A Farewell to Arms

I am pleased to be able to report that, after umpteen tests, my health scare is now over. I am told that I have just one more exploratory medical procedure to go, but believe that the recommendation for that is merely precautionary. Meanwhile, during the three months that I have been recuperating, I have recovered much of my previous rude health.

During this period of recuperation, I have handed over the whole of my caseload to other counsel, and have now decided that, rather than resume my practice as a barrister, and after some 44 years since I first started practising as a specialist construction lawyer, this is the appropriate time for a change.

Henceforth, I will practice as a pendulum arbitrator and mediator.

Pendulum Arbitration

I am one of the few construction lawyers in Australia with experience of pendulum arbitration, and am, I believe, the only arbitrator specialising in this form of dispute resolution. It is a form of dispute resolution which I have long regarded as much underused in the construction sphere offering, as it does, massive advantages in terms of reduced cost, increased speed and the opportunity for disputants to get on with their business without distraction. A fuller explanation of how pendulum arbitration works is here. And some Q&A.

A feature of pendulum arbitration is that it works best if the disputants have a high level of confidence that the pendulum arbitrator has the necessary experience and expertise in construction law to be able quickly and reliably to make an assessment of the strengths of their cases. I believe that I have that necessary experience and expertise.

Mediation

Mediation is, of course much better known. I have been occasionally mediating construction disputes since the 1990s although not, hitherto, as a mainstay of my professional work[1]. So far, I have never failed to resolve a dispute in which I have been appointed as mediator. I do not expect this track record to survive indefinitely, but I hope it will give confidence that I am a safe pair of hands in this capacity.

It will not be necessary for me to maintain my practising certificate in these new roles, and I do not propose to do so once my current certification runs its course.  This means that I part company with Keating Chambers, of whom it has been my great pleasure to be an International Member for some years, not only because of my friends there, who I have known since my days as a young lawyer in London, but also because of its ever increasing status as the leading set of construction law chambers in the common law world.

Other methods of dispute resolution

I remain a registered adjudicator in the Northern Territory, and a member of the Dispute Review Board  Foundation, and am available for appointments in those Continue reading

An Influential Text

I am gratified to see that Construction Law Journal has published a review of my book by Dr Hamish Lal, Adjunct Professor of Law at Sutherland School of Law. There are several words and phrases which would warm the cockles of any author’s heart:

  • eminent in the field of construction law
  • the full spectrum of potential arguments
  • well researched
  • powerful
  • There is no obvious gap or need for improvement in this book
  • comprehensive
  • excellent point of reference to counsel, arbitrators, judges and construction industry professionals
  • forces readers to think creatively
  • an important compelling authority
  • an influential text

The review in full is on my reviews page.

I hope it is not unduly selfish of me to Continue reading

Praemonitus praemunitus

Praemonitus praemunitus (forewarned is forearmed) has always been a good motto, and I am pleased see that Richard Winward uses it to suggest that my new book is valuable for paymasters as well as contractors.

Happily, his review in Designing Building, the Construction Wiki is again favourable, concluding:

The book achieves a good balance between legal analysis and practical application … It should be a welcome addition to the bookshelves of contractors, clients/developers and their professional teams.

I have added the review to the collection of reviews.

ECR Reviews

I have long thought that the Australian Construction Law Newsletter is rather a good publication.[1] and I am even more favourably disposed to it since they have just published a favourable review of my book Extra-Contractual Recoveries[2] by Phillip Greenham, until a few years ago the senior construction, engineering and infrastructure partner at Minter Ellison, Melbourne, and now arbitrator.

The review says that I have “vast knowledge and interests” and that the book is “informative, authoritative and comprehensive”. That is very flattering, of course, especially coming from someone with such formidable seniority and experience. More practically, it says

Any advisor looking to assist a contractor who has its back against the wall because of provisions in a contract will be greatly assisted by the book.

And that is certainly Continue reading

Dublin in November

A link for the purposes of registering for the SCL Irish Conference – An overview of road, airport, marine & wind-farm construction disputes in Dublin in November has been posted by Arran Dowling-Hussey on LinkedIn:

Robert Fenwick Elliott from Keating Chambers gives the (virtual) key note The Society of Construction Law Dublin conference on 24.11.22. The event is a physical conference and all other speakers appear in person; to book:- https://lnkd.in/e_2BTfPB#construction
The when and where:
When
November 24th, 2022 9:30 AM IST to  4:30
Location
The Spencer Hotel
Excise Walk
Ifsc
Dublin 1
Ireland

Event Fee(s)
Quantity
Single place(s)

€ 150.00 (includes VAT of € 28.05)

 

Continue reading

All around the world…

I was expecting to be in the Supreme Court of Victoria on Friday (virtually) but that was been adjourned by consent. Tomorrow I will be in Auckland in New Zealand (virtually) talking at Brightstar’s conference Building and Construction Regulation and Law about (surprise surprise) Extra-Contractual Recoveries. Meanwhile, I have accepted an invitation from the indefatigable Arran Dowling-Hussey to give the keynote speech at the Society of Construction Law Ireland conference in November in Dublin (virtually), which sounds fun, and which might be even more fun if I’m able to get there in person.

