I am very pleased to see that my lecture in London for the Society of Construction Law (well, half-lecture) is fully booked out for next week.
Questions will hopefully be easy. I should be able simply to tell them that it is all in my book Extra-Contractual Recoveries for Construction and Engineering Work, available from London Publishing Partnership.
In any event, it will be good to see Continue reading
For a long time, the Society of Construction Law has run lectures which have been delivered at the National Liberal Club in London. I have been to many of them, usually listening but sometimes speaking.
And so it will be a happy return to an old haunt when I will be on my hind legs again for the Society in a couple of weeks.
The topic is Claims Outside the Contract from a Common and a Civil Law Perspective; I will be doing the common law half and Chris Seppälä from White & Case in Paris will be doing the civil law half. It will be chaired by Mrs Justice Joanna Smith, who sometimes sits in the TCC.
I like this notion of Continue reading
The South Australian Magistrates Court has invited me to prepare a one-page flyer to be handed out to parties in cases which may be suitable for pendulum arbitration, and now approved that document. The Word version is thus: MC Flier
The text is as follows:
A Faster and Less Expensive Alternative to Litigation or Conventional Arbitration
Pendulum arbitration (also known as baseball arbitration) is a type of arbitration that has been extensively and successfully used in the United States to resolve disputes more quickly and with less cost than litigation or conventional arbitration. It is also now available in South Australia for appropriate cases.
What is pendulum arbitration?
In this form of pendulum arbitration, the parties attend a one-day hearing in which they each put their case. At the end of the day, each party hands the arbitrator a proposed draft award, and the arbitrator chooses one of these drafts as the final award, without modification.
How does it work in practice?
Prior to the hearing, each party puts in a written statement of its case, including any material on which it wishes to rely. There is no discovery of documents. Continue reading
I have put up a model pendulum arbitration agreement: see https://feconslaw.com/pendulum-arbitration-2/model-pendulum-arbitration-agreement/.
Clearly, this model is just a template, and will need finetuning for each case. So it is there on a “no responsibility” basis!
My breakfast briefing proceeded as planned yesterday, and went OK.
I understand that DRBF members will be able to get the Powerpoint. And it was recorded, so they can even watch it again, if really keen.
Or watch it for the first time, if still asleep yesterday morning.
Michael Christie is rightly regarded as the leading construction silk in Australia these days, and so I was especially gratified to see his kind review of my book in Building and Construction Law:
EXTRA-CONTRACTUAL RECOVERIES FOR CONSTRUCTION & ENGINEERING WORK
Extra-Contractual Recoveries for Construction & Engineering Work, by Robert Fenwick Elliott, London Publishing Partnership, 2022, xci + 1O77pp, 2 Volumes: ISBN: 978-1-913019-57-0. Hardcover.
Reviewed by Michael Christie SC
The learned author of this two volume book is an eminent construction lawyer. During his long and distinguished career in the United Kingdom and Australia, he has acquired a deep understanding of construction disputes. In this book, he shares his invaluable insights with readers.
The book is concerned with a topic of enormous practical importance: the recovery of money outside the strict limits of a construction contract.
Such recovery has long been recognised at common law and in equity. Indeed the first construction dispute determined by the High Court of Australia concerned a claim for extra-contractual recovery: Liebe v Molloy (1906) 4 CLR 347. Extra-Contractual Recoveries for Construction & Engineering Work is the first book to deal specifically with this important subject.
The theme of the book is encapsulated in Continue reading
On the topic of the DRBF, btw, they have produced an excellent one-page summary of what boards are all about.
DRBF One Pager 2023
Just the job for a quick explanation for parties who might – or should – consider using a board.
The Dispute Revew Board Foundation Region 3 has now announced the Breakfast Briefing that I will be delivering on 7 November:
MONTHLY BREAKFAST BRIEFING WEBINARS
Region 3’s monthly series of Breakfast Briefing for members continues. Register in advance for the 2023 series for one or more sessions:
Missed an event? All our past events are available to members in the library.
The next Breakfast Briefing/Zoom Webinar is as follows:
Date: Tuesday, 7 November 2023
Presenter: Robert Fenwick Elliott
Topic: “Reading between the Lines of the Contract – Extra-Contractual Routes to Recovery”
• Robert Fenwick Elliot is vastly experienced Senior Counsel specialising in construction / contractual issues.
• Robert will take listeners through a hypothetical example and see how extra-contractual issues can so easily arise.
• Robert will suggest that DAB practitioners need to be realistic in discussions with the parties about extra – contractual remedies.
DRBF has issued an email invitation to all financial members and once you have registered you
My post on the timing of adjudiucation applications has been published in the Australian Construction Law Newsletter.
It highlights an absurdity in the interstate differences. But one might not hold one’s breath about the likelihood of it being fixed.
There are numerous reasons why it would be sensible for there to be a single security of payment regime operating throughout Australia. That was the recommendation of the Society of Construction Law Australia in 2014. It was the recommendation of the Murray Review in 2017. In particular, the legislation is complex. The New South Wales Act, for example, is 16,011 words long. The Queensland Act is even worse – much worse – at 52,629 words. It is absurd that parties and their lawyers – subject to very short timescales – have to navigate not only these complex regimes, but if they practice interstate, also to navigate intricate differences State by State.
One of these differences is in relation to the requirement which appears in all the legislation: that when a party makes an adjudication application, a copy of that adjudication application must be served on the respondent. Section 18(5) of the Victorian Act, for example, provides as follows:
A copy of an adjudication application must be served on the respondent concerned.
Section 21(5) of the Queensland Act is in the same terms. But these same words mean different things in those States.
The provision does not say who has to do the serving. In practice, it is the claimant, or the claimant’s lawyers. Nor does it say when it has to be served. Nor does it spell out the consequence if it is served later than it should have been served.
The issue arose in Queensland in Continue reading