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Contract & Tort

Casewatch publications are intended to be a topical
report on recent cases in the construction,
development and project industries.

They are not intended to be a substitute for
legal  advice and no liability is accepted by
Doyles Construction Lawyers or
Mosaic Project Services Pty Ltd.

 More Casewatch Reports are on the Doyles Construction Lawyers Web Site 

Full List sorted by Topic: - Adjudication - Arbitration - Contract & Tort -


Southern Cross v Magill Earthmoving
The NSW Supreme Court considered whether an adjudicator’s reasoning was so unreasonable it should squash a determination. It found in light of the statutory requirement to determine often difficult questions within a tight timeframe, unless it is found that there is a jurisdictional error or that the decision made is one that no reasonable person could have made the determination should stand.  [View Casewatch PDF]

Valeo Construction v Pentas
The Victorian Supreme Court has found that a revised payment claim constituted a prohibited second claim in relation to same reference date – Building and Construction Industry Security of Payment Act 2002 (Vic), s. 14(8).  [View Casewatch PDF]

Fitz Jersey Pty Ltd v Atlas Constructions
The NSW Court of Appeal has reinforced the robust procedures for the recovery of an adjudicated amount under the Building and Construction Industry Security of Payment Act 1999.  [View Casewatch PDF]

Shade Systems v Probuild Constructions
The NSW Supreme Court has reinforced that adjudication determinations under the Building and Construction Industry Security of Payment Act 1999 (NSW) cannot be challenged due to errors of law provided the Adjudicator is acting within jurisdiction.  [View Casewatch PDF]

Class Electrical Services v Go Electrical
Credit Applications are not necessarily construction contracts under Building and Construction Industry Security of Payment Act.  [View Casewatch PDF]

Illawarra v Denham
This case highlights the importance of identifying in a Notice of Termination, the effective date and time of termination and the effect it may have on reference dates giving rise to rights to progress claims under the Act and the inclusion of security does not give rise to an invalid claim.  [View Casewatch PDF]

Nazero Group v Top Quality Construction
Those who challenge adjudication determination must pay for the privilege. The general policy of the Building and Construction Industry Security of Payment Act 1999 (NSW) is to require a respondent to pay into Court of the adjudicated amount, when the respondent commences proceedings to set aside an adjudication determination.  [View Casewatch PDF]

Austruct Qld Pty Ltd v Independent Pub Group
The Supreme Court of Queensland confirms that a party issuing a payment claim must act honestly and to not mislead.  [View Casewatch PDF]

Denis McFadden v Daniel John Turnbull
The New South Wales Supreme Court has recently confirmed that for the Building and Construction Industry Security of Payment Act 1999 (NSW) to apply, no party to the contract must reside or propose to reside in the premises.  To retain the protection of the Act, builders are best to contract only with a company.  [View Casewatch PDF]

Rail Corporation of NSW v Nebax Constructions
The New South Wales Supreme Court has recently confirmed that arguments that object to the jurisdiction of an adjudicator do not need to be part of a party's Payment Schedule, although it would be wise to include them in the Payment Schedule if they are likely to arise. The Court also highlighted the dangers of endorsing every invoice as a Payment Claim under the Act.  [View Casewatch PDF]

John Holland Pty Ltd v Walz Marine Services Pty Ltd
The Supreme Court of Queensland has recently confirmed the importance of fully defining all reasons for non-payment in a Payment Schedule as failing to do so may prevent raising new reasons later. Failure to expressly deny facts in the Payment Schedule may amount to an admission that those facts are not disputed. This case will have immediate impact on those responsible for the content of a Payment Schedule in reply to a Payment Claim.  [View Casewatch PDF]

Hansen & Yuncken -v- Ericson t/a Flea's Concreting
The Supreme Court of Queensland has recently confirmed that a respondent challenging a determination under the Security of Payments legislation will be required to secure interest as well as the adjudicated amount pending the hearing of the challenge to that adjudication determination. This case will have an immediate impact on the way in which successful claimants require security from respondents pending the hearing of a substantive claim to off set the adjudicated amount.  [View Casewatch PDF]

Steel v Beks
The New South Wales Supreme Court has recently confirmed the importance of proper service of payment claims under the BCISOP Act. Failure to properly serve a payment claim (or any other notices under the Act) in accordance with the provisions of the Act will render an adjudicator’s determination void in the event an adjudicator proceeds to determine the claim. This case hase immediate impact on those responsible for the service of payment claims or other notices under the Act to ensure that it service properly effected.  [View Casewatch PDF]

Parsons Brickerhoff v Downer EDI
The Supreme Court of New South Wales has recently confirmed the breadth of the meaning of the “ordinary place of business” in respect of the BCISOP Act to include “any place at or from which the person usually engages in activities which for a not insignificant part of the person’s business". This case will have immediate impact on those serving and receiving payment claims, to ensure that they are (i) served at an ordinary place of business or (ii) at a registered office by formal service.  [View Casewatch PDF]

Lanmac v Andrew Bruce Wallace
The Supreme Court of New South Wales has recently confirmed the requirement for payment into Court of an amount determined by an adjudicator in the event a respondent wishes to challenge an adjudicator’s determination. This case illustrates that whilst determinations made under the Security of Payment legislation are interim determinations, to preserve the rights of a claimant to secure payment, an amount equal to the determination will generally need to be paid into Court if a challenge is made by a respondent. [View Casewatch PDF]

