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:

Continue reading →

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 →

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.

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 →

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).

At £195 in the UK and $395 in Australia, my book is not, perhaps, Continue reading →

The programme for the SoCLA conference in 3 weeks’ time is now out.

SOCLA 2022 National Conference – Programme (website)

I get the last word, on the Saturday, it seems!

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

It was a great pleasure to hear today from Simon Tolson, the Honorary President of TECSA – the Technology and Construction Solicitors Association in the UK – that

the Committee has resolved to make you an Honorary Member of TECSA from this January in recognition for your past contributions to the Association. It reflects your great strides as Chairman and your long service from ORSA/TECSA’s formation particularly with Technology, the advent of Adjudication, ADR and Litigation.

I know you are a barrister but we have arranged the constitution to permit such recognition.

Simon is an old friend, and now senior partner of the law firm I founded in London: Fenwick Elliott LLP.

TECSA does excellent work, and I know that its voice has long been heard in relation to legislation and rules concerning the practice of construction law; it was a privilege Continue reading →