For the last year or so I have chaired the Australian Legislation Reform Subcommittee of the Society of Construction Law Australia. I has taken us quite a while to complete our report on adjudication of construction disputes, but we got there in the end.
This has gone out to SoCLA members: Continue reading
The Malaysian Construction Industry Payment and Adjudication Act 2012 came into effect on 15th April 2014.
Section 22(2)(c) of the Building and Construction Industry Security of Payments Act 2009 (SA) permits an adjudicator to consider, among other things, the payment claim and all submissions that have been “duly made” by the claimant. What is the position if the adjudicator considers other material that has been provided to him by the claimant?
The issue arose last week in the Supreme Court of Queensland in J Hutchinson v Cada Formwork [2014] QSC 63. The equivalent provision in Queensland is section 26(2) of the Building and Construction Industry Payments Act 2004 (Qld), where the formula is submissions “properly made”. On the facts, the material in question was an email Continue reading
The Prezi for my presentation for the Society of Construction Law Australia on 18 March 2014 is at:
http://prezi.com/nsjgomye7qw4/security-of-payment-south-australian-cases-so-far-and-futur/
Is 
Dropbox a valid means of service? It might be if it is agreed, or the documents are in fact downloaded by the recipient. But don’t count in it. In Conveyor & General Engineering Pty Ltd v Basetec Services Pty Ltd and Anor [2014] QSC 30 an adjudicator’s determination was found to be of no effect because of the adjudicator’s error as to the validity of service Continue reading
SoCLA has announced the presentation I am giving on 18th March in Adelaide:
The SA Branch of the Society of Construction Law Australia invites you to join us to discuss ‘Security of Payment: South Australian cases so far and future prospects’.
Presented by Robert Fenwick Elliott, Barrister, the session will focus on:
My paper on the increasing importance of fraud in challenges to adjudicator’s decisions has just been published in the Australian Construction Law Newsletter. It looks not only at some recent case law, but also at how fraud – as widely defined for this purpose – is remarkably common in this context. The article in full is here; it begins thus:
The recent decision in Sugar Australia v Southern Ocean Pty Ltd [2013] VSC 535, a decision of Justice Vickery on 15 October 2013, sheds some vivid light on the potential importance of fraud in security of payment cases. This paper considers how the law stands in this area, how this case develops the detailed application of the relevant principles, and what the potential avenues are for parties seeking to challenge adjudicators’ determinations on this ground.
A starting point is not hard to find; Continue reading
I am back in chambers following the New Year break.
The clerks’ room will be quiet for another week – call me on my mobile (0415 668 665) if you have any difficulty getting through.
It will be interesting to see if there are any Christmas ambushes this year under the Building and Construction Industry Security of Payments Act 2009 (SA). It is notable how on the East Coast many payment claims are made just before Christmas – the 15 day period for providing a payment schedule (as it is in SA – 10 days elsewhere) runs only “business days” ie
any day other than—
(a) a Saturday, Sunday or public holiday; or
(b) 27, 28, 29, 30 or 31 December; or
(c) any other day on which there is a Statewide shut-down of the operations of the building and construction industry;
but time still runs even though many people will be on the beach in the first half of January. Continue reading
In a decision handed down on 19 December 2013, the Adelaide Magistrates’ Court has accepted my argument that Cant v Casella governs the position in SA i.e. a builder without a requisite building licence cannot make a valid claim under the security of payment legislation. On inter alia this ground, a default judgment was set aside.
The decision also makes the point that, Continue reading
Romaldi’s challenge to the enforceability of the adjudicator’s decision in Adelaide Interior Linings has been rejected by the Full Court.
The decision is here: Romaldi v AIL [2013] SASCFC 124