We have all spent far too long cooped up, and this conference should be a welcome breath of fresh air. Hobart is great fun, and I encourage as many people as possible to attend in person. I certainly look forward to being able to catch up with friends in the profession in the real world, and not merely virtually. Over the past couple of years, I have become – like others – a veteran of virtual hearings and conferences.  Virtual hearings are rather better than I had expected, but there is something dull and lifeless about virtual conferences.  A lot of what one gets out of conferences is what passes outside of the lecture rooms, and besides, some human contact between practitioners helps to oil the wheels of the legal profession.

As it happens, the conference falls just a week before the publication date for my book on Extra-Contractual Recoveries for Construction & Engineering Work, due on 12th May.  Printing for that is due to happen next month: the page count has turned out at 518 pages for volume I and 752 pages for volume II.  The conference paper will give me an opportunity to introduce just some of the routes that I discuss in much more detail in the book to an Australian audience.

The abstract for my paper is as follows:

 

 

Abstract

Proposed Paper for 2022 SoCLA Conference

EXTRA-CONTRACTUAL RECOVERIES:

12 HIDDEN OPPORTUNITIES AND RISKS

Far more often than is apparent from the express wording of a construction or engineering contract, there may be extra-contractual routes to recovery of payment for work done. These include not only causes of action but also ways in which express contractual impediments to payment may be circumvented. This paper will consider 12 such routes.

As bespoke contracts have become lengthier, and more heavily laden with Queen of Hearts clauses and “I Delay, You Pay” arrangements, these routes have become all the more important. They are not much taught in law schools, and are frequently overlooked by claimants to whom they may be available.  As such, they represent hidden gems for claimants.  They also constitute risks employing parties – both owners and contractors who engage subcontractors –  that may not become apparent until a legal case against them has been advanced in legal proceedings.

The Quantum Meruit Alternative – Two Types of Quantum Meruit

A look at Benedetti v Sawaris.[1]

Damages for Misleading or Deceptive Conduct

The series of decisions in the Abigroup  v Sydney Catchment Authority litigation[2] illustrates how a contractor may be able to recover damages for misleading or deceptive conduct for the cost of dealing with unexpected ground conditions, notwithstanding the non-reliance provisions in the contract.

Misleading by Programme Claims outwith the Reach of Time Bar

Recent authority has shown that where a subcontractor has been misled into entering the subcontract by a contractor’s programme that was never going to be achieved, its claim for damages under section 18 of the Australian Consumer Law will not ordinarily be caught by time bar provisions in the contract.[3]

Damages as an Alternative to Contractual Claims

A claim for damages for breach of an implied term as to access may also be outside the reach of a time bar provision which would have caught a similar claim made pursuant to the terms of the contract.[4]

Breakdown of Contractual Machinery

There is English authority showing that the failure of a certifier to make a proper time analysis when considering extension of time can amount to a breakdown of contractual machinery, such that a court may substitute its own assessment for that of the certifier.[5]

Gaymark Lives

The decision in Gaymark Investments v Walter Construction Group[6] – that time may be set at large when extension of time provisions have been rendered inapplicable by a contractor’s failure to give requisite notice – is often regarded as an outlier, notwithstanding that it has never been overruled in Australia. But a recent paper[7] presents a detailed analysis suggesting that it was correctly decided, and that the prevention principle is not merely a matter of implication, but a rule of law not easily displaced by a mere entire agreement clause.

Non-Payment setting Time at Large

A Hong Kong arbitral award – finding that time had been set at large by the owner’s non-payment –  was upheld on appeal.[8] The way may thus be open for a contractor to recover its claim for payment in full – without deduction of liquidated damages – where the owner has not paid on earlier payment claims on time.

Braganza Requirements in Certification

The Braganza[9] requirements of lawfulness, rationality, good faith and consistency may apply to certification and valuation.

Relief from Forfeiture

Cavendish v El Makdessi, ParkingEye Ltd v Beavis[10] shows that the penalty rule is merely the first stage in a two-stage test of the enforceability of liquidated damages, the second being relief from forfeiture.

Relief under Section 21 of the Australian Consumer Law

Section 21 may provide a parallel route to relief from forfeiture.

Void Provisions under Security of Payment Legislation

The anti-avoidance provision here may be much wider than usually assumed.

Direct Enforcement of the Right to Progress Payment

Possibly, rights to payment under the security of payment legislation may be enforceable directly.

[1] [2013] UKSC 50.

[2] [2004] NSWCA 270, [2005] NSWSC 662, [2006] NSWCA 282 and [2007] NSWSC 220.

[3] Brighton v Australia v Multiplex Constructions [2018] VSC 246.

[4] Decor Ceilings v Cox Constructions (No 2) [2005] SASC 483.

[5] John Barker v London Portman Hotel (1996), CILL 1152, 83 BLR 31.

[6] (1999) NTSC 143.

[7] The Prevention Principle and Making the Contractor pay for Employer Delay:  Is English Law departing from its Roots? published in the International Construction Law Review; Tony Marshall (2020) 37 International Construction Law Review 326 (part 1); (2021) 38 International Construction Law Review 88

[8] CCECC  v Might Foundate [2001] HKCFI 714

[9] Braganza v BP Shipping [2015] UKSC 17

[10] [2015] UKSC 67.