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Reviewing security of payment adjudications and jurisdictional error in Queensland

30Nov
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One of the features of construction projects are the different layers of contracts within the network, and of the levels, subcontractors usually find themselves at the bottom of the food chain. Therefore, security of payment (SOP) legislation plays a significant role in ensuring that all parties receive prompt payments throughout the project, especially those on the lower rungs such as subcontractors. However with that being said, there are a number of significant issues related to SOP regimes which those within the construction industry can attest to. It is hoped that with the commencement of the Building and Construction Industry Payments Amendment Act 2014 (BCIPA), and in particular, the introduction of a new adjudication process that some of the issues relating to SOP may be alleviated – especially in the area relating to adjudication decisions that are a result of jurisdictional error. Although a decision resulting from jurisdictional error is an area that is addressed within the amendment Act, the question of jurisdictional error is still worth exploring especially when considering the lack of clarity in the area traditionally.

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Directors’ Duties: Traversing the corporate landscape of the bona fide and proper purposes rules in Bell

02May
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The Western Australian Supreme Court of Appeal decision in Westpac Banking Corporation v Bell Group Ltd (in liq) [No 3] [2012] WASCA 157 shone a spotlight on the issue of the fiduciary duties owed by directors to act in the bona fide interests of the company, and for proper purposes. Although Bell was settled before the High Court was able to determine whether the bona fide and proper purposes rules formed part of the fiduciary duties for directors, a closer look at how the rules fits within corporate law is worth further exploration.

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Residential property acquired for commercial purposes: How influential is the Australian Consumer Law?

02May
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In Carter v Delgrove Holdings Pty Ltd [2013] FCCA 783, the Federal Circuit Court had to determine whether the respondent engaged in misleading or deceptive conduct under s 18 of the Australian Consumer Law (the ACL) by first submitting the successful bid for a residential property in auction, then refusing to proceed to settlement.

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Builders Beware: Ineffective Drafting Of Charging Clauses In Building Contracts May Cost You

01Jan
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Clauses permitting a builder to a charge over the property for unpaid fees, and to lodge a caveat to protect the charge has become commonplace in relation to building contracts. However, it is important to bear in mind that the wording of charging clauses needs to be clearly drafted as the case of Adrija Pty Ltd v Mohamed, Ahmed and Registrar General ACT Land Titles Office [2013] ACTSC 120 illustrates what could happen when charging clauses are not properly drafted.

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Termination for convenience clauses in construction contracts: Some inconvenient truths?

12Aug
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Express clauses terminating a contract without cause – also referred to as ‘termination for convenience’ or ‘termination at will’ clauses – have increasingly become a feature within construction contracts. Although gaining in popularity, the validity and operation of such clauses has largely remained unexplored, with the small number of cases suggesting that although such clauses has been generally recognised by the courts, the question of the legitimacy of terminating a contract at will, still largely remains unanswered. So what should parties be mindful of if they wish to include termination for convenience clauses in construction contracts? For contracting parties wanting to rely on termination for convenience clauses, the need to demonstrate that the contract was terminated in good faith is essential.

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What effects does the New Commercial Arbitration Act have in relation to construction disputes?

05Aug
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Arbitration is one of the most commonly used forms of alternative dispute resolution (ADR) within the construction industry, and trying to strike a balance between procedural fairness and finality can impose a number of challenges when relying on a third party to make a determination. Prior to the Commercial Arbitration Bill 2013 (Qld) coming into force, arbitration via the Commercial Arbitration Act 1990 (Qld) was a drawn out and costly process, with the undesirable outcome of having some awards set aside due to insignificant procedural breaches of natural justice. The Hon Chief Justice Spigelman AC remarked in 2009, that the previous legislation was out of date, and that the process had become unwieldy. The introduction of the new regime now brings Queensland’s arbitration laws in line with the world’s best practices by facilitating fair and final resolution of construction disputes, allowing for natural justice to hopefully come to the fore.

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Building Covenants and How These May Affect You

03Jul
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A building covenant is restrictive covenant and strictly defined a restrictive covenant is a provision in a deed limiting the use of the property and prohibiting certain uses. 1The term is also used to describe a promise contained in any contract or agreement relating to land. 2Please keep in mind that each case relating to a building covenant will need to be taken on a case by case basis and the analysis of the facts and circumstances will play an important part for you obtaining the correct advice and guidance from the appropriate law firm with a lawyer who specialises in real estate and development, and more particularly one who specialises in building covenants.

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