BuildLaw, Issue 13: March 2012

Welcome to the March Issue of BuildLaw in which we bring you articles from New Zealand, Canada, Australia and the United Kingdom on building and construction law matters.

You can either download and print the complete newsletter or read those articles of interest.

Articles in Issue 13 are as follows
 
Welcome Construction Contracts:
No implied obligation to “get on with it”
John Green's comments on articles in this issue and developments in the industry since our last issue...

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Our first article is by Julian Bayley and involves an issue that regularly crops up in practice, but seldom before the courts, viz whether or not a contractor is subject to an implied obligation to progress the contract works “regularly and diligently”. Just what that means is somewhat unclear...

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What amounts to good faith conduct or repudiation on construction projects? Queensland Supreme Court clarifies the application of BCIPA to mining projects
Thomas G Heintzman O.C, Q.C discusses the recent decision of the Prince Edward Island Court of Appeal in WCI Waste Conversion Inc. v. ADI International In. The case involved a joint venture project which raised a number of important issues including when is a building contract a joint venture? and what amounts to good faith conduct or repudiation on construction projects?...

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In the recent decision of Thiess Pty Ltd v Warren Brothers Earthmoving Pty Ltd [2011] QSC 345, Justice Fryberg provided important clarification with respect to the application of the Building and Construction Industry Payments Act 2004 (Qld) (BCIPA) to mining projects. McCullough Robertson Construction Group Partners, Bill Morrissey and Matt Bradbury outline why the decision is likely to be welcomed by contractors and subcontractors who carry out construction work and supply related goods and services in respect of mining projects throughout Queensland...

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Disclaimer in Expert Report Does Not Void Adjudication Determination Expert Evidence In Professional Negligence Claims
Charles Brannen of CBP Lawyers discusses the decision of the NSW Supreme Court in Hanave Pty Ltd v Nahas Construction (NSW) Pty Ltd [2011] NSWSC 1476 in which the court held that an adjudication determination was not subject to challenge by reason of the adjudicator's consideration of an expert report containing a disclaimer regarding the use of, and reliance on the report, by third parties: in this case the adjudicator!..

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Two recent UK High Court decisions in relation to the same case, ACD (Landscape Architects) Ltd v Overall & Anor, provide practical guidance on whether privilege is waived in an expert’s report when significant parts of the report are deployed in a witness statement prepared for a strike out application and the use of expert evidence in professional negligence claims...

 
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Natural Justice Again! Noel’s House Party Poopers
One might have thought that the principles relating to the application of natural justice in an adjudication setting were reasonably well settled and that adjudicators would apply them. However two further recent cases, one a decision of the Scottish Outer House of the Court of Session in Highlands and Islands Airports Ltd v Shetlands Islands Council [2012] CSOH 12, and one a decision of the TCC in Herbosch-Kiere Marine Contractors Limited v Dover Harbour Board [2012] found that adjudicators had engaged in conduct amounting to a breach of natural justice rendering their determinations unenforceable.

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Tony Bingham provides some interesting commentary on a recent UK case, “Noel Edmonds v Lawson Developments” -
Those readers who consider themselves as being ‘in their prime’ will recall that Noel Edmonds starred in a TV series “Noel’s House Party”. It ran for 169 shows until pulled in 1998. Features included “The Gunge Tank”. There were “Gotcha Oscars” via practical jokes until the threat of legal action. And talking of legal action, Noel Edmonds has just had a ‘humdinger of a construction dispute’ in the Technology and Construction Court. Noel and his close pal, builder and developer Ulrik Lawson, fell into the trap of close friends not setting up their contract together in a “pukka formal way”. It’s what friends don’t do…

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The Long and Short of it Judicial review of Construction Contracts Act determinations only rarely available
If there was one compelling reason why we got adjudication in construction contracts 13 years ago, it’s that litigation was hopeless. Has anything changed? Tony Bingham provides some insightful commentary on the recent case of ‘NAP Anglia Ltd v Sun-Land Development’...

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Darise Bennington, Managing Editor at NZLawyer, discusses Rees v Firth & Anor [2011] NZCA 668 (20 December 2011) and the reasons for the Court’s findings.


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Book Reviews:
The Leaky Building Crisis - Understanding the Issues
&
Williams and Kawharu on Arbitration
&
Kennedy-Grant on Construction Law, 2nd Edition
Fourth International Construction Law Conference

"Global challenges, shared solutions"


Information and Event Program
Three new and significant texts that are now available which make for essential reading for building practitioners and students of construction law alike...

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Information on the FOURTH INTERNATIONAL CONSTRUCTION LAW CONFERENCE to be held in Melbourne Australia from the 6th to the 8th of May this year...

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An Authorised Nominating Authority
under section 65 of the Construction Contracts Act 2002