CC No 1 & Anor v Reed
The New South Wales Supreme Court has reinforced a contractor’s right to include in payment claims made under the Building and Construction Industry Security of Payment Act, amounts which have been the subject of previous payment claims, but which remain unpaid. [View Casewatch PDF]

Watpac -v- Austin Corp
The New South Wales Supreme Court has recently confirmed the position that the reagitation of a claim in a successive adjudication application, that has already been determined in a previous application, amounts to an abuse of process and is susceptible to the doctrine of issue estoppel. [View Casewatch PDF]

Reed v Eire
The New South Wales Supreme Court has recently examined whether service by way of email could be considered as valid service for the purposes of the Building and Construction Industry Security of Payment Act (NSW) 1999; and found, with reference to the Electronic Transactions Act (NSW) 2000, that service could be validly affected by way of email. [View Casewatch PDF]

Urban Traders v Paul Michael
The New South Wales Supreme Court has recently sought to define the circumstances for the application of the Dualcorp principle, promoting the operation of the BCISOP Act, to permit, in certain circumstances an opportunity to submit further payment claims including parts of payment claims which have previously been claimed. This case will have immediate impact on those drafting statutory payment claims and adjudication applications, to ensure that they include in their claims all necessary material and submissions in support of that claim and manage the claims process carefully. [View Casewatch PDF]

Reed Construction v Dellsun
The Queensland Supreme Court has recently confirmed that a creditor’s statutory demand issued pursuant to the Corporations Act (Cth) on the basis of an adjudicator’s determination under the Building Construction Industries Payments Act 2004 (QLD) may be invalid on the basis of a genuine dispute or an offsetting claim. This case will have immediate impact on those considering issuing creditor’s statutory demands in order to recoup a progress claim affirmed by an adjudicator. [View Casewatch PDF]

University of Sydney v Cadence
The New South Wales Supreme Court has recently broadened the application of the Dualcorp principle, narrowing the operation of the BCISOP Act, to exclude the opportunity to submit for adjudication a claim, or even part of a claim which has previously been the subject of an adjudicator’s determination. Those drafting statutory payment claims and adjudication applications, will need to ensure that they include in their claims all necessary material and submissions in support of that claim to avoid being precluded from issuing another claim. [View Casewatch PDF]

Dualcorp v Remo Appeal
The New South Wales Court of Appeal recently found that an adjudicator’s decision under the security of payment legislation binds a subsequent adjudicator in his/her determination and potentially the court. This case draws attention to the importance of the requirement to make comprehensive submissions in an adjudication application. [View Casewatch PDF]

Integral Energy Australia v Kinsley
The Supreme Court of New South Wales recently examined whether the adjudicator’s decision under the security of payment legislation was invalid where the adjudicator did not consider some submissions made by the respondent in the adjudication response. This case draws attention to the importance of making comprehensive submissions in the payment schedule. [View Casewatch PDF]

Skinner v Timms
The Supreme Court of Queensland recently examined whether the adjudicator’s decision under the security of payment legislation was void where the payment claim was served prior to the reference date, and the subsequent payment schedule was improper in its form.  This case calls attention to the importance of compliance with the reference date according to the terms of contract and the security of payment legislation. [View Casewatch PDF]

Zebicon v Remo Constructions
The New South Wales Supreme Court has recently examined whether a payment claim served by facsimile amounted to effective service in circumstances where it was not received by the respondent due to a malfunction of the respondent’s facsimile machine and found that where an electronic means of service is adopted under the Building and Construction Industry Security of Payment Act 1999, both the claimant and the respondent are responsible for its transmission, and the functionality of their equipment. [View Casewatch PDF]

Walton Constructions (Qld) v Robert Salce
The Queensland Supreme Court has recently examined the scope of the definition of construction contract and whether a guarantee falls within the scope of the Security of Payment Act, and makes a clear distinction between the provision of a guarantee and the definition of a “construction contract” under the Construction Industry Payment Act 2004 (Qld). [View Casewatch PDF]

Broad Construction v Vadasz
This case illustrates that where a report (or other evidence) is relied upon in an adjudication response, an adjudicator may refuse to consider the report if it was not properly included in the Payment Schedule, consequently the failure to explain the full basis of negating the payment claim can be fatal to a defence. [View Casewatch PDF]

Shorten v David Hurst Constructions
The New South Wales Supreme Court examined the impact of the lack of proof available for the proper service of an adjudication application and applied an ancient principal that no person could profit by his own wrong. This case illustrates the need for careful review of documents prior to service and also the need to ensure that claims and application are properly served on all parties. [View Casewatch PDF]

Katherine v The CCD Group
The NSW Supreme Court has determined that in some instances the Courts may amend a portion of a determination under the Building and Construction Industry Security of payments Act where an adjudicator has determined an amount of interest under a construction contact which the Court may construe as a penalty. [View Casewatch PDF]

Berem v Shaya Constructions
This case illustrates that the misdescription of parties in a payment claim may invalidate an adjudication based on such a claim as no relevant construction contract exists to find jurisdiction for the Adjudicator. [View Casewatch PDF]

Bezzina v Deemah 
This case illustrates that careful submissions as to jurisdiction are necessary to avoid challenge in higher Courts and may have immediate application to contract managers and the way in which they administer contracts, in order to avoid losing claims which may otherwise succeed. [View Casewatch PDF]

