Queensland introduces Non-conforming Building Products Legislation and reforms BCIPA and other legislation

By Greg Richards, Partner The Building and Construction Legislation (Non-conforming Building Products – Chain of Responsibility and Other Matters) Amendment Act 2017 (NCBP Amendment Act) commenced on 1 November 2017. The Building Industry Fairness (Security of Payment) Bill 2017 (BIFSOPA), which replaces the Building and Construction Industry Payments Act 2004 (BCIPA) and the Subcontractors’ Charges
Read more…

A ban on combustible cladding and extending legal duties of care: Senate report recommendations turn up the pressure on property and building industry

By Scott Higgins, Partner and Lucy Hancock, Lawyer The Senate has released its interim report on the use of Aluminium Composite Panel (ACP) in Australia as part of its enquiry into non-conforming Building Products. ACP is combustible and considered by experts to have exacerbated the spread of the London fire. As set out in our
Read more…

Defective structure or defective design – which is it and what does it mean?

By Ziv Ben-Arie, Partner;  Vlad Vishney, Senior Associate; and Nawid Cina, Paralegal.  Summary The recent decision of His Honour Stevenson J, in AAI Ltd T/as Vero Insurance v Kalnin Corp Pty Ltd; Kalnin Corp Pty Ltd v AAI Ltd T/as Vero Insurance [2017] NSWSC 548 (Vero) examines the breadth and meaning of the term ‘structural
Read more…

Who’s liable? Combustible cladding prompts building reform in NSW

By Scott Higgins, Partner and Lucy Hancock, Lawyer As set out in our previous update, the devastating Grenfell Tower Fire in London in June highlighted the pervasive use of combustible and potentially unsafe cladding materials in high rise developments across the world. In terms of government responses to the risks, Victoria had already been leading
Read more…

London fire sparks concern over cladding materials used in multi-story buildings

By Scott Higgins, Partner and Lucy Hancock, Lawyer In the wake of the tragic circumstances at Grenfell Tower in London, owners, builders and private certifiers of multi-story apartment buildings should take additional steps to ensure that the cladding materials being used are safe, sufficiently fire retardant, and at a minimum, satisfy Australian Standards and the
Read more…

Deferral of Strata Building Bond Scheme to 1 January 2018

By Caitlin Cook, Lawyer and Scott Laycock, Partner A Bill has been introduced to NSW Parliament this month to postpone the commencement of the building defect rectification and bond scheme from 1 July 2017 to 1 January 2018. The postponement of the building defect bond scheme appears to be due to the delay in preparation
Read more…

BREAKING NEWS: High Court today delivers landmark first decision on Security of Payment legislation – A win for respondents and reference dates

By Vlad Vishney, Senior Associate, Scott Higgins, Partner and Ziv Ben-Arie, Partner The High Court’s judgment today in Southern Han Breakfast Point Pty Ltd (in Liquidation) v Lewence Constructions Pty Ltd [2016] HCA 52 marks the final chapter in the judicial process dealing with an adjudicator’s determination of a builder’s claim under the Building and
Read more…

‘Fair Play’ – New contract laws to impact procurement from small business

By Sacha Janczuk, Associate and Scott Higgins, Partner The ‘Treasury Legislation Amendment (Small Business and Unfair Contract Terms) Act 2015’ (Cth) (“the Act”) commenced on 13 November 2016.  It will have implications for any company that engages directly with small businesses.   Procurement teams and in-house legal counsel in the property and construction sectors should
Read more…

“I don’t need you…or do I?”

By Ziv Ben-Arie, Partner and Alec Brown, Lawyer Adrigan v Owners Corporation SP83475 [2016] NSWCATAP 58 Summary An owner builder recently failed in his defence against an Owner’s Corporation claim for defects, primarily because he was not adequately prepared and unrepresented. At the hearing, the builder sought an adjournment but the Tribunal refused that application. The
Read more…

Don’t get caught out – Security of Payment over Christmas

By Ziv Ben-Arie, Partner As the industry shuts down over the holiday period, some claimants see this as an opportune time to serve payment claims under the Building and Construction Industry Security of Payment Act 1999 (NSW) (the Act), possibly in the hope that they will go undetected, which may have devastating consequences. Once a
Read more…

Forge Group Power Pty Limited (in liquidation)(receivers and managers appointed) v General Electric International Inc [2016] NSWSC 52.

