Entries by bradburylegal

No Builder’s Licence was no barrier to Work Order! What?

An appeal in the New South Wales Civil and Administrative Tribunal has confirmed the limited circumstances in which the Tribunal will make a money order rather than a work order for rectification of defective building works. In Precise Builders (NSW) Pty Ltd v Jones & Krel [2018] NSWCATAP 112 the Tribunal Appeal Panel, having regard to s […]

National review of security of payment legislation by John Murray AM

The long-awaited national review of security of payment legislation by John Murray AM has been released. The ‘Murray Report’ recommends harmonised security of payment laws across Australia by selecting various provisions of each state’s and territory’s model and emphasises the importance of the Commonwealth, states and territories working together to implement those recommendations. Some of […]

What are Latent Conditions and how do you manage the risk?

The term ‘latent condition’ can strike trepidation in the heart of the most hardened builder or sub-contractor, especially when the term is preceded by the words ‘unexpected’ or ‘unforeseen’. Depending on what the latent condition is and the expense involved in rectifying any problems that arise as a result of the latent condition, the existence and […]

Construction contracts and unfair contract terms

As reported by us at the time, in November 2016, the Australian Consumer Law (ACL) extended its unfair contract term provisions to certain small businesses. These provisions, which previously only applied to consumers, were introduced in an effort to level the playing field between small and large enterprises. This article is intended to remind industry participants about […]

Construction contracts and changes to insolvency laws

Reforms to insolvency laws will prevent contracting parties relying on certain clauses in construction contracts effective from 1 July 2018. The reforms introduce changes to the Corporations Act 2001 (Cth) and are likely to impact significantly on construction contracts. The laws aim to assist contractors who are facing financial difficulties by allowing them to trade their way […]

Quantum Meruit Building Work Claims

When a contractor makes a claim for ‘quantum meruit’ they are seeking payment of a fair and reasonable amount for the work they have carried out and any materials they have supplied as part of that work. A claim for quantum meruit does not necessarily rely on any amount specified in the construction contract but […]

No notice needed: NSW Court of Appeal rules on enforcement of Security of Payment Act determination

In the recent unanimous decision of Fitz Jersey Pty Ltd v Atlas Construction Group Pty Ltd [2017] NSWCA 53, the Court of Appeal considered the enforcement of a judgment (pursuant to an adjudication determination under the Building and Construction Industry Security of Payment Act 1999 (NSW) (Act)) by garnishee order and without notice of the judgment being given to […]

Taking the Universal Serial Bus (USB) may result in a delayed service under the Security of Payment Act

In 1999, the New South Wales parliament legislated to create the Building and Construction Industry Security of Payment Act 1999 (NSW) (Act). In 2000, IBM began selling the first USB flash drives commercially.  Other methods and mediums to quickly and conveniently communicate significant amounts of information have come and gone since 1999. It is therefore unsurprising that […]

‘The suspense is killing me’ – when do reference dates continue to accrue under the Security of Payment Act?

The High Court has determined that a reference date is a precondition to a valid payment claim under the Building and Construction Industry Security of Payment Act 1999 (NSW) (Act) with its landmark judgment in Southern Han Breakfast Point Pty Ltd (in Liquidation) v Lewence Construction Pty Ltd [2016] HCA 52.  Whether or not a reference date exists will […]