost of rectification is to be preferred over the diminution in value. The court stated that cost of rectification will only be considered an unreasonable basis for the calculation of damages in fairly exceptional circumstances. Partner Leighton O'Brien and Lawyer Alicia Moody look at the decision
- 06 April 2009
Focus: Safety at WorkIn our quarterly Focus on safety at work, we look at the second report on harmonisation of occupational health and safety laws in Australia, the dangers for employers even if an occupational health and safety risk is not located on work premises, risk assessment and the Beaconsfield Gold Mine disaster, the s28(a) defence in NSW, and the high penalties attracted by a failure to manage well-known risks to safety at work.
- 23 March 2009
Focus: Losing the right to terminate - election and no waiver clausesPartner Leighton O'Brien and Senior Associate Stephen Sander report on an English Court of Appeal decision and its implications for the effectiveness of 'no waiver' clauses when breach and termination of a commercial agreement are separated by many months of contractual performance
- 21 November 2008
Focus: ConstructionThe Western Australian Supreme Court has considered the effect of using 'nil' and 'N/A' in Annexure Part A to the Australian Standard General Conditions of Contract AS2124. Partner Michael Hollingdale and Law Graduate Robert French report
- 26 September 2008
Focus: ConstructionPartner Stephen McComish and Law Graduate Robert French look at two recent decisions handed down by the Western Australian Supreme Court that shed some light on the issue of interlocutory injunctions in a construction context.
- 17 July 2008
Focus: ArbitrationThe Western Australian Court of Appeal recently held that an arbitration clause in a contract did not cover a related dispute between the contracting parties where the dispute also involved the liability of a third party. This arguably goes against the general trend of a broader interpretation of arbitration clauses. Senior Associate Brian Millar and Law Graduate Clara Wren look at the decision and its implications
- 07 July 2008
Focus: ConstructionThe High Court of Australia has rejected a claim in restitution where there was a direct chain of contractual relationships between the parties involved. This decision has emphasised the courts' reluctance to interfere where parties have entered into arm's length commercial transactions. Partner Nick Rudge, Solicitor Yvonne Cross and Articled Clerk John-Paul Santamaria review the judgement
- 13 June 2008
Focus: ConstructionA recent Supreme Court of Queensland decision has demonstrated how a carefully worded extension of time clause can give the Superintendent an absolute discretion in the exercise of their reserve power to grant an extension of time. Partner Nick Rudge and Articled Clerk Lucinda Hill look at what the decision means
- 06 June 2008
Focus: ConstructionWhen will a sub-contractor in a building project owe the proprietor or subsequent owners a duty of care? Is the liability of other concurrent wrongdoers under Victoria's proportionate liability regime affected if another concurrent wrongdoer reaches a settlement with the plaintiff? Partner Nick Rudge and Senior Associate Anna Thwaites report on a recent judgment in the Victorian Supreme Court
- 23 May 2008
Focus: PrivilegeA recent Federal Court pre-trial decision in a high-profile discrimination claim by a former partner of a large accounting firm has potentially significant ramifications for all lawyers, and particularly in-house lawyers. Partner Leighton O'Brien, Partner-elect Richard Harris and Senior Associate Lucas Shipway report
- 14 May 2008
Focus: InfrastructureIn April 2008, the Victorian Government released the Updated Standard Commercial Principles as part of its Partnerships Victoria guidance material. Partner Emma Warren, Senior Associate Claire Scanlon and Articled Clerk John-Paul Santamaria look at what will change with the updated principles
- 20 March 2008
Focus: ConstructionThe recent Victorian Court of Appeal decision in Environmental Systems Pty Ltd v Peerless Holdings Pty Ltd examined the distinction between 'normal' and 'consequential' loss for a breach of contract and held that lost profit was a consequential loss. Partner Nick Rudge and Articled Clerk John-Paul Santamaria report
- 18 December 2007
Focus: ConstructionPartner Nick Rudge, Lawyer Nicholas Gallina and Law Clerk Merav Bloch review the decision of the Victorian Supreme Court of Appeal in Sopov v Kane Constructions Pty Ltd. This important decision examines how a court will assess repudiatory conduct leading to the termination of a contract, a principal's right of set off, and whether a 'show cause' notice that wrongly alleges a breach may still be valid
- 22 November 2007
Focus: ConstructionA recent NSW Court of Appeal decision will have a considerable impact on the drafting of indemnity and exclusion clauses in Australian contracts. Partner Leighton O'Brien and Senior Associate Morgan Clewley review the case
- 02 November 2007
Focus: ConstructionWe recently reported on three decisions providing significant guidance on how the courts are likely to interpret the proportionate liability regimes in Australia. In a further decision, the Federal Court has confirmed that, although the proportionate liability regimes have effected significant change in the law in cases to which they apply, the regimes could not have been intended to create a cause of action where one did not previously exist
- 23 October 2007
Focus: ConstructionPartner Nick Rudge and Lawyer Anne-Marie Wholley consider three recent decisions that provide significant guidance on how the courts are likely to interpret the proportionate liability regimes in Australia
- 13 September 2007
Focus: ConstructionPartner Nick Rudge and Lawyer Nicholas Gallina review the Queensland Supreme Court's decision in Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd in relation to issues arising from an expert determination process
