Entries by bradburylegal

Summer of section 69: non-jurisdictional errors of law under the Security of Payment Act have had the best days of their lives

The New South Wales Court of Appeal has confirmed that an adjudication determination under the Building and Construction Industry Security of Payment Act 1999 (NSW) (Security of Payment Act) can only be quashed if there is a jurisdictional error of law. The decision of the unanimous five-judge bench in Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty […]

Time not a great healer of defects claims

A recent Supreme Court decision has provided a timely reminder to building and construction litigants of the importance of considering limitation periods when prosecuting claims.  In The Owners – Strata Plan 7684I v Ceerose Pty Ltd [2016] NSWSC 1545 (Ceerose), the owners corporation did not have regard to the effect of relevant limitation periods and paid a hefty price. […]

NSW Supreme Court confirms ability to quash adjudication determinations for non-jurisdictional errors of law

The NSW Supreme Court in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2016] NSWSC 770 considered whether an adjudication determination under the Building and Construction Industry Security of Payment Act 1999 (NSW) (SoPA) could be subject to judicial review, in circumstances where an adjudicator has made a non-jurisdictional error of law on the face of the […]

Performance Securities – You got to know why to hold ‘em

The ‘purpose’ of performance security In construction contracts, performance security is not only common, but it is a critical part of the commercial deal. This article looks at the relevance or importance of the link between the documented purpose of performance security and a beneficiary’s ability to have recourse to it. At a basic level, the purpose often […]

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 […]