Rojo Building Pty Limited v Jillcris Pty Limited
This case illustrates that a careful election between alternative elections under the Security of Payment legislation avoids an unfortunate loss of advantage to the Claimant. This judgement may have immediate application to contract managers and the way in which they administer contracts, in order to avoid losing rights which may otherwise exist under the Security of Payments legislation. [View Casewatch PDF]

Tsoukatos v Mustafa
This case illustrates that the Courts will examine and weigh up conflicting evidence in circumstances where service is challenged, and that each respective party must be able to sufficiently discharge their burden of proof to establish that service was either effectively carried out or not received at all. This judgement may have immediate application to parties to Security of payment disputes where personal service is not practicable and there is potential for a dispute as to the effectiveness of service. [View Casewatch PDF]

Halkat Electrical v Holmwood Holdings
The Court of Appeal of New South Wales recently held that an Adjudicator who makes a determination as to the value of a Payment Claim on inappropriate grounds does not perform their proper function under the Act. This case provides guidance to Adjudicators and parties in all states on the preparation of claims [View Casewatch PDF]

Cant Contracting v Casella.
The Supreme Court of Queensland recently held that contractors cannot rely on the Building and Construction Industry Payment Act 2004 to recover payment for work carried out without a licence in breach of the Queensland Building Services Authority Act 1991. [View Casewatch PDF].

Inten Constructions v Refine.
The Supreme Court of New South Wales recently confirmed that the requirement for natural justice under the Act must be considered in light of the framework of the SOP Act, which does not give parties an unlimited opportunity to make submissions. [View Casewatch PDF].

Queensland v Epoca Constructions.
The Supreme Court of Queensland recently confirmed that judicial review of Adjudicator’s decisions is available in Queensland, but in reviewing a decision, the Court must be satisfied that there is a clear error of law before it will set aside all or part of the determination. [View Casewatch PDF]

Abigroup v Riverstreet.
The Supreme Court of Victoria recently confirmed its position that recovery of the claimed amount as a debt due pursuant to section 16(2)(a) of the Act is only possible where there is no real question to be tried. [View Casewatch PDF]

JBK Engineering v Brick & Block.
The Supreme Court of New South Wales held recently that the adjudicator’s task is to resolve the issues between the parties, and found that the Adjudicator is only required to consider an application based on the arguments raised by the parties, and the reasons given by the Adjudicator demonstrated that he had considered the progress claims and whether there was a reason for not allowing the claim. [View Casewatch PDF]

Acclaim v Loewenthal.
The New South Wales District Court recently held that if at the time of entering into the contract for residential building work it is the intention of the owner to reside in the premises and this is made clear to the contractor, then the Act will not apply to the construction contract. [View Casewatch PDF]

Falgat v Equity (Appeal).
Given the strict timetable of the Act, parties should ensure that Payment Claims and Payment Schedules are served carefully and in accordance with the Act and other statutes to avoid later disputes. Delivering documents to a companies registered officer remains the most reliable way to ensure correct service. [View Casewatch PDF]

Bitannia v Parkline.
The Supreme Court recently held that contractors should ensure that Payment Claims, and their service, are carefully executed and are not misleading to ensure that their rights to judgment under the Act are not affected. [View Casewatch PDF]

Baulderstone v Queensland Investment Corp.
The Court will consider whether a document is a Payment Schedule by reference to the provisions of the Act. In doing so, the Court tends to avoid being overly technical, but care should still be taken when preparing a Payment Schedule to ensure that no doubt is left as to whether the document is a Payment Schedule under the Act and that the requirements of the Act are met. [View Casewatch PDF]

Fifty Property v O'Mara.
The question of whether a construction contract exists between the parties to is a jurisdictional fact that is subject to review by the Courts and parties should ensure that any contract is clearly reduced to writing and executed to avoid later disputes. [View Casewatch PDF]

Wooding v Eastoe.
The Supreme Court recently held that it is for an Adjudicator to decide who the parties to a construction contract are, and an error in determining this question will not invalidate an Adjudication Determination. [View Casewatch PDF]

Procorp Civil Pty Ltd v Napoli Excavations and Contracting Pty Ltd & Ors.
The time for raising issues with a Payment Claim is in a Payment Schedule. Issues raised after this time may not receive consideration by an Adjudicator, much less by the courts, and do not require the Adjudicator to investigate by inviting further submissions. [View Casewatch PDF]

Brookhollow Pty Ltd v R&R Consultants Pty Ltd & Anor
An Adjudicator should not to 'Rubber Stamp' Payment Claims" but should consider all issues raised by the parties in an Adjudication, as a failure to do so on a major issue may indicate a lack of good faith, voiding the determination. [View Casewatch PDF]

De Martin & Gasparini v State Concrete
The Supreme Court recently confirmed that an Adjudicator who wants to decide a matter on which the parties agree on some other basis must give the parties notice and an opportunity to respond to the point, or the determination will be declared void. [View Casewatch PDF]

Pacific General v Soliman
The NSW Supreme Court held that the absence of relevant material from Pacific does not entitle the Adjudicator to simply award the amount of the claim without addressing its merits, which as a minimum involve determining whether the construction work identified in the Payment Claim has been carried out, and what is its value. To simply rubber stamp the Claimant’s Payment Claim may result in the Adjudication Determination being held void. [View Casewatch PDF]

Holmwood v Halkat
This case stands for the proposition that an Adjudicator must act honestly, conscientiously and not capriciously, in determining an Adjudication Application. Further, an Adjudicator’s failure to evaluate a Payment Claim in the context of a payment Schedule and the simple acceptance of only one party’s assessment may demonstrate a failure to act in good faith. [View Casewatch PDF]

