Postponed by the Post Office Box

I noted a few months ago that service by Dropbox was unreliable under the Security of Payment legislation[1].

The Supreme Court in Queensland has just reached a similar conclusion in relation to Post Office boxes. In CMF Projects Pty Ltd v Masic Pty Ltd [2014] QSC 209 the adjudicator has declined to consider the Adjudication Response because he reckoned it was out of time. That timing turned on the question of whether the notice of acceptance of the appointment had been effectively served by the ANA posting it by Express Post to the respondent’s Post Office box.

The issue was complicated by the adjudicator not having himself served the acceptance notice at all. Section 23 of the Continue reading

Security of Payment — a Practical Guide to Sabotage

Major Ian Fenwick behind enemy lines in France

Major Ian Fenwick behind enemy lines in France

There is much to be said for the view that, in the long run, the most effective way to procure construction work is to use standard forms, and to take a reasonable approach to the allocation of contractual risks, avoiding excessively onerous provisions.  Thus, the notably successful strategy of The Olympic Delivery Authority in London was to use the NEC contract, and the World Bank now mandate the use of review boards which provide a prompt and reasonable way of preventing construction issues escalating into full blown disputes.  Experience shows that testosterone-fuelled drafting might be good for the income of construction lawyers, but does little to advance the interests of those procuring construction projects.

In any event, much of the typical onerous drafting that one sees today is entirely ineffective in jurisdictions subject to the East Coast Model of Security of Payment legislation, which drives a coach and horses through the contractual regimes.  In the face of that legislation, owners and head contractors are often thrown back onto mere bullying, threatening contractors and subcontractors that they will be blacklisted if they make use of the legislation.  Interestingly, however, contracts very rarely take any useful steps to emasculate the effect of the Security of Payment legislation, even where there is scope to do so.  Perhaps this is because the legislation itself is such an anathema to the contract draftpersons that they cannot bring themselves to read it, and work out how to best circumvent it.  With this in mind, these thoughts are offered as to how the Act might be addressed.  References are to Continue reading

A Place for the Product Star

product-star-mmI have been working on my book Extra-Contractual Remedies, and exploring the thought that The Product Star is a case that has been rather overlooked in construction law. There is a passing reference in the BLR commentary on Balfour Beatty v Docklands Light Railway, but that is about it.

Given the endorsement of the principle by the Supreme Court a few weeks ago, I wonder if might be time for more attention.  I know it is a shipping case. But even so…

My draft is currently thus, on this topic:

The Rational Exercise of Contractual Powers – The Product Star

1                    There are a number of commercial cases which show that a party with a contractual right to exercise a discretionary power may be subject to an implied obligation to exercise that power rationally. This line of authority stems from this passage in The Product Star Continue reading

Another just back

Just back from Melbourne, where I was in trial for the whole of last week.

It was unusual, these days, to wear a wig for a whole week.  Most places in Australia dispense with them for civil matters. Then again, Victoria is one of the few places (the only place?) where solicitors sit with their backs to the bench. And for that matter, where the Tipstaff calls out,  “God Save the Queen” at the beginning of every session.

Anyway, I am off to Alice Springs tomorrow morning. Back on Friday. Email contact might well come and go in the meantime.