Security of Payment
What is the reference date?
A payment claim can include work performed before this date.
Under joint and several liability, how much of a judgment may a plaintiff recover from any one liable defendant?
100%
Which section of the Australian Consumer Law prohibits misleading or deceptive conduct?
Section 18
What is the difference between "WUC" and "Works"
WUC
The broad obligation representing everything the contractor is required to do to fulfill the contract (design, construction works etc)
Works
The actual works / construction of the asset.
What is the difference between a brownfield and greenfield project?
A brownfield project involves construction within or adjacent to existing operational infrastructure, whereas a greenfield project is undertaken on undeveloped land.
What year was the Building and Construction Industry Security of Payment Act (NSW) enacted?
1999
What High Court case involved a lender's loss being caused by both fraudsters and solicitors who negligently drafted the loan documents?
Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10.
What is the purpose of a provisional sum?
To act as a financial placeholder in a construction contract for work, materials, or services that cannot be accurately defined, quantified, or priced at the time of signing
What is the Prevention Principle?
A party cannot enforce a contractual obligation or claim a penalty if their own act or omission prevented the other party from performing that obligation.
Can tunnel boring machines reverse?
No.
Historically, which state was known for concepts such as "excluded amounts" and "claimable variations"?
Victoria.
Can parties to a construction contract contract out of the proportionate liability regime in Part 4 of the Civil Liability Act 2002 (NSW)?
Yes. NSW permits parties to contract out of the proportionate liability regime.
Parties agree on all terms but say "subject to contract" Work starts. No Formal contract was signed. What is contractor's likely remedy?
Quantum meruit
You act for the Principal. Where should the Contractor's technical clarifications go within the order of precedence?
Below the T&CS and legal requirements (permits) above the technical documents.
Who was the sole tenderer for the construction of the Olympic Stadium?
The joint venture of BESIX Watpac and John Holland
Why do adjudicators frequently describe their decisions as determining an "interim" entitlement?
Because the determination is temporarily binding and may subsequently be challenged or re-determined in litigation, arbitration or final dispute resolution proceedings.
Under which Part of the Wrongs Act 1958 is Victoria’s proportionate liability regime principally found?
Part IVAA
A Contractor provides a $500 million parent company guarantee. The parent company is Canadian.
Why might the Principal require a legal opinion?
To confirm that the guarantee has been validly executed and is legally enforceable against the parent company.
A D&C contract requires the Works to be “fit for their intended purpose”, but the intended purpose is not expressly defined. If you act for the Contractor, what amendment would you suggest?
What is the difference between mechanical completion and practical completion?
Mechanical completion generally means the physical installation of systems is complete and ready for testing, whereas practical completion is the contractual milestone where the works can be used for their intended purpose despite minor defects or omissions.
Section 13(4) of the SOP Act a payment claim must be served within the later of the contractually defined period or 12 months after the last work was carried out or goods/services were supplied.
A Contractor submits a payment claim for works that were performed two years ago and last month. Is the payment claim valid?
Entire payment claim is valid.
In Perpetual Trustee v CTC Group [No 2], what two matters did Barrett JA say should be assessed when determining the nature of an apportionable claim?
The terms in which the claim is framed and the relevant findings made by the court.
A Principal has designs approved by Council for a project. However, the Principal did not a grant and is now $50m over budget. The Principal wants to reduce the cost and test the market before going to tender.
What can the Principal do to bring the budget down?
The Principal can engage a contractor (or multiple contractors) under an ECI arrangement.
BONUS: what contract model could the Principal consider after an ECI arrangement?
The Site is known between the parties to contain asbestos. How would you address the Latent Condition clause if you act for a Principal and a Contractor?
Principal: nothing it is a latent condition.
Contractor: a schedule of rates for removal of asbestos
Emanuel always describes "Ash Irvin" (AI) as what?
A sycophant