Entries by bradburylegal

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 […]

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 […]