By Alec Brown, Lawyer and Ziv Ben-Arie, Partner Summary If you are in the business of leasing goods or equipment regularly, particularly in a construction environment, you ought to be mindful of the provisions of the Personal Property Securities Act 2009 (Cth) (the Act), also known as the PPSA. There is a possibility that any
Read more…

Avoiding unpleasant surprises: incorporation of terms into contracts after Surfstone Pty Ltd v Morgan Consulting Engineers Pty Ltd [2016] QCA 213

By Alec Brown, Lawyer  Summary If you sign a contract where some of the contract terms are not contained in the contract but identified as being set out in a separate instrument, such as industry guidelines, then Surfstone reinforces the current position in the law that those referenced terms in the separate instrument are incorporated
Read more…

The New Strata Schemes Management Regulations

By Scott Laycock, Partner, Sarah Sattout, Consultant, and Caitlin Cook, Lawyer. The NSW Government has now confirmed that the provisions of the new Strata Schemes Management Act 2015 (NSW) (Act) will commence on 30 November 2016. The key exception to the November 2016 commencement date is the new building defect rectification and bond scheme which
Read more…

The new Strata Schemes Management Act: Major Impact on Developers and Contractors

By Scott Laycock, Partner, Sarah Sattout, Consultant, and Caitlin Cook, Lawyer New South Wales Fair Trading recently announced that the new Strata Schemes Management Act 2015 (NSW) (Act) will come into effect in November 2016. The Act replaces the existing Strata Schemes Management Act 1996. The Act will apply to construction contracts entered into after
Read more…

Probuild decision takes us back to the future: Court declares ‘open season’ on errors of law by adjudicators

By Scott Higgins, Partner, Sacha Janczuk, Associate and Matthew Marshall, Lawyer Respondents across NSW (and other states) will be roused by two key findings by the NSW Supreme Court in the case of Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2016] NSWSC 770 (‘Probuild decision’): Judicial review and relief is available to
Read more…

Proportionate Liability – Dividing the Construction Industry

By Andrew Hazer, Building Construction and Infrastructure The regime of proportionate liability under the Civil Liability Act 2002 (NSW) (“the CLA”) and corresponding statutes in other jurisdictions, provides that the liability for loss be apportioned between concurrent wrongdoers. At times, this regime can complicate and prolong the pursuit, through proceedings, for damages. Contractors, consultants and suppliers
Read more…

Resolving or Addressing Disputes – Dispute Resolution Clauses Examined

By Ziv Ben-Arie, Partner. SSC Plenty Road v Construction Engineering (Aust) Pty Ltd [2016] VSCA 119  Introduction: The Victorian Court of Appeal has recently examined whether mediation under a construction contract satisfies the requirements of the Victorian Building and Construction Industry (Security of Payment) Act 2002 as being a method for resolving a dispute. Facts:
Read more…

Have you been served? The importance of serving a valid payment claim

By Ziv Ben-Arie, Partner, and Matthew Marshall, Lawyer. Duffy Kennedy Pty Ltd v Lainson Holdings Pty Ltd [2016] NSWSC 371 Facts Duffy Kennedy Pty Ltd (Builder), entered into a contract with Lainson Holdings Pty Ltd (Owner), to construct a residential development in Cronulla. The Builder served three payment claims pursuant to the Building and Construction Industry
Read more…

Are superannuation contributions protected in bankruptcy?

By Harry Kay, Senior Associate. When a person becomes bankrupt, any property of the bankrupt automatically vests in the trustee in bankruptcy (appointed to administer the estate). That property includes all property owned at the time of bankruptcy or acquired during bankruptcy. Importantly, however, a bankrupt’s interest in a regulated superannuation fund is classified as
Read more…

Contractual relationships and how they define the time for payment under the SOP Act – it’s a danger zone!

Cash flow is a key business risk which needs to be managed diligently and effectively. The construction industry, more so than any other, is heavily dependent upon receiving payment on time and in the amount claimed. The amendments to the Building and Construction Industry Security of Payment Act 1999 (Act) in April 2014 attempted to
Read more…

Payment Claims over Christmas Break: A Matter of Timing

By Alec Brown, Lawyer  As offices shut down over the holiday period, some claimants see this as an opportune time to try to ambush potential respondents with payment claims under the Building and Construction Industry Security of Payment Act 1999 (NSW) (the Act), in the hope that they will go undetected, and become due and
Read more…

Property and Commercial – Tips and Traps

The “Pokies” Defence Lenders take note. The Supreme Court of NSW has recently decided that the National Australia Bank could not enforce its security and indeed, that that there was no default by the borrower in circumstances where funds had been fraudulently withdrawn from the loan account by the borrower’s wife. The court held that
Read more…

Compulsory Drug and Alcohol Testing on Construction Sites

By John Matthews & Olivia Doonan Recent amendments to the Building Code 2013 (Building Code) require the implementation of drug and alcohol testing policies on construction sites. The new amendments take effect on 16 October 2015. All building industry participants involved in Commonwealth funded building work must ensure that a zero tolerance for drugs and
Read more…

