The reasons for a stay in Yuanda v Facade are now available on Austlii.
The meaning of “the claimed amount”
Those who follow the Byzantine ways of the Victorian security of payment legislation may have noticed, last month, the decision of Justice Riordan in Façade v Yuanda concerning the prohibition on the court giving judgment under section 16 (the “no payment schedule” section) of the Building and Construction Industry Security of Payment Act 2002 (Vic) in cases where the claimed amount includes an excluded amount.
These people may or may not have noticed that there have been a couple of further developments in this case since then:
- on 1st October, the trial judge extended the stay of execution in order to allow time for Yuanda to apply for a full stay pending appeal to the Court of Appeal
- on 9th October, the Court of Appeal granted that stay. The court proposes to publish its reasons this coming week.
The appeal itself is likely to be heard sometime in late November.
I did not appear at the trial, but was instructed as leading counsel for Yuanda in both the successful applications for these stays (both vehemently opposed), and benefited from the helpful support of Laura Mills of the Victorian bar as my very able junior. We are likewise briefed for the appeal. Being so briefed, I will not comment further until the appeal is heard, save to say that Continue reading
“I Delay, You Pay”; Another look at Gaymark
A number of times recently I have been asked to advise and prepare submissions on “I Delay, You Pay” arrangements, whereby head contractors have sought to levy liquidated damages on subcontractors for delays caused by the head contractors.
It works like this:
- the subcontract conditions, prepared by the head contractor, contain a Queen of Hearts clause[1], whereby the notice provisions are so onerous that it is vanishingly unlikely that the subcontractor will be able to give a valid notice;
- the extension of the date for completion of the subcontract is subject to the condition precedent of strict compliance with the Queen of Hearts clause;
- the head contract gets delayed, for reasons that have nothing to do with the subcontractor, such that the subcontractor is not given access to the whole of the workface until after the subcontract date for completion has come and gone;
- if there is a clause in the contract entitling the head contractor to extend time notwithstanding the giving of notices, the clause includes anti-Peninsular Balmain wording such that the head contractor is not obliged to so extend time;
- as expected, the subcontractor is unable strictly to comply with the Queen of Hearts clause;
- the head contractor does not extend the subcontract date for completion; the head contractor levies liquidated damages, and sets them off against the subcontract price and/or collects on an bank guarantee provided by the subcontractor;
- sometimes, perhaps, the head contractor collects liquidated damages from two or more subcontractors in respect of the same period of delay, that delay not being the fault of any of those subcontractors.
It hardly needs saying that these “I Delay, You Pay” arrangements are grossly unjust, and they are not implemented by head contractors who value their relationships with their subcontractors. But equally, there are head contractors who are Continue reading
Better now
This site is not about personal issues. But a number of people have kindly enquired about my health this year.
In March, I was affected quite badly by a virus, which might or might not have been COVID-19. Although the usual symptoms lasted only for a couple of weeks, it was followed by a post viral impact which lasted for some months.
I am fine now.
Hopefully, Continue reading
A Leading Question
Some time ago, my old friend John Marrin (now a colleague at Keating Chambers) told me that he had cited my first book – Building Contract Litigation – to the Court of Appeal as the only authority on a particular point. The court apparently enquired as to whether I was dead. I am not sure why. It seems this is no longer a necessary criterion for authority.
No such problem in the UK Supreme Court decision this week in Bresco Electrical Services Ltd (in liquidation) (Appellant) v Michael J Lonsdale (Electrical) Ltd (Respondent). In the course of its finding that Continue reading
Security, but no Master Key
By far the majority of my work, these days, is either interstate or international. In even a dispute arising under the biggest South Australian project with which I am currently dealing (no names, no pack drill, but it is a very large project) is being dealt with in New South Wales (I am pretty much the only lawyer based in South Australia involved in the dispute).
Also, the majority of my work (not all of it, of course) deals with the adjudication of disputes under what is known, in Australia, as the security of payment legislation[1]. I do not think I have dealt with any security of payment issues in the ACT. But I have been instructed, and have acted, in security of payment disputes in every other state and territory. And of course New Zealand.