- 10 August 2007
Focus: ArbitrationSenior Associate Brian Millar and Lawyer Jeremy Sher explain the new Singapore International Arbitration Centre Rules, which came into effect on 1 July 2007
- 17 July 2007
Focus: InfrastructureThe Victorian Government has released two publications that further clarify its approach to public private partnerships. The Government is continuing to develop policy in this area with a focus on providing transparency and value for money. Partner Emma Warren and Articled Clerk Kate Austin summarise the main issues in the publications
- 06 July 2007
Focus: ConstructionThe NSW Court of Appeal recently affirmed that adjudicators' determinations under the NSW Building and Construction Industry Security of Payment Act 1999 (NSW) are interim in nature. Accordingly, a separate, later and different determination by a Superintendent as a part of a final certificate process is valid and does not offend section 34. Partner Leighton O'Brien and Senior Associate Christopher Larcos consider the implications of this decision
- 31 May 2007
Focus: ConstructionThe High Court recently reaffirmed that where an architect prepares drawings for a particular development, the architect impliedly licences the use of those drawings for the development. That licence then extends to subsequent purchasers of the land and may sometimes be irrevocable. Senior Associate Nick Rudge (who will become a Partner on 1 July) and Senior Associate Christopher Larcos consider the implications of this decision
- 08 May 2007
Client Update: ConstructionSeveral important changes to Victoria's security of payment legislation are now operational. As Partner Emma Warren and Senior Associate Anna Thwaites discuss, the amendments have wide scope and bring the State into line with New South Wales and Queensland
- 04 April 2007
Focus: ConstructionIn response to recommendations made by the Auditor-General and recent public concerns about the efficacy of certain contracts entered into by the NSW Government, the Freedom of Information Amendment (Open Government - Disclosure of Contracts) Act 2006 (NSW) came into force on 1 January 2007. The purpose of the Act is to promote greater transparency in all contractual dealings between NSW government agencies and the private sector. Partner Leighton O'Brien and Lawyer Joel Sturgeon report
- 20 February 2007
Focus: ConstructionGreater complexity in construction and infrastructure projects means risk averse contractors and consultants typically look for contractual protection from liability for consequential loss suffered by the other party or third parties. Despite the frequency that the term 'consequential loss' is used, it is not clear to many what it means and what types of loss it comprises
- 09 January 2007
Constructive knowledgeEditors Nick Rudge and George Varma provide a brief summary of new legislation, recent cases and articles of interest in the construction area
- 01 November 2006
Constructive knowledgeEditors Nick Rudge and George Varma provide a brief summary of new legislation, recent cases and articles of interest in the construction area
- 30 October 2006
Focus: ConstructionA recent decision of the UK High Court serves as a timely reminder to consultants of the importance of carefully planning projects and of their professional obligations when advising on contracting strategy. Partner Michael Hollingdale and Law Graduate Jeremy Sher look at the case and its implications
- 18 October 2006
Focus: ConstructionCan contractual claims for economic loss on a construction project be subject to the new proportionate liability regime in Part IVAA of the Wrongs Act 1958 (Vic). Senior Associate Nick Rudge and Law Clerk Greg Roebuck report on the decision in the Victorian Civil and Administrative Tribunal that considers the new provisions in the context of defective construction work
- 21 September 2006
Focus: ConstructionOn 5 September 2006, the NSW Supreme Court decided in John Holland v RTA that a final determination by a superintendent could undo the effect of a prior determination by an adjudicator and that such a provision was not void under section 34 of the Building and Construction Industry Security of Payment Act 1999 (NSW). Partner Leighton O'Brien and Law Graduate Rima Hor report
- 06 September 2006
Focus: ConstructionA recent NSW Court of Appeal ruling on a payment claim has found that where a party might be entitled to a remedy under the Trade Practices Act 1974 (Cth) the Security of Payment Act 1999 (NSW) could not close out that remedy. In addition, if the effect of the Security of Payment Act was to prevent a Trade Practices Act claim being raised, then the inconsistency between state law and Commonwealth law would render the state law inoperative to the extent of the inconsistency
- 14 August 2006
Focus: ConstructionThe Victorian Parliament recently passed the Building and Construction Industry Security of Payment Amendment Act 2006 (Vic). In addition to the amendments it makes to the Building and Construction Industry Security of Payment Act 2002 (Vic) outlined in Focus: Construction - March 2006, the Amendment Act expands the scope of 'claimable variations' under the Security of Payment Act
- 10 August 2006
Paper: Some construction insolvency issuesWe discuss a range of construction insolvency issues which banks may face when dealing with their rights
- 23 June 2006
Paper: Quantum meruitSenior Associate Michael Wright and Lawyer Christopher Larcos discuss quantum meruit - an action for payment of the reasonable value of services performed
- 22 June 2006
Focus: ConstructionAre claims that a party owes a duty of care to avoid economic loss in a construction project context likely to succeed in Victoria? Senior Associate Nick Rudge and Solicitor Daniel Allender report on a recent judgment in the Victorian Supreme Court
- 13 June 2006
Constructive knowledgeEditor Nick Rudge and Lawyer George Varma provide a brief summary of new legislation and recent cases in the construction area
