Category Archives: Adjudication

Even Less Support for the Bust

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bustI posted last month about the question of whether an insolvent company may avail itself of the security of payment legislation; see Support for the Bust? It was a topical question because of the increasing number of liquidators who are now seeking to use the legislation, and I concluded that the answer is “no” based on a decision of Young CJ in Eq in and Brodyn Pty Ltd v Dasein Constructions Pty Ltd[3] some 11 years ago. Little did I know that on the very same day as I put that post up, Justice Vickery was busy coming to exactly the same conclusion in Victoria in Facade Treatment Engineering Ltd the Brookfield Multiplex Constructions Pty Ltd [2015] VSC 41.

There were some who doubted my conclusion in a LinkedIn discussion, but this latest decision seems to drive a very firm nail into the coffin of liquidators who seek Continue reading →

RAP

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legalwiseI was asked by Legalwise Seminars if I could present the paper for them at their Contract Law Masterclass at 7.30 tomorrow morning. That was rather too early for me; I’m doing it instead at the slightly later time of 8.50 at the Stamford Plaza in Adelaide.

My paper has the rather odd title  Rap Your Way to the New Beat: A New Approach to Contract Drafting. It has nothing to do with rap music at all, of course. Instead, it is an acrostic for review boards, adjudication and preaction protocol.

The general drift of my paper is that it is dumb for those who draft contracts to ignore any of these things. Review boards, or Dispute Avoidance Boards as they are often now known in Australia, are a hugely successful way of managing out the risk of disputes on Continue reading →

Support for the Bust?

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bust

Update; see Even Less Support fo the Bust

The construction industry in Australia seems to be going through rather a hard time at the moment, and there is a fair bit of insolvency about. There is topicality in the question,

“Can a company in liquidation avail itself of the Security of Payment Legislation by validly commencing an adjudication?”

It is not hard to find examples of liquidators who take the view that the Security of Payment Legislation is available for them[1], or of adjudicators who share that view, but what is the true legal position?[2]

There appear to be no decided cases on the validity of an adjudication process where the claimant was in liquidation before commencing the adjudication. However, it is not a question that is entirely devoid of authority, and indeed the answer “no” to the question posed above emerges from Continue reading →

SA SoP Rev

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The Governement of South Australia is reviewing the operation of the security of payment legislatioin here in the state, and I was asked by the Law Society to lob in my twopenny worth.

In doing so I tried to consuklt as widely as possiblew with other members of the Society Of Constrcxution Law Australia in the State.

This is the result, which went in today: Continue reading →

Britton wins in Britain

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Philip-britton.webI see that my old friend Professor Philip Britton has yet again won the Hudson prize – this time jointly – being the annual prize of the Society of Construction Law in the UK. He has now won this prize several times, this one is called ‘Adjudication and the “residential occupier exception”: time for a rethink?’.

It is now a very long time since I first met Philip, making television programmes. In those days, it was quite common for solicitors in the UK to obtain their CPD points by watching videos on legal topics, and Philip ran a company which made these videos. Happily for me, he invited me to appear on a number of these, and it was all rather good fun. There is Continue reading →

Decisions, decisions

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robert state library (5 of 5)I have reached the stage in my career at which a number of old friends, and contemporaries amongst whom I practiced as a young lawyer, have gone the bench to sit as judges, and rather more of us now take appointments as adjudicators, arbitrators, dispute board members and the like.

Having  just finished writing another determination as an adjudicator in the Northern Territory, I have been struck again as to how much more satisfying it is these days to be able to deliver sensible legal results. Results that are on a timescale and at a cost that is hugely much more sensible that the typical cost of trials in the conventional legal system.

The quantum of this latest adjudication process was about the same as that in the last couple of trials I have done as counsel, in South Australia and in Victoria.  The total cost Continue reading →

Babushka Contracting

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babushkaSome feedback on the Society of Contraction Law Australia Linkedin Discussion page prompts me to expand a little on the ways that a head contractor might avoid the very unwelcome risks associated with the supporting statement requirements in the latest NSW SoP amendments.  There was also some discussion about this at the SoCLA event in Sydney last week at which I was a panelist and which, I am told, attracted the biggest response ever for a NSW SoCLA event.

There may be a number of approaches, but at least two seem to me to be obvious contenders: payment disclaims and babushka contracting.

Payment disclaims have been the subject of a previous post. Given subsequent comment, I might just add this: that it is plainly optional for a head contractor (or any other party in the contractual chain) to make a statutory payment claim. Section 13 Continue reading →

CLIC CLIC

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clic2014There are now several Societies of Construction Law around the world; I was previously a member of the SCL in the UK, but now sit on the board of SOCLA, being the Australian member of the family. Every couple of years, the societies get together for an international conference, and last week it was in Malaysia. Perhaps the word “society” was regarded as old-fashioned (if so, I blame that Tony Blair) but in any event, this year’s international gig was entitled CliC2014.

There is no SCL in the USA or Canada, but they do have Continue reading →

Amendments to Queensland’s Building and Construction Industry Payments Act 2004

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Queensland’s Building and Construction Industry Payments Act 2004  has now been amended by the Building and Construction Industry Payments Amendment Bill 2014. There are a fair few of them; as applied to the existing Act, the  result is here: BaCIPAQ2014. New provisions are shown in red, or, in the case of those relating to the complex claim category, in brown. I have left the formatting more or less as it comes off the AUSTLII copy, but tidied it up somewhat around the changes.

By far the most significant change is that adjudicators are no longer appointed by ANAs, but instead by the government Registrar. This should remove what many have regarded as the institutional pro-claimant bias inherent in the old system.  The change is consistent both with the recommendation of the Wallace Report, and also that of SoCLA’s Report.  Query how long Continue reading →

Queensland Edging Closer to Abolition of ANAs

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For latest news; see bottom of post.

I am grateful to Matthew Bell for drawing my attention to the recent report of the the Transport, Housing and Local Government Committee Report N0 52 in Queensland.

It is not a very promising title, but nevertheless it is both interesting and important in this area. It arises in this way:

  • Since 2004, private companies have been in the business of nominating adjudicators for construction disputes in Queensland. They are known as Authorised Nominating Authorities, or ANAs.  The busiest ANA has been Adjudicate Today, whose chief adjudicator has been Philip Davenport;
  • It has always been a distinctly suspect system.  For-profit companies have been making their money by marketing the adjudication process to potential claimants, charging potential adjudicators for training, and then charging the adjudicators again a cut of their fees as a condition of appointing them;
  • There has been a chorus of complains about the way the system has worked;
  • Recently, Mr Davenport parted company from Adjudicate Today, apparently unhappy about the way it works, and set up a new ANA;
  • Last year, a Queensland barrister, Andrew Wallace, delivered his report to the Queensland government. Mr Wallace was particularly critical of the ANAs, the expression “conflict of interest” appearing 14 times and the word “bias” appearing no less than 61 times.  Sensibly enough, he suggested that  adjudicators ought to be nominated by a government agency in place of the ANAs;
  • The Building and Construction Industry Payments Bill 2014 was drawn up to implement the substance of Mr Wallace’s recommendations;
  • The ANAs did not welcome these changes, which would of course severely affect their income stream. In the May this year, the Bill was sent off to the Committee for examination.

Continue reading →