Many if not most construction contracts contain notice provisions, which are fine: contractor have to give reasonable notice of their claims. Others contain Queen of Hearts clauses: clauses which are designed to be practically impossible of compliance and hence to frustrate the underlying contractual scheme of payment for varied work, extension of time in defined circumstances, etc.
Recently, I have seen examples where
The contractor is required to give no less than 10 notices/claims in respect of the same event, each expressed to be a condition precedent to payment;
The contractor is required to provide a full time impact analysis every time something happens which might – just might – cause a delay;
If the employer issues a variation order, varying the work, the contract has to promptly give notice in a prescribed form that the variation order varies the work. Again, this completely pointless notice is a condition precedent to payment for the varied work.
I have not yet seen a provision requiring claims to be submitted on unicorn vellum and served on Father Christmas, but the effect is much Continue reading →
I have not been posting here as much as usual recently, for the prosaic reason that I have been fully stretched working on cases that have demanded full-time attention.
One advantage of the bar is that there is a sort of self-limiting protection against overwork: one can only be in one court at a time. And so I have had to turn away a number of briefs recently simply because I have been already briefed to do something else at the same time. When I was a solicitor, there was no such mechanism. So, “Sorry” to those I have had to say “no” to.
The great majority of what I have been doing has been in relation to adjudications, and I was very pleased to see that the Federal Government has launched a review into the absurd disparities between the Acts in different States and Territories, to be run by John Murray. I was honoured to be able to lead the Society of Construction Law Australia’s report into all of this in 2014: we came down firmly in favour of a federal system. I have acted or advised in adjudications in all jurisdictions in Australia apart from Tasmania and the ACT, and have encountered no good reason at all for the present patchwork of quite different regimes in different States and Territories. The challenges and the best answers are the same everywhere.