Energy Australia v Downer
This case stands for the proposition that an interlocutory Adjudication Determination may not be valid if the claims contained within the Payment Claim and Adjudication Application are of a different nature. Further, notwithstanding the issue as to validity of an Adjudication Determination, a Court may not interfere with the payment process under the Act. [View Casewatch PDF]

Glen Eight v Home Building
This case stands for the proposition that an interlocutory injunction is likely to be granted where an Adjudicator determines an Adjudication Application in a manner which is not satisfactory or not as he/she indicated is the proper way, his decision may be open to attack. [View Casewatch PDF]

Air Dynamics v Durham
Where an Adjudication Certificate has been filed as a judgment debt and paid, the Courts are unlikely to entertain any further action that an Adjudication Determination is void, as the purpose of the Act will be exhausted. [View Casewatch PDF]

Energetech v Sides
This case stands for the proposition that an Adjudicator is entitled to finally determine a dispute as to whether a stage has been reached in a contract for staged payments. [View Casewatch PDF]

Lucas v City of Sydney
This case confirms the proposition that the Act is a strict liability scheme and that cross-claims for estoppel and misleading and deceptive conduct, in the context of summary judgment, are outside the scheme of the Act and unlikely to be entertained by the Courts. [View Casewatch PDF]

Timwin v Façade
In determining an Adjudication Application, it is wise for an Adjudicator to consider all submissions, even in the alternative, because to not do so may leave an Adjudicator open to the decision that he or she did not exercise his or her powers in good faith. [View Casewatch PDF]

Taylor v Brick Dept
When a claimant is not insolvent, but may become insolvent due to non payment of an adjudicated amount, the Respondent will not be permitted an order of stay of execution of a judgment debt. [View Casewatch PDF]

Taylor v Brick
A payment claim sent by facsimile, whether within or outside normal office hours on a business day, is regarded as being served on that day (NSW only –  Victoria has different requirements). [View Casewatch PDF]

Facade v Timwin
A stay to maintain a payment into court after a decision that an Adjudicator’s Determination is void, is unlikely to be granted merely by reason of the existence of a reasonable appeal. [View Casewatch PDF]

Cooper v Veghelyi (Appeal)
This case confirms that a respondent is required to pay into the court as security the unpaid portion of an award pending the final determination of those proceedings. Further, this case highlights the interim nature of the Act and that pursuant to section 32 of the Act a respondent is entitled to an appropriate credit for the Adjudicated Amount under the Contract. [View Casewatch PDF]

Tolfab v Tie
A short form Payment Schedule which provides a clear indication of the value of the work may be sufficient to allow a Respondent to rely on reasons in its Adjudication Response if it puts the Claimant on proper notice. Further, an Adjudicator is wise to consider submissions in the alternative where practicable. [View Casewatch PDF]

Minister v Contrax - Appeal
Ay provision in a construction contract that diminishes, displaces or delays a contractor’s entitlement to work may be void (and if void presumably void for all purposes). Provisions subject to section 34 includes those relating to the determination of reference dates and the calculation of the amount of progress payments even though the Act expressly refers to such provisions
. [View Casewtch PDF]

Falgat v Masterform
An Adjudication Determination is conclusive and res judicata is applicable as the Adjudicator is akin to a judicial tribunal but that a genuine dispute for the purposes of setting aside a statutory demand can still exist.
[View Casewtch PDF]

Reiby v Winterton
An Adjudication Determination is void if there is an apprehended bias on the part of the Adjudicator and very high standards are expected by the Court. The more concerning aspect is that a disgruntled party to a determination under the Act may have an escape mechanism and avoid the effect of a determination, in the event that the determination is unfavourable, by making a request for a different Adjudicator on the grounds of bias.
. [View Casewtch PDF]

Co-ordinated v Climatech
Claims for delay damages can be the subject of Payment Claims under the Act, if provided for by the terms of the particular Contract between the parties but care still should be exercised when preparing the Payment Claim. [View Casewtch PDF]

Schokman v Xception
To apply to adjudication when the Respondent fails to provide a payment schedule, the Claimant must comply strictly with the statutory timeframe. [View Casewtch PDF]

Coordinated Constructions Co v J M Hargreaves & Ors
An Adjudicators Determination is not void if it includes an incorrect amount in the Adjudicated Amount [View Casewtch PDF]

TQM v Dasein
Care should be taken to ensure the Adjudication Application is actually received [View Casewtch PDF]

Review of the BCISOP Act 2004
Review of the Act in NSW - for amendments due in 2005 [View Casewatch PDF]

Estate Property Holdings v Barclay Mowlem Construction
Some work included in a payment claim must have been performed in the last 12 months [View Casewatch PDF]

Brodyn v Davenport (Appeal)
Judicial review is not available to parties seeking relief from an erroneous decision by an Adjudicator, except in very limited circumstances [View Casewatch PDF]

Digital v QX Australia
An interlocutory injunction may be granted where there is a dispute to the validity or service of a payment claim [View Casewatch PDF]

Holdmark Developers v GJ Formwork
Only one final payment claim can be made at (or within 12 months of) the termination of the contract or cessation of works [View Casewatch PDF]

Minister for Commerce v Contrax Plumbing & Ors
A provision in a contract that delays or diminishes a contractors entitlement to payment under the Act will be void [View Casewatch PDF]

