Just back from the Dispute Resolution Board Federation Advanced Workshop in Brisbane which was held this past weekend.
Brilliant. A really good day, with absolutely practical guidance from people who know exactly what they are doing.
For someone like me, who has gone to the bar rather late in life, Dispute Review Boards (or Dispute Avoidance Boards as they are often called here in Australia) are a breath of fresh air. The bar makes most of its income from trials, and so it is perhaps inevitable Continue reading
The Society of Construction Law Australia is holding Christmas parties all over the country; in Adelaide, there is going to be a garden party on 12th December at my house.
How do you get to join in the fun? Members of SoCLA get to come – no charge. So, if you are not a member already, this would be a very good time to join.
In London, the Society of Construction Law used to get Michael Stimpson and others to bring along a banjo or guitar for this sort of event, and that added a fair bit to the jollity of proceedings. I wonder if anything similar might be going to happen here?
Romaldi’s challenge to the enforceability of the adjudicator’s decision in Adelaide Interior Linings has been rejected by the Full Court.
The decision is here: Romaldi v AIL  SASCFC 124
The amendment proposed by the opposition to the Building and Construction Industry Security of Payment Amendment Bill 2013 (NSW) has been accepted, and the Parliament website reports that the Bill is now awaiting Assent.
What happens next? Well, presumably there will be Assent, but logic would suggest that the amendments will not be proclaimed until the necessary regulations have been prepared, and these are going to be the subject of further industry consultation Continue reading
I posted earlier on the amendments proposed in NSW to their Security of Payment legislation.
Yesterday, the opposition got through an amendment in the Legislative Council, giving the power for the government by regulation to legislate for statutory retention money trusts.
The Hansard debate makes for frightening reading. Continue reading
The Road to Hell
In February of 2013, Bruce Collins QC’s final report into insolvency in the construction industry in New South Wales was released. It was a lengthy thought-provoking document which canvassed a number of interesting ideas about how the problem of construction insolvency might be addressed. It made some 44 recommendations, central to many of which was the concept of a statutory construction trust. The idea of such a trust is hardly at the libertarian end of the spectrum – it is to say that a party who undertakes to carry out work for a principal for an agreed sum is not permitted to be paid that sum. Instead, it must be paid into a trust, so it may be shared out among other parties who have undertaken part of the work as subcontractors. It is a bold notion which has gained some traction in large government contracts in the UK, but not one which the NSW government is presently prepared to embrace. Instead, it has cherry-picked a number of the other recommendations out of the report. These are embodied in the Building and Construction Industry Security of Payment Amendment Bill 2013 which, at the time of writing is rapidly passing its way through the legislative process.
Bizarrely, the Bill is anathematic to the central recommendation of the construction trust, and seems set, if passed, not only to reduce the effectiveness of the existing Security of Payment legislation, but itself being the cause of increased insolvency and to cause a mass criminalisation of the NSW construction market. This article examines how Bill works, and why there is good reason to fear these results. Continue reading
This is my review of BEST PRACTICE IN CONSTRUCTION DISPUTES: AVOIDANCE, MANAGEMENT AND RESOLUTION by PAULA GERBER and BRENNAN ONG [Lexis Nexis Butterworths Australia, 2013, $AU116].
This reviewer did not require much persuading to review Dr Paula Gerber’s latest book, written with her colleague Brennan Ong, because they always bring a welcome freshness and perspective, and it was readily predictable that this book would be good.
In fact, it is not merely good, but startlingly good, and does exactly what it says on the cover, analysing how we may best Continue reading
This short paper has just been published in Australian Construction Law Newsletter:
Three Early Security of Payment Cases in South Australia
Robert Fenwick Elliott[i]
The Building and Construction Industry Security of Payment Act 2009 (SA) (closely modelled on the NSW Act) was enacted in December 2009, but challenges under it have only just started reaching the courts. In part, this is because the Act does not apply to contracts entered into before 10th December 2011, and in part because it has taken a while for potential cases to work their way through the system. But there have now been three cases which provide an early indication of the reception that the Act has received from the courts.
The Adelaide Interior Linings case first came before the District Court as Romaldi Constructions v Adelaide Interior Linings  SADC 39 (3 April 2013). Judge Barrett granted an injunction restraining the enforcement of the determination for $51,219.83, saying:
I find that there is a real risk of the defendant’s inability to repay the adjudication sum if the injunction is not granted. I find that the balance of convenience favours the granting of the injunction.
The decision was remarkable, because Continue reading
I am currently working a new book, Extra-Contractual Recoveries for Construction & Engineering Work. The idea is simple: a contractor has done work, but the contract does not contain any provision which provides for him to get paid what he might commercially expect. He can read the contract once, twice or twenty times, but that will not inform him at all as to what legal routes might enable him to get paid.
Over the years, I have collected a great deal of money for clients, and much of it has been via extra-contractual routes: quantum meruit, misrepresentation, damages claims and the like. It seemed a good idea to write down what I know, but it is taking a fair bit of time. The book is inevitably international, since the common law principles come from a variety of jurisdictions. But I am trying to restrict the discussion of legislative routes to the UK and Australia, being the places I am admitted in.
There was a time when I was young that I thought I might end up in the Army. But as time has gone by, Continue reading
I have moved this site to a WordPress format, which will allow a number of improvements. You can like things, follow things and comment on things.
This new site is basically a blog, which means that new things appear here. But there also pages of more permanent material, much of which I have imported from my previous practice site. There is a search facility, which should find anything on the site, whether added as a blog or on one of the permanent pages.