The Use of Adjudication Determinations as the Basis for a Creditor’s Statutory Demand

By Alec Brown, Building, Construction and Infrastructure Lawyer Case Note: In the matter of Douglas Aerospace Pty Ltd [2015] NSWSC 167 Summary Adjudication debtors beware, the NSW Supreme Court has limited the previous ability for debtors to set aside applications to wind up companies based on an unpaid adjudication certificates under BACISOPA. Facts Douglas Aerospace
Read more…

Arbitration Clauses in Home Building Contracts – Case Note

By Alec Brown, Building, Construction and Infrastructure Graduate Summary In examining the application of section 7C of the Home Building Act 1999 (NSW) (Act) (prohibition on referral of disputes to arbitration), the NSW Supreme Court has determined that the prohibition does not extend to other types of alternative dispute resolution such as expert determination or
Read more…

New Trust Regulations: Administrative Burden for Head Contractors

What you need to know: This amendment only applies to projects where the head contract has a value of at least $20 million. Head Contractors are now required to open special bank accounts and keep subcontractors retention money separate from general operating accounts.  Head Contractors can only withdraw money from the trust account in limited
Read more…

IPD and BIM: A new dimension to collaboration

By Lindsay Stirton, Partner, and Jackson Tree, Lawyer BIM – 3D modelling of design – potentially provides participants in construction/engineering projects with the opportunity to pursue a truly collaborative approach to design, construction and ongoing management of an asset. But do current methods of project delivery fully realise this potential. Is IPD the answer? Building
Read more…

When can a director be liable for a company’s debts?

By Harry Kay, Senior Associate. Just because your business operates as a Company, there are some circumstances where a director may still face personal liability for the debts of a company. The main areas of potential liability for a director are for: 1. insolvent trading compensation claims; 2. unreasonable director related transactions; 3. taxation debts
Read more…

Do Builders Owe You A Duty Of Care?

This may seem reasonable.  After all a purchaser cannot usually check the quality of the builder’s work as it is being done. The same goes for a developer – they rely on their builders to do their job. However in Brookfield Multiplex Ltd v Owners Corporations Strata Plan 61288 [2014] HCA 36 the High Court
Read more…

Reference dates post termination: a recent review by the Supreme Court

Patrick Stevedores Operations No 2 Pty Ltd (Patrick) v McConnell Dowell Constructors (Aust) Pty Ltd (MacDow) Supreme Court of NSW Ball J 16 October 2014 A recent decision of the NSW Supreme Court has provided guidance on the question of what constitutes “construction work or the supply of related goods or services” under the Building
Read more…

Acting Reasonably – Objective or Subjective Test?

Case note: Lend Lease Pty Ltd v Sugar Australia Pty Ltd Supreme Court of Victoria Vickery J A recent interlocutory judgment provides some important guidance on the question of recourse to security under Australian Standard engineering contract AS4910-2002, cl 5.2, and whether “acting reasonably” in that context should be determined subjectively or objectively. Lend Lease
Read more…

Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288

No duty of care in tort to avoid pure economic loss is owed by a D&C Contractor to a body corporate of a strata title scheme in respect of latent defects in common property. This week the High Court of Australia handed down its decision in Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288
Read more…

Caltex v Allstate – the Issue Estoppel you have when you’re not having an Issue Estoppel

On 15 September 2014 Justice Philip McMurdo of the Supreme Court of Queensland handed down a decision in Caltex Refineries (Qld) Pty Ltd & Anor v Allstate Access (Australia) Pty Ltd & Ors [2014] QSC 223 in which His Honour questioned the applicability of common law principles of issue estoppel to adjudication decisions under Security
Read more…

Construction Union Worker Entry Permit Denied

By Clayton Payne A recent decision of the Fair Work Commission (FWC) has shown that it is not all plain sailing for union officials seeking the right to enter workplaces. The decision by FWC Officer Chris Enright to refuse an entry permit to a CFMEU official has been affirmed on appeal by the full bench
Read more…

A Challenging Adjudication

A recent decision (1) of the WA Supreme Court provides important guidance on several key issues arising under the Construction Contracts Act 2004 (WA) (“the Act”). Specifically, it explored: whether the Act authorises adjudicators to determine questions of law; the test for jurisdictional error in respect of adjudication determinations; the validity of the appointment of a superintendent’s
Read more…