Barclay Mowlem v Tesrol Walsh Bay
To 'provide' a payment schedule means the process of delivery must be initiated rather then actual receipt by the Claimant [View Casewatch PDF]

Isis Projects v Clarence Street
The sufficiency of a payment claim depends on the conduct of the parties and the history of the contract. The Court appears to be adopting a liberal approach [View Casewatch PDF]

Hawkins Construction v Macs Industrial Pipework
The Act applies to subcontracts entered into after the commencement date [View Casewatch PDF]

Baulderstone Hornibrook Pty Ltd v HBO DC Pty Ltd.
Summary judgement provisions - various states [View Casewatch PDF]

Bourke Road Pty Ltd v Boxster Constructions Pty Ltd
A creditors statutory demand for a debt due must not be submitted before the expiry of the prescribed time for payment [View Casewatch PDF]

John Holland v Cardno MBK
The Adjudication Application should not contain a new contractual basis or new supporting documentation that was not included in the Payment Claim [View Casewatch PDF]

Transgrid v Walter Construction Group 2004
The Adjudicator is not bound by the Superintendents Certification [View Casewatch PDF]

Kembla Coal Coke v Select Civil & Ors
A claim for preparation costs, extension of time, delay and/or disruption costs may be included in a payment claim [View Casewatch PDF]

Arbitration and other ADR

Sanders v Gemmill Homes Pty Ltd
The WA State Administrative Tribunal has found that both Builders and Owners should note the benefit of the Builder rectifying his defects as often this is beneficial to both parties and is favoured by the Courts or Tribunal. [View Casewatch PDF]

Fluor Australia v Santos Limited
The Supreme Court of QLD has recently upheld that the the dispute resolution clauses in the contract should be complied with before Coutrt proceedings can continue. [View Casewatch PDF]

Limin James Chen & Anor v Kevin McNamara & Sons Pty Ltd & Anor
Following a dispute between the parties, an Arbitration Award was made in favour of the Defendant and the Plaintiff sought leave for judicial review. The judgement demonstrates the difficulty in appealing the decisions of arbitrators and the alleged errors need to be evident or obvious, rather than arguable. [View Casewatch PDF]

Haissam Assafiri v The Shell Company of Australia
This case has reinforced the requirements of expert witnesses in providing their opinions in litigation to ensure the report adequately sets out a logical chain of reasoning in the formation of their conclusions. [View Casewatch PDF]

Tryhaz v Fielder
This case confirms the proposition that the Court will not ordinarily interfere with the Referee’s Report and will not ordinarily allow fresh evidence or submissions which could have been made before the Referee. [View Casewatch PDF]

Liverpol v Casbee
A party to an arbitration must exercise due diligence by referring a dispute to arbitration without delay. However, for an arbitration to be terminated a party must demonstrate that there has been an inexcusable delay and a serious risk of prejudice, that is by demonstrating the unavailability of witnesses and loss of documents or other sources of information. [View Casewatch PDF]

Brecon Builders v Ripa Steel

A breach of natural justice is likely to be committed where an arbitrator decides a major part of a claim without giving the parties fair opportunity to be heard [View Casewatch PDF]

Contract (including variations) & Tort

Stepanoski v Aslan
The New South Wales Supreme Court deciding which Construction Contract is in existence and binds the party in the situation where a Cost-Plus contract was in existence, and the parties’ executed a lump sum contract some months later and backdated it to the date of the Cost-Plus Contract.
  [View Casewatch PDF]

Mann v Paterson Constructions Pty Ltd
The Victorian Supreme Court of Appeal decision on a claim made in quantum meruit as a result of one party accepting the repudiation of contract made by the other party. The Court will have regard to actual costs when assessing the amount payable, however is not bound by the actual cost under contract, as the contract has ceased. In addition, the case further highlights that claims in quantum meruit for variations are not precluded under s.38 of the Domestic Building Contracts Act 1995, where the variation is one that has been agreed to orally.
  [View Casewatch PDF]

Champion Homes v Commissioner for Fair Trading
The case highlights the strict disciplinary liability upon the Builder in relation to the work of its subcontractors.
  [View Casewatch PDF]

Liquidated damages - overview
A brief summary of the differences between 'liquidated damages' and unenforceable penalty clauses in contracts.
  [View Casewatch PDF]

Metricon Homes v Hooper
Metricon failed in its bid to overturn a VCAT damages award over damage to a Tarneit house from a poorly constructed concrete slab.
  [View Casewatch PDF]

Mushroom Composters v Robertson
This case from the NSW Court of Appeal highlights the importance of identifying in a contract all essential terms as finally agreed in order to avoid the contract being unenforceable.
  [View Casewatch PDF]

Haridemos v Labathas
The ACT Supreme Court has determined that when deciding whether an appointed person is an expert to make his expert determination or an arbitrator to make his award, the Court will look at the function, decision, and facts such as: the words used, the requirement stated in the Deed, and the qualification of the appointed person. The Court concluded that the parties agreed to appoint an expert. As a result, it was held that the Court does not have jurisdiction to hear an appeal from an expert determination.
  [View Casewatch PDF]

Koompathtoo Local Aboriginal Land Council v Sanpine Pty Limited
Koompathtoo were able to establish that the number of breaches of non essential contract terms by Sanpine were many and their consequences serious. The termination of the contract was justified as the breaches deprived Koompathtoo of a substantial part of benefit for which it contracted.
  [View Casewatch PDF]

