BuildLaw, Issue 15: September 2012

Welcome to the September 2012 Issue of BuildLaw in which we bring you articles from New Zealand, 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 15 are as follows:
Editorial Dispute Boards in Australia – The Story So Far
John Green's comments on articles in this issue and developments in the industry since our last issue...

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Dispute Boards are recognised worldwide for their effectiveness as a mechanism for the real time management of issues and avoidance and resolution of disputes on major construction and infrastructure projects. The first article in this issue of BuildLaw®, Dispute Boards in Australia – The Story So Far by Dr Donald Charrett, traces the growth and development of Dispute Boards in Australia since the concept was introduced on the Sydney outfall tunnels project in 1987. Dr Charrett is a Building Disputes Tribunal Arbitrator and a Dispute Board Member. He will be well known to many readers as the driving force behind the highly successful Fourth International Construction Law Conference, held in Melbourne, Australia, in May of this year...

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Reasonable Endeavours and Financial Expense Implied Terms Don’t Go Without Saying
In Reasonable Endeavours and Financial Expense, Aiden Steensma from CMS Cameron McKenna discusses the recent decision of Roth J in Ampurius Nu Homes Holding Ltd v Telford Homes (Creekside) Ltd [2012] EWHC 1820 (Ch).  In a judgment that touched on several areas of construction law relating to termination (repudiation, renunciation, affirmation, resumption of work), Roth J held that an obligation to use “reasonable endeavours” (usually considered to be the weakest of endeavours clauses) to procure completion of the works by set dates was designed to cover matters that directly relate to the physical conduct of the works and did not extend to procuring finance, such that suspension of the project by Telford as a result of lack of finance due to the ‘Credit Crunch’ amounted to a repudiatory breach...

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In Implied Terms Don’t Go Without Saying Kevin Badcock discusses the recent decision of Andrews J in Concrete Structures (NZ) Ltd v Waiotahi Contractors Ltd HC ROT CIV 2011-463-000501. This case was an appeal from the judgment of Judge Wolff in the District Court in which the Judge held that a term was to be implied into a subcontract between Waiotahi and CSL that CSL would be liable for liquidated damages payable by Waiotahi under its head contract with the Whakatane District Council for the construction of a pumping station in circumstances where CSL had made it clear that it had no intention of being bound by the head contract...

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What Contractors Need to Know The Perils of Conditions in Sale and Purchase Agreements
In What Contractors Need to Know Gurbinder Grewal of SNR Denton discusses the recent judgment of Mr Justice Akenhead in Walter Lilly & Company Ltd v MacKay and DMW Developments Ltd [2012] EWHC 1773 (TCC) which has been hailed as one of the most significant decisions to have come out of the TCC in recent years. The judgment gives guidance on a number of important issues in construction law including design liability, causation, head office overhead calculations, third party settlements and the duty to warn. However the most significant findings concern the proper treatment of concurrent delay events, global claims and the extent to which contractors need to provide supporting information when making claims...

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Just how easy is it to get out of an agreement to sell or purchase a property when circumstances or interests change? In an article titled The Perils of Conditions in Sale and Purchase Agreements Victoria Whitfield, of Whitfield & Co explores the legal position regarding commonplace special conditions that are often drafted at the end of the standard form REINZ/ADLS Sale and Purchase Agreement...

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Equitable Set-Off and Adjudication Enforcement Power Contract Failure
Two recent decisions in the TCC have considered enforcement of adjudicator’s determinations where the losing party has claimed set-off against the amount it has been found liable to pay. In Equitable Set-Off and Adjudication Enforcement, Lucy Goldsmith of Fenwick Elliot discusses the decision of Mr Justice Coulson in Beck Interiors Ltd v Classic Decorative Finishing Ltd [2012] EWHC 156 (TCC) in which the Judge refused to allow set-off of sums allegedly arising under an unrelated project in a different jurisdiction. His decision largely followed his findings and reasoning in Squibb Group Limited v Vertase FLT Ltd [2012] EWHC 1958 handed down a few days earlier...

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The article Power Contract Failure by Tom Grace, a partner in Fenwick Elliot Grace, Construction and Engineering Lawyers, examines getting the risk allocation right between contracts and subcontracts and provides a salutary lesson in how not to draft a ‘back to back’ subcontract agreement where the intention is to pass on to the subcontractor the contractual risk faced by the head contractor...

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They Protesteth Too Much: Construction Sites and Protestors What is a Related Service Under the NSW Security of Payment Act (BCISPA)?
They Protesteth Too Much: Construction Sites and Protestors is an article by CMS Cameron McKenna in relation to recent UK High Court litigation involving the Olympic Delivery Authority and protestors at the Leyton Marsh basketball facility for the Olympic and Paralympic Games. Deliveries to the construction site had been obstructed by protestors lying in front of vehicles, playing boules on the access route and gluing gates shut, and contractors had been subjected to abuse resulting in several arrests. The works were disrupted at an estimated cost of £8,000 per day and there were concerns about meeting the handover deadlines...

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What is a Related Service Under the NSW BCISPA and why should it matter? Andrew Kelly of Thomsons Lawyers discusses the recent decision of the NSW Court of Appeal in Edelbrand Pty Ltd v HM Australia Holdings Pty Ltd [2012] NZWCA 31 in which the court considered whether a construction management contract agreement with risk/reward payment terms was subject to the Building and Construction Industry Security of Payment Act 1999 (NSW). The case is particularly relevant because under the present review of the Construction Contracts Act 2002, it is most likely that the provision of related professional services will be caught in any amending legislation – as indeed they should be...

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Must a Payment Claim be made in Good faith? BINGHAMS CORNER
In an article titled: Must a payment claim be made in good faith?  Darren Cain, Head of the Building and Construction Department at Kliger Partners, discusses the recent decision of the Supreme Court of Victoria in 470 St Kilda Road Pty Ltd v Reed Constructions Australia Pty Ltd & Anor [2012] VSC 235 in which Justice Vickery was persuaded, with the benefit of full argument, that he was wrong to have found in a previous case (Metacorp Australia Pty Ltd v Andeco Construction Group Pty Ltd [2011] VSC 199 [at [101]) that a payment claim must be made bona fide in order to be valid...

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Are You Self Employed or Employee?
What has lap dancing got to do with construction law? Only Tony Bingham could answer that question which he does rather well in Are you self employed or employee?  the perennial issue that presents for many contractors in relation to their employment status for tax purposes.

Moving Jobs to a Competitor
In Moving Jobs to a Competitor: Thanks for the Memories Tony Bingham highlights the problems with a fluid and mobile workforce and to what extent commercially sensitive and useful information “between the ears” of any employee, or indeed in a handy contacts list easily downloaded onto a memory stick, remains the property of the former employer.

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