SOP catches direct payments to subcontractors by principals

Seabreeze Manly v Toposu [2014] NSWSC 1097 The recent NSW Supreme Court decision in Seabreeze Manly v Toposu [2014] NSWSC 1097 illustrates that arrangements to make direct payments to subcontractors on a construction project may be caught by the relevant security of payment (SOP) legislation. Seabreeze was the principal on the project. Castle Projects was
Read more…

Code violation: McConnell Dowell hit with a three month ban

McConnell Dowell Constructors (Aust) Pty Ltd and its subsidiaries (MD) have been hit hard with a three month tender exclusion sanction by the Victorian Government after MD was found to have breached several Implementation Guidelines to the Victorian Code of Practice for the Building and Construction Industry (Code). The Code sets out specific principles and
Read more…

BCIPA ALERT! Reforms Passed Yesterday

The Building and Construction Industry Payments Amendment Bill 2014 (Qld) has now been passed. The following important changes to BCIPA have now been enacted: adjudicators will now be appointed by the Queensland Building and Construction Commission (QBCC) Adjudication Registry; claims will now be classified as standard payment claims (up to $750,000) or complex payment claims
Read more…

Key cases that have affected building and construction – Part 2 NSW

The Building and Construction Industry (Security of Payment) Act 2009 (ACT) (“the Act”) has, to an extent, provided a simpler and more cost effective approach to resolving construction industry disputes arising from the non-payment of invoices. As most sections in the ACT legislation mirror the NSW legislation, which was created a decade prior to the Act, it
Read more…

Key cases that have affected building and construction – Part 1 NSW

The Building and Construction Industry (Security of Payment) Act 2009 (ACT) (“the Act”) has, to an extent, provided a simpler and more cost effective approach to resolving construction industry disputes arising from the non-payment of invoices. As most sections in the ACT legislation mirror the NSW legislation, which was created a decade prior to the Act, it
Read more…

Building and Construction Industry Security of Payment Amendment Bill NSW

  SOP NSW was created in 1999. Recent key changes were made in November 2013 with the Building and Construction Industry Security of Payment Amendment Act 2013 (NSW). The amendments apply to contracts entered into from 21 April 2014: a) The removal of the requirement to endorse a payment claim b) Mandatory deadlines for making progress payments
Read more…

Hot Property at Mills Oakley as lawyer wins prestigious accolade

Mills Oakley Special Counsel Pablo Fernandez has been named in the Property Council of Australia’s 30 Under 30 list, which recognises the industry’s best and brightest under the age of 30 at the time of judging. The 30 Under 30 list covers a broad spectrum of young professionals working in the property industry and Pablo
Read more…

Exclusion of Consequential Loss Case Note Update: Macmahon Mining Services v Cobar Management [2014] NSWSC 502

Summary A recent decision of the NSW Supreme Court (McDougall J) on a notice of motion provides a succinct analysis as to the current approach in interpreting clauses excluding or limiting liability for consequential loss. Background Macmahon as contractor and Cobar as principal entered into a design and construct contract for certain works for the
Read more…

Building and Construction Industry Security of Payment Amendment Bill 2013

Since the release of the report by Bruce Collins QC into insolvencies in the New South Wales building industry on 28 January 2013, the New South Wales Government foreshadowed the introduction of changes to the Building and Construction Industry Security of Payment Act 1999 (Act), designed to assist contractors and subcontractors in the industry to
Read more…

Property and Commercial Tips and Traps – March 2014

Curing breach of a lease- what is “reasonable time?” Landlords – be aware: If you want to re-enter the premises and terminate a lease for breach of a tenant’s covenant other than for payment of rent, you must serve a notice to remedy on the tenant providing the tenant, where the breach is capable of
Read more…

BIM – Coming soon to a project near you

At a glance Project owners and contractors are set to benefit from a new construction industry technology that improves project design and delivery. However, as Lindsay Stirton and Michelle Widmaier write, the technology is creating potential legal issues in terms of liability, confidentiality, copyright and how best to integrate BIM into contract documents.   BIM
Read more…

Last Clause Standing: Survivorship of Dispute Resolution Clauses on Termination

Summary A recent decision of the WA Supreme Court [1] provides a timely and instructive review of the law relating to the proper construction of commercial arbitration clauses that negotiators and drafters of commercial agreements should be mindful of. The Court held that: arbitration agreements are generally considered to be independent of the contract in
Read more…

Stop! Severance argument cut off by the Court of Appeal

BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd & Ors [2013] QCA 394 Executive summary Readers may recall that in May 2013 we discussed the decision of the Supreme Court of Queensland in BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd (No 2) [2013] QSC 67 in the publication
Read more…

How do i respond to a payment claim under the security of payment act?