The Owners - Strata Plan No 76674 v Di Blasio
The News South Wales Supreme Court recently expounded on the duty of a building owner to “act reasonably” in mitigating the losses suffered by it as a result of a builder’s breach of the building contract.  In so doing, the Court looked into the parties’ conduct in assessing whether the building owner provided the builder with a “reasonable opportunity” to rectify building defects and whether the builder may be considered to have failed in taking “reasonable steps” to undertake rectification of the defects.
  [View Casewatch PDF]

Electricity Generation Corporation -v- Woodside Energy Ltd
Verve Energy (the buyer) and Woodside (the seller) were parties to a long term gas supply contract which required Woodside to “use reasonable endeavours” in order to make additional gas available subject to all of their relevant commercial imperatives. But was is interpretation of the “reasonable endeavours” clause?
  [View Casewatch PDF]

Crown Melbourne Limited v Cosmopolitan Hotel
Cosmopolitan were tenants of Crown Melbourne and their leases did not contain an option to renew. Cosmopolitan contended that landlord gave them oral assurances that if they undertook major refurbishment works they would be ‘looked after with a further term’ and soon after the refurbishment they received a notice to vacate. Was the oral assurance enforceable?
  [View Casewatch PDF]

McCloy v Manukau Institute of Technology
The New Zealand High Court has recently clarified the effect of “step in” clauses which are sometimes found in construction contract default clauses or in tripartite deeds. Parties should be vigilant to register their interests on the Personal Properties Securities Register
.  [View Casewatch PDF]

Verve Energy -v- Woodside Energy Ltd
The Western Australian Court of Appeal provides clear guidance regarding “reasonable endeavours” clauses in the context of the contract and the importance of those obligations
.  [View Casewatch PDF]

Perpetual_Trustee-v-CTC Group (No 2)
The New South Wales Court of Appeal decision has recently demonstrated a firmer approach to the exclusion of the apportionment provisions of the Civil Liability Act 2002 which has significant implications for contract managers when settling the terms of a construction or other contract
.  [View Casewatch PDF]

Leighton v Arogen
The New South Wales Court of Appeal decision has recently demonstrated that the Court is reluctant to grant mandatory interlocutory relief but will do so if necessary on the balance of convenience factors
.  [View Casewatch PDF]

North Sydney Leagues Club v Syndegy Protection Agency
The New South Wales Court of Appeal has recently reaffirms the principle that in the event of a contract being wrongfully terminated, the plaintiff is entitled to such damages that would place them in the same position as it would have been had the contract been preformed. Claims should be carefully calculated to give full legal recovery
.  [View Casewatch PDF]

Spiers Earthworks  v Landtec Projects
The Supreme Court of Western Australia has recently reaffirmed that liquidated damages may be void as penalties. If challenging a liquidated damage clause a full review of the circumstances at the time the contract should be conducted
.  [View Casewatch PDF]

Precision Coating Services v Building Equipment Services
The New South Wales Supreme Court has recently confirmed that a finding based on no evidence constitutes an error of law. Contract Managers should ensure that even the obvious is fully proved
.  [View Casewatch PDF]

Machkevitch v Andrew Building Constructions
The New South Wales Supreme Court has recently confirmed that construction contracts include any arrangement which gives rise to an obligation to pay for construction work
.  [View Casewatch PDF]

McGrath Corporation Pty Ltd V. Global Construction Management Pty Ltd & Ian Vincent Taylor
The Supreme Court of Queensland recently held that a project manager who was late in reporting non performance of a subcontractor to a principal was 50% responsible for the resulting loss and expense. Project Managers should be careful to fully document the warnings given to their principals to avoid the meltdown if things go amiss later
.  [View Casewatch PDF]

Laing O'Rourke (BMC) Pty Ltd -v- Kirwin
The Western Australian Supreme Court has recently confirmed the duty of employers to take all practicable steps to protect employees but declined to expect design checks on principal supplied accommodation.  This realistic approach continues the trend and comments adopted in Kirk’s case (below) and comes as a relief to employers trying to develop realistic safety programs
.  [View Casewatch PDF]

2144 Broke Road v ACN 062 859 358 (previously Austec Panel Systems Australia Pty Limted)
The Supreme Court of New South Wales has recently examined the range of damages which a plaintiff may claim as part of its loss and the effect of not notifying a party to a contract of the potential loss. This case illustrates it is important to ensure the other party is aware of the potential losses if the other party breaches the contract and will have immediate impact on the way in which parties to agreements put one another on notice of the potential loss in order to preserve their rights in the event of a claim
.  [View Casewatch PDF]

Kell & Rigby Holdings Pty Limited v Lindsay Bennelong Developments Pty Ltd
The Supreme Court of New South Wales has recently examined the impact of a Superintendent’s conduct when it may be considered as unfair to the contractor, and consequently impact on contractual rights of the Principal. This case will have immediate impact on the way in which contract administrator’s and superintendents interact and administer their contracts. Careful advice is necessary before acting in the interests of the Principal only
.  [View Casewatch PDF]

Kirk v Industrial Relations Commission 
The High Court of Australia has recently made a major statement on the appropriate approach to be taken to the onus of proof for industrial and other offences and eased what has been a substantial burden on employers in the past. This case will have immediate impact on the way in which prosecutions under the OH&S legislations are conducted, as well as the range of cases which are likely to be prosecuted by the relevant authorities
.  [View Casewatch PDF]

Costain Limited v Charles Haswell & Partners Pty Limited
The England and Wales High Court has recently examined a contractor’s entitlement to seek reimbursement for prolongation costs incurred by it as a result of failed engineering advice. Whilst the Court was satisfied that there was a likely delay as a result of Haswell’s advice, it was not satisfied that Costain satisfied the tests required to establish an entitlement to general site overheads as prolongation costs
.  [View Casewatch PDF] for more detailed consideration, see: Assessing Delay and Disruption - Tribunals Beware.

