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Before proceeding, the parties will need to agree to mediate using the BDT Mediation Rules. This can be done in one of two ways:

  • there may be a clause in the contract under which the parties’ dispute has arisen which states that the parties have agreed to mediate under the BDT Mediation Rules, for example:

Any dispute or difference arising out of or in connection with this contract, or the subject matter of this contract, including any question about its existence, validity or termination, shall be referred to mediation in accordance with the Mediation Rules of the Building Disputes Tribunal.

or

  • parties to an existing dispute, whether or not there is a mediation clause in any underlying contract, may agree to refer that dispute to Mediation under the Mediation Rules of the Building Disputes Tribunal by signing the Mediation Agreement at Appendix 2 to the BDT Mediation Rules.

NOTE: if a party is relying on the Mediation Agreement found in a clause in the underlying contract, they will need to serve a Notice of Mediation on the other party or parties to the dispute prior to applying for Mediation. This is not required where the parties have signed the BDT Mediation Agreement.

Contractual appendices: ignore at your peril

Contractual appendices: ignore at your peril

Recently, a subcontractor in the UK was relieved of adverse ground conditions risk, despite contract amendments that sought to allocate that risk to the subcontractor- and it all hinged on an analysis of appendices to the contract. Appending documents to a contract...

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New Government Procurement Rules Announced (4th Edition)

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The 4th edition of the Government Procurement Rules (Rules) were published this month. They are the good practice standards for government procurement, and were last substantially revised in March 2015. The Rules apply to all public service departments, police,...

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Building Law reforms: Raising the bar across the sector

Building Law reforms: Raising the bar across the sector

By the Minister for Building and Construction, Jenny Salesa I’m proud of our building and construction industry, and the hard-working individuals that fill the wide and varied roles that make up the sector. It’s our fifth-largest industry by GDP and fourth-largest...

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Retentions – maxed out

Retentions – maxed out

Common retentions provisions in subcontracts may be unenforceable. In Maxcon Constructions Pty Ltd v Vadasz [2018] HCA 5, the High Court of Australia recently held that on its proper construction, the retention provisions in a subcontract that made...

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