Entries by bradburylegal

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 […]

The importance of unequivocal termination of construction contracts in the eyes of Security of Payment legislation

A series of recent NSW Supreme Court decisions have highlighted just how important timing can be when it comes to constructions contracts and their termination.  The court has confirmed that where the relevant construction contract includes a reference date (as contemplated by section 8(2) of the Building and Construction Industry Security of Payment Act 1999 (NSW) (Act), […]

Time is money – the importance of drafting and contract administration

The recent Supreme Court decision in Champion Homes Sales Pty Limited v DCT Projects Pty Limited [2015] NSWSC 616 provides a timely reminder of the importance of contract drafting and administration, particularly in respect of extension of time claims and liquidated damages. Extensions of time Ordinarily, a construction contract will set out a clear regime for a builder […]

The end of the road for retention moneys on large projects?

Head contractors who enter into construction contracts with subcontractors after 1 May 2015 on projects with a value of more than $20 million must hold retention money retained as security in a retention money trust account. The introduction of retention money trust accounts arises out of the Building and Construction Industry Security of Payment Amendment (Retention Money Trust […]