Strata Plan v Reed
The New South Wales Supreme Court has recently confirmed the application of the Home Building Act (1989), and the statutory warranties provided for by that statutory regime, as being applicable to subsequent owners of properties falling within the scope of that Act. This case will have immediate impact on
builders who need to be aware of the scope of their liability and warranties provided in respect of their work.  [View Casewatch PDF]

Southern Cross Constructions v Salfa
The New South Wales Supreme Court has recently examined examined a contractor’s rights to secure payment under a building contract, which might otherwise have not been possible due to the restrictions provided under the Home Building Act 1989. This case will have immediate impact on those procuring and securing payment for building work on residential dwellings, in these tough times
.  [View Casewatch PDF]

Roluke v Lamaro
The New South Wales Supreme Court has recently examined the heads of damages which a party may claim in respect of a diminution in market value by reason of faulty workmanship and found that the Courts may allow for an additional head of damage, namely, diminution in market value to the structure where a nexus can be shown between the defective workmanship and the reduced market value
.  [View Casewatch PDF]

Dualcorp v Remo
This case illustrates that
where a contract provides for a vague procedure for dispute resolution (through a poorly drafted dispute resolution mechanism), the Courts are not willing to allow an obscure and uncertain clause to operate to exclude the jurisdiction of the Court, particularly in circumstances where the clause on its interpretation is not reflective of the parties’ apparent intentions.  [View Casewatch PDF]

Lumbers v Cook
This case demonstrates the traditional position that in normal circumstances a subcontractor will have no claim against a property owner for work done on the property. If the subcontractor wished to have payment secured by the property owner a separate agreement or special relationship would be required.  [View Casewatch PDF]

Multiplex Constructions UK v Honeywell Control Systems
The English High Court has recently examined the entitlement of contractors to extensions of time with respect to the preventative conduct of principals and the impact of that conduct on whether time is at large. This case illustrates that careful contract administration is necessary to avoid loss of entitlement to extension of time by a contractor.  [View Casewatch PDF]

Perum Building  Construction v Tallenford
This case illustrates the importance of understanding the terms of the contract, clearly defining the nature of the contract, the scope of work, and also underlines the importance of negotiation of the contract terms ensuring that there are adequate provisions to accommodate latent conditions, variations or misdescriptions.  [View Casewatch PDF]

Sweeney v Boylan Nominees
This case illustrates the importance of proper engagement of contractors in order that the principal is not vicariously liable for the contractors default.  The terms of engagement should clarify the varying indicia of the independent contractor, no control over way in which the work was done, the contractor’s provision of tools, equipment, uniform, transport and payment for services rendered and whether the contractor is to be presented as part of the defendant’s organization.  [View Casewatch PDF]

Houghton v Arms
This case illustrates the reach of the Fair-Trading legislation and the remedies available against individual employees for misleading or deceptive conduct they are alleged to have performed as part of their employment. It may have interesting application to officers of a company who mislead others into trading with the company just prior to administration or winding up.  [View Casewatch PDF]

Thiess v Placer
This case stands for the proposition that good faith involves goodwill, co-operation and honesty between the parties and this extends to the reasonableness and fairness in pricing.  [View Casewatch PDF]

Royal Botanic v South Sydney
The boundaries of the duty of good faith have yet to be fully determined but the Courts expect fairness and reasonableness from the parties.  [View Casewatch PDF]

John Holland v Majorca
This case stands for the proposition that Architects do not owe a duty of care, and are not directly liable, to Builders under a JCC Contract.  [View Casewatch PDF]

Hughes v Air Services
This case stands for the proposition that the Courts expect a standard of fairness in contracts. A duty upon the parties of good faith and fair dealing in the performance of contracts may be implied and compliance with agreed tender process is covered by the duty.  [View Casewatch PDF]

Far Horizons v McDonalds
This case stands for the proposition that an implied duty of good faith obliges each party to a contract to exercise the powers conferred upon it in good faith or reasonably, and not capriciously or for some extraneous purpose.  [View Casewatch PDF]

Baulderstone v Qantas
This case stands for the proposition that a Superintendent must carefully consider and resolve a Contractor’s claim on its merits and must not be unfairly influenced by the Principal. Further, a construction programme is likely to be considered by the Courts as a statement of intention or expectation rather than a contractually binding timeframe.  [View Casewatch PDF]

Alcatel v Scarcella
This case stands for the proposition that a duty of good faith, both in performing obligations and exercising rights may, by implication, be imposed upon parties as part of a contract. It extends to prohibit unreasonably encouraging third parties to improve obligations on the other contracting party for factual advantage.  [View Casewatch PDF]

Kane v Sopov
This case stands for the proposition that where the Superintendent does not act fairly and independently of the Principal the Courts may determine that the Superintendent is not acting fairly.  [View Casewatch PDF]

Overlook v Foxtel
This case stands for the proposition that the duty of good faith is best regarded as an obligation not to act in bad faith.  [View Casewatch PDF]