It is hard not to have mixed feelings about this brave new world of virtual appearances. I used to spend a lot of time on aeroplanes, and to some extent of course it was wasteful to the point of absurdity (more than once, I have been asked to fly a thousand miles for a directions hearing). But there is something about being there in person which is missing from the virtual thing.

And from a selfish point of view, looking back, I think my Continue reading

Email trouble

My chambers introduced a new inter policy – we all have to install Microsoft InTune.  It seems to be something akin to an internet equivalent of those electronic tags they put on criminals.  I hate it. Longer and more tedious PIN & password requirements.  It slowed my Surface to a snail’s pace.

 

Anyway, no chambers email for the last hour.

 

To contact me until this gets sorted , please copy emails to me to robert@feconslaw.com.

EXTRA-CONTRACTUAL RECOVERIES: 12 HIDDEN OPPORTUNITIES AND RISKS – The Paper

Here is my paper delivered at the Society Of Construction Law Conference a couple of weeks ago:

 

SoCLA National Conference 2022

“Getting Risk Right”

 

Hobart

5 – 7 May 2022

 

EXTRA-CONTRACTUAL RECOVERIES:

12 HIDDEN OPPORTUNITIES AND RISKS

 

Robert Fenwick Elliott[1]

 

Introduction

  1. As bespoke contracts have become lengthier, and more heavily laden with Queen of Hearts clauses[2] and “I Delay, You Pay”[3] arrangements, it has increasingly been the case that the contractual entitlement of contractors and subcontractors to commercially reasonable payment for their work is shut out by express contractual provision. They may read the contract once, twice, or 20 times, and find no express contractual route to payment. In those circumstances, it is necessary to turn to extra-contractual routes to recovery; that is to say routes to recovery that are not to be found in the express words of the contract.
  2. 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 can represent hidden opportunities for claimants.  They can also constitute hidden risks for 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.
  3. Understandably, a good deal of what is said and written about construction law centres on construction contracts. This paper focuses on one aspect of construction law: what rights are available to a party which executes construction or engineering work to get paid? And understandably, people typically start looking at the express wording of the contract. And those who are to pay for the work typically assume that their liability to pay is limited to what the contract says.
  4. There are two particular problems with this approach. Firstly, there are numerous alternative routes to payment for work other than the express wording of the contract.  This paper is intended to illuminate the overall landscape of extra-contractual recovery by looking at a dozen particular paths.[4] Some of them are very well established. Others are more speculative.
  5. The author has not made a precise count, but guesses that in about half of the recoveries in which he has been involved as a lawyer have involved[5] some element of extra-contractual recovery, often pleaded in the alternative to the contractual right.
  6. As one looks at these alternative routes, one sees a second problem. Very often, parties do not do what they have contracted to do. Conceptually, this is easily understood where the contractor does not build what he has contracted to build, and thus becomes liable for the cost of rectification, either under the contract or by way of damages. More complex is what happens when the owner, and/or the owner’ s agents, do not do what they are required to do by the contract. A number of the alternative routes to payment are concerned with the legal consequences of such failures.
  7. Clearly, these alternative routes to payment represent opportunities for contractors and risks for owners. They are not as well recognised as they might be, and it is in that sense that they might be characterised as hidden. For the parties who have undertaken work for which they have not been paid, notwithstanding their legitimate commercial expectation, the takeaway from this paper will be that it is worthwhile going through these alternative routes in order to see whether any of them are available. If you are advising an owner, the takeaway is not to be too myopic about the contract: the risks might well lie elsewhere.

Continue reading

Prevention Again, and All That

The Court of Appeal of Victoria, a couple of weeks ago, refused  in V601 Developments Pty Ltd v Probuild Constructions (Aust) Pty Ltd [2022] VSCA 77 (2 May 2022) a stay of execution of the judgment in V601 v Probuild [2021] VSC 849 (22 December 2021) pending appeal. Past experience suggests that such a refusal diminishes the prospect of the appeal being pursued.

The decision is a lengthy one, at 1451 paragraphs over 458 pages, covering a number of matters including prevention.[1] The prevention point here was that the owner had prevented the contractor from putting in claims based (as required by the contract) on the Approved Contractor’s Program, by not approving the contractor’s programs. that is a relatively unusual application of the prevention principle, but not entirely unknown; it is referred to at page 217 of my book on Extra-Contractual Recoveries for Construction & Engineering Work.

The decision  claim about six weeks after the  High Court  refused special leave in Key Infrastructure Australia Pty Ltd & Ors v Bensons Property Group Pty Ltd [2021] HCATrans 185 (5 November 2021), where the issue sought to be appealed  was the nature of the  prevention principle, but Justice Digby  did not  refer either to that  special leave application, nor to the Court of Appeal’s decision in that case[2].  In that case, the Court of Appeal of Victoria found that the prevention principle is only enlivened where the prevention is a breach of contract, and further that it is merely a matter of implied term rather than rule of law. As I have explained elsewhere, the latter is probably a heresy (although not an entirely novel heresy) but the former clearly runs counter to considerable authority, and that authority was not referred to by the Court of Appeal. As such, it seems the decision was per incuriam. Further, the Court of Appeal found as a fact that there had been no prevention, and so in any event the observations of the Court of Appeal about the prevention principle were also obiter dicta. It appears that it was essentially on that basis that the High Court declined to give special leave to appeal – it not being a suitable vehicle to resolve the point.

Some other highlights from the V601 case include: Continue reading