It is utterly bizarre that there is a different statutory regime in every State and Territory. I have particular sympathy for the specialist Continue reading
Forecasting the Law
Professor Philip E Tetlock
As lawyers, a lot of what we do is make predictions. At its most basic level, every bit of legal advice as to what the legal position is in any case is essentially a prediction: what would the courts make of it? In practice, the prediction is more subtle. What is the likely outcome of a legal engagement, bearing in mind that the vast majority of cases settle?
A good question is “How do we make these predictions?” And more importantly, “What can we do to make such predictions more accurate?”
These questions have hit a bit of additional topicality following the recent row in the UK about Andrew Sabisky. He is a special adviser, only recently appointed by Downing Street, who is what is known as a “superforecaster”. There is more science to this expression that you might think, not least because of the work of Philip Tetlock, who is a professor at the University of Pennsylvania, in the USA. He has done a good deal of work over the years on the subject of forecasting, or predictions, and has organised, through the Good Judgment Project, a series of forecasting tournaments over the last three decades. It turns out that the majority of people, including people ordinarily regarded as experts, are pretty rubbish at forecasts, barely better than random. In the longer the range of forecasts, the poorer their accuracy. But there are a few people – the so-called superforecasters – who are really rather good at it. It is not just luck. Time and again, these superforecasters (typically the best 2% of forecasters) prove themselves to be much better than run-of-the-mill experts are predicting what is going to happen. And Professor Tetlock and his team have done a good deal of work in identifying what makes these superforecasters better than others.
The answer turns out to be quite complicated; the superforecasters have a range of talents and techniques. One is the use of Continue reading
Tabs
I am not at all sure that I like Google following me around like this.
Not that it is a huge secret that my work takes me all around Australasia. And there is nothing special abount these trips.
But, even so… suppose my work took me somewhere that my clients wouild prefer the world Continue reading
Appealing
Almost all legal systems provide for appeals in some shape or form, such that a dubious decision of a more junior judge may, subject to some constraints, be reviewed by a more senior judge. In England and Wales, for example, there is a Court of Appeal which hears appeals from other judges in the High Court. Sensibly, this is divided up into The Court of Civil Appeals and The Court Of Criminal Appeals because, obviously enough, there is no point in appeals being heard by judges who are more senior but less experienced in a particular area of the law. Indeed, the current system ensures that there is at least one construction law specialist in the Court of Civil Appeals, and at the moment that is the very competent Lord Justice Coulson.
In some Australian jurisdictions, the bizarre practice that has applied (including, until now, in South Australia) is that appeals in the Supreme Court are not heard by more senior judges, but just more judges of the same seniority, known as the Full Court[1]. Where cases are managed (sensibly enough) on the basis that specialist cases (such as construction cases) are heard in the first instance by a judge with some experience in that area (especially in construction cases), the effect of this is that appeals are heard by judges who are less qualified than the judge who heard the case in the first place. Particularly unsatisfactory is that commercial cases, including construction cases, come before judges sitting in the Full Court whose expertise lies in the area of criminal law. Unsurprisingly, this is meant that the track record for South Australia when decisions of its Full Court go to appeal to the High Court of Australia has been very poor.[2]
Accordingly, it is much to be welcomed that the Parliament of South Australia has now passed legislation setting up a new Court of Appeal in South Australia, and also to be welcomed is the announcement by the Attorney-General Vickie Chapman that Mark Livesey QC has been appointed to preside over that new Court of Appeal. As the Attorney-General says in her announcement, Mark Livesey is highly respected, and with good reason: he has an expertise in commercial cases which is not presently ubiquitous on the South Australian Supreme Court bench.
The majority of my time is spent in relation to large construction projects, and accordingly I practice far more in the courts of other States and Territories of Australia than in my home state of South Australia. I’m sorry to say that Continue reading
Wins
Keating Chambers has again won the Legal 500 Construction and Energy Set of the Year Award[1]. My colleagues in Chambers do indeed represent a formidable cadre of construction law expertise.[2]
That is good news, of course. Also good news is that I have been obtaining some good results for clients here in Australia, including a couple this week. But neither in litigation. One was a result obtained by adjudication, and another by means of mediation. It has been remarked many times that litigation is an extraordinarily Continue reading