State of NSW v Coya
This case stands for the proposition that a Principal may be liable for the Superintendent’s failure to properly consider and properly value variation claims but not to ensure he/she is always correct.  [View Casewatch PDF]

Renard v Minister for Public Works
This case stands for the proposition that reasonableness may overlap and be indistinguishable from good faith. Accordingly, in the event of a Contractor’s challenge to the reasonableness of a direction by a Principal, it is important to consider both the reasonableness of the Principal’s actions and whether the Principal was acting in good faith.  [View Casewatch PDF]

Perini v Commonwealth
This case stands for the proposition that the Courts usually imply a term into the contract that the Superintendent will act, and the Principal shall ensure that the Superintendent will act, in a fair, unbiased and competent manner.  [View Casewatch PDF]

Esso v Southern (Appeal)
This case confirms the proposition that a party may breach its duty of good faith if it acts unreasonably, capriciously, or in the pursuit of an ulterior purpose. Further, a duty of good faith is a duty of good faith is likely only to arise where a party is vulnerable or at a disadvantage.  [View Casewatch PDF]

Esso v Southern
This case stands for the proposition that the content of the duty of good faith encompasses two concepts; the prohibition of a party from exercising a contractual power capriciously or for an extraneous purpose, and the obligation to refrain from acting in 'bad faith'. [View Casewatch PDF]

ABB Power v Chapple
This case confirms the proposition that for 'the appropriate enquiry' for the purposes of determining an entitlement to quantum meruit is whether the recipient of the relevant services should have objectively realised he would be expected to pay for them. [View Casewatch PDF]

Turner v Co-ordinated
This case confirms that for a building contract which contains a clause in the terms of clause 35.4, there is no room for the prevention principle to operate because it is, in effect, excluded by the express contractual provision. [View Casewatch PDF]

Pavey & Matthews v Paul
This case stands for the proposition that quantum meruit is based not on an implied contract, but on a claim to restitution or unjust enrichment and arises from the acceptance of benefits accruing to one party as a result of the work done by the other.  Further, the obligation to pay fair and just compensation for a benefit which has been accepted will only arise where such an agreement is frustrated, avoided or unenforceable. [View Casewatch PDF]

Liebe v Molloy
This case stands for the proposition that if the work claimed for had been work required by the contract to be done, then the builder could not recover for it, because he had not complied with the contractual requirements. However, if the work was work which the builder was not required to do by the contract (i.e. outside the contract) then a builder may recover on the basis of quantum meruit if the employer: (i) had actual knowledge of the extra works as they were being done, (ii) knew that they were outside the contract, and (iii) knew that the builder expected to be paid for them as extras. [View Casewatch PDF]

Electronic v David Jones
This case stands for the proposition that if action is required to bring about the intended result, each party has the duty of complying with the reasonable requests made by the other to ensure the intended result is achieved. [View Casewatch PDF]

Dunlop v New Garage
The use of the words ‘penalty’ or ‘liquidated damages’ does necessary mean that a clause is either a ‘penalty’ or a ‘liquidated damages’ clause. The Court will review the clause in light of the circumstances at the time of entering into the Contract. [View Casewatch PDF]

Beckhaus v Brewarrina (Appeal)
Where the Contract works are defective, a Principal is only entitled to the difference between the costs incurred in rectifying the defects and the amount it would have taken to complete the works under the Contract. [View Casewatch PDF]

Wells v Army and Navy
If the Contract does not clearly provide for an extension of time as a result of the defaulting act of the Principal, the prevention principle may be enlivened. [View Casewatch PDF]

Turner v Austotel
The prevention principle has no application to the JCCA form of contract due to the existence of an extension of time clause entitling the Builder to an extension of time in respect of the preventative acts by the Proprietor. Further, Builders who fail to comply with the notice requirements for extensions of time may remain liable for liquidated damages while losing their right to extension of time for the acts in question. [View Casewatch PDF]

Trimis v Mina
This case confirms the proposition that where a principal has actual knowledge of the additional or extra works, knows that they are outside the contract and knows that the builder is expecting to be paid for the works as extras to the contract, then a builder may be entitled to claim on a quantum meruit or restitutionary basis. [View Casewatch PDF]

Peak v McKinney
This case stands for the proposition that a principal may lose the right to claim liquidated damages if some delay is due to the principal’s defaults or the defaults of its employees or agents and the contract does not provide for an extension of time in that event. [View Casewatch PDF]

Walter v FTAC

The Trades Practices Act applies to everyone! [View Casewtch PDF]

Stockland v Coombs
When a professional is required to undertake additional work, a percentage based remuneration may significantly under-recover the time and costs incurred [View Casewtch PDF]

Roche v Metro
A party may affirm a contract by continuing to exercise its rights (work) under the contract after it is aware of a breach entitling it to terminate the contract [View Casewatch PDF]

Murphy v Acumen
Practical Completion means completion for practical purposes! [View Casewatch PDF]

Jennings Constructions v Q H & M Birt
'Time bar' clauses create a condition precedent that must be met before an entitlement to a claim can be made [View Casewatch PDF]

Rickard Constructions & Anor v Rickard Hails & Moretti & Ors
The cause of action in tort or contract can be assigned where there is genuine commercial interest in the enforcement of the cause of action [View Casewatch PDF]

Tan v Luxury
A construction contract will only constitute an 'entire contract' if payment is conditional on the complete performance of the contract [View Casewatch PDF]

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