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.
We have brought together the most important cases and developments in Construction published or occuring between about the last quarter of 2009 through to November 2010. These are published in our annual Australian Construction Law - Year in Review. You can download pdfs of the Review for 2010, 2009 and 2008.
You can also read insights and analysis on our Construction law blog.
- 09 December 2011
Audio: Oracle holds buyers to contractThe Supreme Court of Queensland handed down two significant decisions last week regarding off-the-plan contracts. Partner Tracey Harrip spoke to Boardroom Radio about the decisions and the implications for the residential property industry
- 11 November 2011
Audio: Australian Construction Law - the year in review - 28 October 2011
Focus: Uncertainty about review of adjudicators' decisions clarifiedSignificant uncertainty regarding parties' rights to have an adjudicator's decision reviewed has been resolved, following a recent Western Australia Court of Appeal decision. Partner Stephen McComish, Senior Associate Jeremy Quan-Sing and Law Graduate Samantha Lord report
- 26 October 2011
Client Update: Security of payments and litigation privilegeA recent Victorian Supreme Court decision has held that litigation privilege extends to documents prepared in anticipation of adjudication under Victorian security of payments legislation. Partner Nick Rudge and Law Graduate Loren Atkins report
- 13 October 2011
Focus: New rules to streamline arbitration processNew International Chamber of Commerce Rules of Arbitration will streamline the arbitral process and aid its efficiency. The new rules also take into account the increasing complexity of arbitrations by better accommodating multiple parties and contracts. Partner Duncan Travis, Special Counsel Nicola Nygh and Law Graduate Edmund Robinson report
- 28 September 2011
Client Update: WA Government's commercial position on PPPsThe Western Australian Government has released additional policy guidance on its preferred risk allocation when entering into public private partnerships.The new policy guidance supplements the National Public Private Partnership Guidelines, providing a useful insight for market participants. Partner Michael Hollingdale and Senior Associates David Donnelly and Fiona Potter report.
- 27 September 2011
Audio: Proportionate liability reform on the horizonThe Standing Committee of Attorneys-General has released a proposal to make the proportionate liability regime uniform across Australia. Partner Nick Rudge spoke to Boardroom Radio about what these proposals would mean for the construction industry
- 21 September 2011
Focus: Draft model proportionate liability legislation to reform systemMultiple defendants will find it easier to attract proportionate liability to claims made against them under draft model legislation to reform Australia's proportionate liability laws. Partner Paul Nicols and Senior Associate Philip Hopley report on the proposals, which have been released for public consultation
- 12 September 2011
Focus: Adjourning the enforcement of a foreign arbitral awardA recent Federal Court decision gives insight into the circumstances under which a court may adjourn the enforcement of a foreign arbitral award that is the subject of an appeal in the courts of the seat of the arbitration. Partner Nick Rudge, Special Counsel Nicola Nygh and Lawyer Tom Levi report on a case that deals with the uniformity of recognition and enforcement of foreign arbitral awards
- 19 July 2011
Client Update: Draft Rail Safety National Law released for commentThe National Transport Commission (the NTC) yesterday released a consultation draft of the Rail Safety National Law and Regulations for public comment. If passed, the Law will replace the existing state and territory rail safety legislative schemes with a national scheme and will establish a single rail safety regulator. Partner Leighton O'Brien and Lawyer Jonathan Adamopoulos report
- 13 July 2011
Focus: Fight for your right (to be a party) - limits on claims for contributionA recent decision of the Supreme Court of New South Wales highlights the importance of assessing the limits on rights of contribution when issuing insurance policies. Partner Dean Carrigan, Senior Associate Philip Hopley and Lawyer Patricia Abordo report
- 13 July 2011
Focus: Is apportionment relevant to claims for compensation for misleading or deceptive conduct?A recent full Federal Court decision gives guidance on whether the apportionment regime applying to claims for damages for misleading or deceptive conduct under section 82 of the Trade Practices Act 1974 (Cth) is relevant to claims under s87 for compensation. Partner Brian Millar and Senior Associate Matthew Senescall report on the decision, and consider the implications for parties considering bringing or defending such claims under the TPA and the recently enacted Competition and Consumer Act 2010 (Cth) and Australian Consumer Law
- 07 July 2011
Focus: No default option to litigate in dispute resolution clauseA recent New South Wales Court of Appeal decision has continued the trend of interpreting alternative dispute resolution clauses consistently with commercial commonsense. Partner Brian Millar and Senior Associate Matthew Senescall report on the decision, and consider the lessons for parties interpreting existing dispute resolution procedures and negotiating those clauses in future contracts
- 30 June 2011
Focus: The unconditional nature of bank undertakingsThe Supreme Court of Queensland has affirmed that there are very limited circumstances in which a court will interfere with the calling on an unconditional bank undertaking. Partner John Cooper, Senior Associate Matthew Senescall and Lawyer Tom Levi report on the decision and consider the lessons for parties entering into contracts which require provision of unconditional undertakings as security for performance
- 29 June 2011
Focus: Absolute state immunity prevents enforcement in Hong KongHong Kong's Court of Final Appeal recently held that no state may be sued in Hong Kong's courts unless the state waives its immunity, and that submitting to arbitration does not constitute a waiver. This will have a major impact on any business wanting to enforce a claim against a state's assets in Hong Kong. For the first time, the court also referred questions about the interpretation of Hong Kong's Basic Law to the standing committee of the National People's Congress in Beijing. Partner Simon McConnell, Special Counsel Nicola Nygh, and Law Graduate Edmund Robinson report on the court's decision