  This article answers two questions How do I make a payment claim? How do I defend a payment claim? If you have received a payment claim, then you have become the respondent. If you are the recipient of a valid payment claim, you must respond in the appropriate time frames. Not responding is not an option
Read more…

Security of payments claim after contract termination

McConnell Dowell Constructors (Aust) Pty Ltd v Heavy Plant Leasing Pty Ltd [2013] QSC 269 Can a contractor submit a claim under a State security of payment act, after the contract under which the work was done is terminated by the principal? In Queensland the answer is likely to be “no” whilst in New South
Read more…

Changes on the way for the Security of Payments regime in New South Wales (SOPA)

Building and Construction Industry Security of Payment Amendment Bill 2013. As outlined in our March 2013 advisory note, legislative changes are now being proposed as a result of the Collins inquiry into insolvencies in the New South Wales construction industry. Last week the Building and Construction Industry Security of Payment Amendment Bill 2013 (Bill) was
Read more…

“Part of the land” – another potential avenue for BCIP Act disputation

Summary The recent Queensland Supreme Court decision of Agripower Australia Ltd v J & D Rigging Pty Ltd and Ors [2013] QSC 164 has called into question the application of the Building and Construction Industry Payments Act 2004 (Qld) (BCIP Act) to mining projects. Justice Margaret Wilson held that dismantling a mining plant on a
Read more…

Beware of Oral Promises that May Bind You

IWD No 2 Pty Ltd v Level Orange Pty Ltd [2012] NSWSC 1439. Introduction: The Supreme Court of New South Wales has again considered the question of ‘what constitutes a construction contract’ for the purposes of the Building and Construction Industry Security of Payment Act 1999 (NSW) (Act) and given it a very wide ambit.
Read more…

Inquiry into NSW Construction Industry Insolvency

Because of the string of recent collapses of various building and construction companies, the NSW Government’s Minister for Finance Mr Greg Pearce, commissioned Mr Bruce Collins QC to conduct an urgent inquiry into the construction industry. Mr Collins recently delivered his findings, making a number of recommendations. His report is currently on public exhibition until 21 February
Read more…

Macquarie Prestige Developments Pty Ltd v Cavasinni Constructions Pty Ltd

Introduction: The NSW Supreme Court has recently examined the ability of recipients of statutory demands to defend themselves from being deemed insolvent by raising an offsetting claim as defence to those demands under section 459H of the Corporations Act 2001 (Cth) (Act). In this case, the particular issue related to the sufficiency of the evidence
Read more…

Bauen Constructions Pty Ltd v Sky General Services Pty Ltd [2012] NSWSC 1123

Introduction: The NSW Supreme Court has examined the important issue of the 12 month limitation period for the service of payment claims under the Building and Construction Industry Security of Payment Act 1999 (the Act), in relation to the last date upon which construction work was carried out (or related goods and services supplied) on
Read more…

Construction contract or not a construction contract? That is the question…

In the recent decision in Thiess Pty Ltd v Warren Brothers Earthmoving Pty Ltd & Anor [2012] QCA 276 the Queensland Court of Appeal considered the application of the Building and Construction Industry Payments Act 2004 (Qld) (BCIP Act) to the mining industry. Executive Summary The Queensland Court of Appeal has confirmed the decision of
Read more…

The Dinsey effect: no licence relief for permanently excluded individuals

The failure of multiple companies from the same set of circumstances, even where they are related entities, may still lead to an licensee being classified as a permanently excluded individual under the Queensland Building Services Act 1991 (Qld) (‘QBSA Act’). Previously, it was thought that due to section 56AC(6) of the QBSA Act, a licensee
Read more…

Indemnity costs – is your contract clear cut?

Executive Summary The Victorian Court of Appeal has considered and summarised previous decisions in relation to contractual provisions that may lead to an award of costs on an indemnity basis. In Chen & Anor v Kevin McNamara & Son Pty Ltd & Anor [2012] VSCA 229, His Honour Redlich JA (who wrote the unanimous judgment
Read more…

SOPA Update

A recent case has widened the interpretation of what can constitute a “construction contract” within the meaning of the Building and Construction Industry Security of Payment Act (SOPA). In the case of Machkevitch v Andrew Building Constructions [2012] NSWSC 546 an individual of a developer company gave an oral guarantee to the builder regarding a
Read more…

High Court Reconsiders Tribunal Appeal Provisions

The High Court has shed new light on appeals from inferior courts and tribunals in the decision of Kostas v HIA Insurance Services Pty Limited [2010] HCA 32.1 The case is the first occasion that the High Court has been called upon to consider a statutory appeal from a decision of the Consumer, Trader and
Read more…

Privacy Policy | Terms of Use