Entries by bradburylegal

Last chance to tell the NSW Government what you really think …

This weekend witnessed thousands of Sydneysiders hitting the streets to protest against lockout laws.  While the Security of Payment Act (SOP) is unlikely to generate mass protests, it can often be the cause of frustration and irritation for all construction industry participants (for different reasons).  In any event, NSW Fair Trading has circumvented the need […]

Broad Indemnities and Narrow Insurances – A Match Made in Hell

When drafting indemnities into contracts, it is important to consider the relevant insurances that sit behind the parties and the interplay between them. Too often, contracting parties insert indemnity clauses into contracts without giving adequate consideration to the effect and operation of those indemnities.  It is usually the contracting party with the most bargaining power […]

The Vienna Convention: all about opting out

According to the Australian Department of Foreign Affairs and Trade, in the 2014-2015 financial year Australia exported and imported approximately AU$256bn and AU$270bn worth of goods respectively. It is clear that trade on this scale requires some form of international regulation. The United Nations Convention on Contracts for the International Sale of Goods 1980 (Vienna Convention), to […]

Are you contracting out of more than just proportionate liability legislation?

Since the introduction of proportionate liability legislation, most design and construct contracts expressly provide that the contractor agrees to be responsible for the acts and omissions of its subcontractors.  The intent, of course, is to allow the principal to seek contractual recourse against the contractor, and not have to establish negligence claims against subcontractors (whom […]

The float. Own it.

While the vast majority of parties to construction projects understand the practical importance of a program float, the contract provisions that control this issue are increasingly being overlooked. Indeed, in today’s growing construction climate, some of its participants do not seem to understand the effect that contract drafting can have on program contingency and which […]

Respondents despondent as the Court of Appeal further narrows scope for judicial review

In an important decision for adjudications in New South Wales, the Court of Appeal has determined that the existence of a reference date is not a “jurisdictional fact” that warrants intervention by the Courts.  The decision of Lewence Constructions Pty Ltd v Southern Han Breakfast Point Pty Ltd [2015] NSWCA 288 marks an about turn from previous […]

Half-time, change sides! – invalid payment claims and the ‘net’ damage to respondents

The recent Supreme Court of New South Wales decision in The New South Wales Netball Association Ltd v Probuild Construction (Aust) Pty Ltd [2015] NSWSC 1339 highlights the often fickle strategies adopted by parties to jurisdictional disputes under the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOP Act). The dispute concerned the construction of the “Netball […]

Delay damages vs delay costs – same same but different

I’ve lost count of the meetings, teleconferences and email exchanges that I’ve had with contractors (and their solicitors) in which this topic has been debated healthily, albeit resulting in an agreement to disagree. Put simply, many contractors seek to amend standard contracts to provide broad circumstances in which they may claim delay damages or delay […]

Liquidated damages: not negotiable

Liquidated damages (“LDs”) clauses are par for the course in standard construction contracts. These clauses provide that a contractor is required to pay a pre-determined sum of money, as damages for breaching a particular term of a contract (eg failing to complete the works on time). LDs can benefit both parties to a contract by: […]

‘Accrual’ reminder for developers

The recent Supreme Court decision of Broadview Windows Pty Ltd v Architectural Project Specialists Pty Ltd [2015] NSWSC 955 again demonstrates the contrast between the security of payment statutory regime for the accrual of reference dates and the corresponding rights under a typical contract, and the consequences for builders and developers alike. Broadview Windows concerned whether the claimant had made more […]