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.
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:
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.
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 firstname.lastname@example.org.
The decision is a lengthy one, at 1451 paragraphs over 458 pages, covering a number of matters including prevention. 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  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. 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.
We are down to the last few days now of the pre-order discount period for Extra-Contractual Recoveries, and I am pleased to say that people have been buying the book, notwithstanding that none of the construction law publications have yet reviewed it, and we are still waiting for completion of the printing process.
I am grateful for the suggestion of Julian Bailey of White & Case for his suggestion of London Publishing Partnership as the publishers for my book. He switched to them for his third edition of his 3 volume work Construction Law, in part because it enabled a massive reduction in the price of the book (which I thoroughly recommend, by the way; it really is the lawyers’ law book on construction law: whilst it does not have the history of Keating or Hudson, it is considerably more detailed at some 2,300 pages. And so while construction lawyers might sensibly start with Keating or Hudson for a summary of the law on any particular construction law topic, it is then wise to look to Bailey for the more nuanced wrinkles).
For those following the Façade Designs International v Yuanda saga, an update:
FDI, having issued proceedings against Yuanda, has been ordered to provide security for costs, on the basis that there are credible grounds that it may not be able to pay the costs of Yuanda if ordered to do so. The initial tranche of security – to close of pleadings – is $200,000.
More unusual was the application that FDI’s solicitors Piper Alderman be restrained from acting for FDI unless and until an adequate information barrier (Chinese wall) be put in place. This issue arose because it emerged that Piper Alderman partner Daniel Fitzpatrick, who had conduct of the case, had previously acted for Yuanda on a number of occasions when employed by Gadens. Following what Justice Delany described as “gradual movement on the part of Piper Alderman” over some months the requirements of a proper Chinese wall were eventually put in place, such that Piper Alderman were permitted to continue with a fresh team (not including Mr Fitzpatrick), but a costs order was made against Piper Alderman and FDI was made in respect of the application.
The security for costs order was made on the basis of the inference that FDI’s refusal to disclose its full financial position was motivated by a wish not to reveal liabilities, as to do so would likely confirm impecuniosity. This approach is sometimes characterised as the rule in Browne v Dunn. Justice Delany referred to the much more recent decision, just a few days earlier, in Wu v Bi.
I was instructed by Yuanda as leading counsel on both limbs of this, and so Continue reading →
Dragon, the voice recognition software, is pretty good these days, if used with a decent computer and a decent microphone. But it does have its issues, sometimes misunderstanding what is intended.
I meant this morning to send a round robin email to a few people I know to give them the preorder details for my new book. I was planning to send a test version of the email to my PA. But instead, my Lodestone application sent the round robin to a much wider group of recipients!
Dragon was open at the time, and I think it might have overheard me talking to my PA, and interpreted what it heard it as an instruction to send the email out to the wider group. Either that, or Continue reading →
I am pleased to say that the paper I have proposed for the Society of Construction Law Australia’s conference this year in Tasmania – EXTRA-CONTRACTUAL RECOVERIES: 12 HIDDEN OPPORTUNITIES AND RISKS – has been accepted. Subject to some unwelcome relapse into Covid hysteria, this means that I will be in Hobart in person at the beginning of May. SoCLA’s website announces the conference as follows:
SoCLA 2022 National Conference “Getting Risk Right”
Thursday 5 May 2022 to Saturday 7 May 2022
Hobart Function and Convention Centre
The National Conference is a highlight of the SoCLA year.
The 2022 National Conference will be held from 5 – 7 May 2022 in Hobart, Tasmania.
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.