11 Mar 2009
The Society of Construction Law in the UK has long enjoyed considerable success; an Australian society is now being launched. See note
23 Dec 2008
The Full Supreme Court of South Australia today handed down its decision in the Abigroup Port River Expressway litigation. Engineers Hardesty & Hanover have obtained two expert determinations requiring Abigroup to pay its fees but Abigroup refused to pay. In response to the first summary judgment application, Abigroup has paid the whole amount on a secured basis, but opposed a separate and early trial of the enforceability issue, and argued that enforcement should be postponed until a retrial by the court of all the disputes determined by the expert, and others. At first instance, Gray J refused to order separate trial, and refused leave to appeal. The Full Court has now overturned both those refusals. The case is important as signalling recognition by the Supreme Court that expert determinations should be given effect to if the parties have agreed be bound by such determinations. The court accepted the approach of Robert Fenwick Elliott, as counsel for Hardesty & Hanover, that unless the court promptly enforces expert determinations by separating them from complex underlying issues, the policy lying behind them would be negated.
1 Dec 2008
We have introduced some new adjudication pages to this website.
11 Nov 2008
The MBA has backed the proposed Security of Payment legislation for South Australia, provided it follows the Western Australian model rather than the East Coast Model. See our news item and the
24 Aug 2008
The Building and Construction Industry Security of Payment Bill has been before the South Australian Legislative Council for its second reading The Hon. J.A. DARLEY moved the reading. He said:
"I have met with the relevant stakeholders in the building and construction industry: representatives from the National Electrical and Communications Association; Air Conditioning and Mechanical Contractors Association; the Association of Wall and Ceiling Industries of South Australia; and the Plumbing Industry Association of South Australia, representing some 12,200 people working in the South Australian construction industry. They have outlined the ongoing hardship and disadvantage experienced by subcontractors... I am aware that, to date, South Australia and Tasmania remain the only Australian jurisdictions without legislation of this type. I would like to ensure that South Australia will not be the winner in the race to be last in implementing security of payment legislation. I urge honourable members to support this bill."
Rumour has it that the governement may be of a similar mind, so thatat long last, some legislation will find its way into SA state law. Robert Fenwick Elliott was consulted by the stakeholders mentioned for input into the Bill.
01 Aug 2008
Both Lumbers v Cook and Cubelic have been applied by the Magistrates Court in Clark Timber v Interbuild. Where the insolvent head contractor was insufficiently licensed, an unpaid supplier was entitled neither to a worker's lien nor a quantum meruit as against the owner. Robert Fenwick Elliott, instructed by Tom Grace, represented the successful defendant.
24 Jun 2008
The High Court has delivered judgment in Lumbers v Cook, reversing the SA Supreme Court decision. The decision reflects the criticisms we had made of the Supreme Court decision, and puts the law back where it had previously been: claims in quantum meruit by subcontractors against owners are essentially a "no-go" area. This is the second decision limiting quantum meruit claims in 3 months; in Cubelic, the SA District Court found that a quantum meruit claim could not used used to found a Workers' Lien.
13 Feb 2008
See note.
08 Feb 2008
To restrain the expert determination proceedings brought by Hardesty & Hanover International LLP in relation to the Port River Expressway at Port Adelaide; see note.
29 Jan 2008
Date set for hearing enforcement proceedings of expert determination
15 Jan 2008
We note the main features.
10 Dec 2007
We have been asked to suggest some wording suitable to incorporate the terms of the Contractual Adjudication Group Scheme (also known as the CAG Scheme) into a standard form of contract. See the CAG site, or our own note, for this.
06 Nov 2007
The decision of an adjudicator appointed under the Western Australian Construction Contracts Act made without considering an allegedly late adjudication response was found to be in breach of natural justice, and thus void. See Legal Note and Cases Fenwick Elliott Grace acted for the successful party.
28 Sep 2007
Section 91 amends the Judicial Review Act 1991 to exclude adjudication under the Building and Construction Industry Payments Act 2004 from review. It seems it was just a drafting omision that adjudications were ever reviewable. Queensland is now back in line with other states in precluding judicial review of adjudication decisions.
19 Sep 2007
The Court of First Instance of the European Communities has found that communications with in-house counsel were not entitled to legal professional privilege, because such lawyers are not sufficiently independent. See Legal Note.
12 Sep 2007
See extract from Hansard.
10 Aug 2007
It seems that the High Court agrees: it has granted special leave to appeal.
26 Jul 2007
Often, in large disputes involving numerous parties, it can be difficult to get all parties to simultaneously agree to negotiate with a view to resolution of the dispute. Where one party is reluctant to negotiate and appears to carry the majority of the liability, this situation results in unnecessary legal costs and frustration for the other parties. Often in such matters, the potential legal costs of all of the parties combined can amount to millions of dollars and can exceed the quantum of the sum in dispute. Faced with this scenario, Fenwick Elliott Grace approached the Supreme Court of South Australia for orders that: - all of the parties other than the reluctant party could make a filed offer, putting the reluctant party at risk of the legal costs, on an indemnity basis, of the other parties; - the court order that the parties mediate the dispute. The application required that the Court modify the Rules of Court as the Rules do not make provision for filed offers in multi party litigation. The Court granted the application and the matter settled at the mediation. The full decision Tom Grace was counsel for G&WA, the party that made the successful application.
4 Jul 2007
See Cases Fenwick Elliott LLP acted for the successful party.
26 Jun 2007
We did not know, when commenting on the 1st instance Supreme Court decision in Skinner v Harnas for the Law Society Construction Law Update on 20th June, that the full bench was busy delivering its reasons on the appeal. Happily, our views and those of the full bench are in unison.
1 Jun 2007
IAMA has adopted a new set of the Arbitration Rules (Incorporating the Fast Track Arbitration Rules) on 1 June 2007.
30 Mar 2007
The new Building and Construction Industry Security of Payment Act 2002 (incorporating the 2006 amendments) comes into effect in Victoria for contracts entered from today.
29 Mar 2007
The South Australian Supreme Court majority decision on W Cook v Lumbers is causing some ripples; it certainly looks like an unusual case of quantum meruit elbowing its way past the contractual structure. We understand that special leave is being sought for an appeal.
6 Mar 2007
The High Court in London has handed down a significant decision in Multiplex Constructions v Honeywell Control Systems, a case arising out of the Wembley Stadium project. Multiplex, represented by Fenwick Elliott LLP successfully resisted claims that time was at large and that the contractual mechanism had broken down. See news item and cases page.
29 Aug 2006
Federal law challenge to Security of Payment legislation; NSW CofA gives judgment in Bitannia v Parkline.
16 Aug 2006
The Act received assent on 25th July; most of it will not come into effect until the Act is proclaimed.
5 May 2006
The Victorian Building and Construction Industry Security of Payment (Amendment) Bill 2006 has been published, proposing changes to the adjudication regime in that state.
1 Mar 2006
Brereton J has handed down judgment in Pacific v Soliman [2006] NSWSC 13. In this case, the adjudicator had disregarded respondent's submissions that had not been raised in the payment schedule, and thus accepted the claimant's claim at face value. The court held the adjudicator's purported determination was void, because there had been no determination that the work had been done, or of its value, as required by the Act. The decision underscores the view we have been expressing for some time, namely that the adjudicator's role is not merely a clerical one of ticking off procedural boxes, rather he is faced with the truly evaluative task of determining what, if anything, is due to the claimant as a matter of fact and law.
15 Jan 2006