- 20 June 2011
Focus: Liquidated damages not a proper deduction for payment schedules in VictoriaThe Victorian Supreme Court recently found that liquidated damages could not be deducted in payment schedules made under the state's security of payment legislation, and severed parts of a payment claim that contained claimable variations from those parts that did not. Partner Nick Rudge and Senior Associate Nicholas Gallina report
- 07 June 2011
Focus: Resurgence of dispute review boardsProponents of some recent landmark Australian infrastructure projects, such as the Gateway Upgrade in Queensland, the Harvey Dam in Western Australia, and the desalination plants in Adelaide and Sydney, have chosen to administer their contracts using dispute review boards, reflecting their success in avoiding disputes, or preventing disputes from escalating while construction works are in progress. Partner Brian Millar, Lawyer Michael Tollman and Law Graduate Tom Tian report on a growing trend
- 06 May 2011
Client Update: NSW Bill to make immediate changes to OHS duties and directors' liabilityThe NSW Government yesterday introduced in Parliament the Occupational Health and Safety Amendment Bill 2011 which, if passed, will remove the reverse-onus duty provisions in the Occupational Health and Safety Act 2000 (NSW) and substantially modify the personal liability of directors. These changes are proposed to commence ahead of the Model Work Health and Safety Bill on 1 January 2012. Partner Peter Arthur and Lawyer Jonathan Adamopoulos report
- 07 February 2011
Focus: Trusting in good faithA recent Western Australian Court of Appeal decision provides practical guidance on the ordinary meaning and scope of an express contractual term of good faith. Partner Michael Hollingdale and Lawyer Stuart Packham report
- 28 January 2011
Focus: WA building regulation - reform around the cornerFour Bills, which have been described by the Building Commission of Western Australia as 'the most significant reform to building regulation in Western Australia in 50 years', have been introduced into the WA Parliament. Partner Michael Hollingdale and Lawyer Robert Merriam look at the new legislation that will consolidate various functions under the WA Building Commission and create the new position of Building Commissioner
- 16 December 2010
Client Update: Draft Model Work Health and Safety Regulations and Codes of Practice releasedAny company or individual conducting business, regardless of whether it has any employees, will be liable under new draft regulations which are the next step towards the national harmonisation of occupational health and safety laws. Partner Peter Arthur and Lawyer Jonathan Adamopoulos report on new draft Regulations and draft Codes of Practice released by Safe Work Australia
- 15 December 2010
Focus: Security of payments legislation in NSW - more extraordinary rightsNew amendments to security of payments legislation in NSW will mean subcontractor claimants can, in certain circumstances, 'leapfrog' up the contractual chain to secure payment. Partner Leighton O'Brien and Senior Associate Matthew Senescall look at the legislation, and its implications for principals and contractors
- 01 September 2010
Focus: The application of the Victorian security of payments legislationThe Victorian Supreme Court recently clarified aspects of the Victorian security payments regime when it severed parts of a payment claim that properly identified construction work claimed under the legislation from those that did not, and also found that, in some circumstances, payment claims could be served after termination. Partner Nick Rudge, Lawyer Nicholas Gallina and Law Graduate Daniel Elliott review the decision
- 11 August 2010
Focus: High Court rules that unenforceable liabilities can be indemnifiable lossesThe High Court of Australia has rejected an insurer's argument that, if a liability of an insured cannot be enforced, that insured has suffered no indemnifiable 'loss'. As Partner Malcolm Stephens and Law Graduate Laura Johnston explain, the court distinguished between the existence of a liability and the ability to enforce that liability
- 10 August 2010
Focus: Personal properties securities reform and the construction industryThe Personal Property Securities Act 2009 (Cth) will commence in May 2011. It covers a wide range of transactions, not just security interests.It is not limited to consumer transactions, and significantly alters aspects of commercial law and contracts law. It makes fundamental changes to the way in which securities are taken and enforced over most forms of property other than land. Significantly for those in the construction industry, the legislation will affect retention of title clauses and rights over temporary works and a contractor's equipment. Partners Leighton O'Brien, Steve Pemberton and Diccon Loxton and Lawyer Merav Bloch report
- 02 August 2010
Client Update: Can an informal email constitute a payment schedule in Queensland?The Supreme Court of Queensland has found that an email, despite its relative informality, constituted a payment schedule for the purposes of the Building and Construction Industry Payments Act 2004 (Qld). Partner Stephen McComish and Law Graduate Anne Nguyen report
- 15 April 2010
Client Update: New Zealand's first prison public private partnershipLast month we reported on the opportunities arising out of the New Zealand Government's National Infrastructure Plan. In this Client Update, Partner Emma Warren and Senior Associate David Donnelly report on the Wiri Prison PPP, the first prison public private partnership in New Zealand
- 19 March 2010
Client Update: New infrastructure opportunities in New ZealandThe New Zealand Government recently released its National Infrastructure Plan. The plan signals a move towards greater private sector involvement in infrastructure procurement and management. This move gives rise to opportunities for industry participants. Partner Emma Warren and Senior Associate David Donnelly report
- 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 confirmed that 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
- 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
- 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: 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.
- 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
