My book Extra-Contractual Recoveries for Construction and Engineering Work was published in May 2022. As its title suggests, it is concerned with legal routes available for contractors and subcontractors to obtain payment for their work other than those arising from the express words of their contracts. Whilst focusing particularly on the various jurisdictions in the UK and Australia, it also considers the position in other common law jurisdictions around the world.
It comes in 2 hardback volumes running to some 1300 pages in all.
The book is published by London Publishing Partnership in the UK[1]; more details of the book, and how to buy it, appear on their webpage. A collection of the published reviews of the book, and some other appraisals, is here.
The preface is as follows:
Preface
I have spent a fair proportion of my professional life as a lawyer collecting payment for contractors who have undertaken construction or engineering work, but who have not been paid for it adequately or at all. Very often, the express terms of the contracts for that work have specified no means of recovery, and so it has been necessary to deploy legal arguments that are more subtle. In doing so, I have helped my clients recover very substantial sums that would not otherwise have been recovered. I have also spent much time defending against such claims.
These legal approaches are not much taught in law schools, and are not very widely understood, although they are all there be found in the authorities. They are certainly not to be found in contract documents: time after time I have seen cases where it would be possible to read the contract once, twice, or twenty times, and still have no clue at all about the lines of legal argument that have in fact enabled the contractor to get paid.
This book is written in an attempt to pull those threads together.
The first volume is a text on the law. In the second volume I have extracted some selections from the cases and legislation that seem to be to be most germane, particularly but not exclusively from England and Australia, being the two countries which have generated the most law in this area, and are also (conveniently for me) the two places in which I have been qualified. Through this book, there are some highlight references to the law of some other common law jurisdictions.
It is traditional, when acknowledging at this point the assistance of others, to emphasise that those acknowledged are not responsible for errors, those being the errors of the author. In this case, this emphasis is even more necessary than usual. At a late stage in this work, I have prevailed on some very busy people to cast an eye over the text before publication. Whilst their time has been short, their observations have been especially valuable. I sincerely thank…
The table of contracts is thus:
Table of Contents
More Detailed Table of Contents. ix
Abbreviations, Latin Tags etc. lxi
No 19th-century Codification. 80
The International Perspective. 84
Why is the Problem so Common?. 94
The Attitude of Courts and Arbitrators. 99
How to Take a Medieval Castle. 106
Chapter 2 – Implied terms. 110
Terms implied as a matter of law.. 113
Terms implied as a matter of fact. 114
Principle 1: “reasonable and equitable”. 115
Principle 2: “business efficacy”. 116
Principle 3: “goes without saying”. 117
Principle 4: “capable of clear expression”. 117
Principle 5: “not contradict any express term”. 118
No Agreed Price for Varied Work. 122
Clauses where payment is “to be agreed”. 123
Payment before Completion. 125
Prevention and Implied Terms as to Co-Operation etc. 128
Implied Terms as to Access and Other Project Management Terms 129
Implied Obligations of co-operation and good faith. 130
The Rational Exercise of Contractual Powers – The Product Star and Braganza 133
Implied term to ensure certification. 140
Implied and Collateral Agreements. 142
Chapter 3 – Intermediate Agreements, Certifications, Etc. 144
Status of Intermediate Agreements. 146
Enforcement of certificate by arbitration. 157
Enforcement of certificate by litigation. 158
Enforcement of certificate by statutory demand. 160
Enforcement of certificate by adjudication. 160
The modern place of disqualification. 168
Breakdown of certification mechanism.. 171
Presumption of Review Powers by the Court. 171
NRHA v Derek Crouch (1984). 173
Beaufort v Gilbert-Ash (1998). 175
Checklist of Possible Routes to Recovery Without a Certificate. 176
Chapter 4 – Circumvention of Contractual Provisions. 178
Control of Unfair or Unconscionable Contract Terms. 180
Penalties – Different International Approaches in Common Law and Equity 181
Circumvention of Conditions Precedent to all Payment Rights. 188
Attempts to exclude Implied Terms – “Entire Agreement” Clauses. 191
Common law and Equitable Control 194
Application to contractual progress claims only. 195
No Application to Quantum Meruit Claims. 196
Pay-when-certified clauses. 197
Circumvention of Cross Claims. 199
Statutory Control of Cross Claims. 199
Liquidated Damages Clauses. 200
Penalty Clause or Liquidated Damages?. 201
Prevention and Time at Large. 206
Examples of Time being set at large. 209
Is time set at large by a mere failure to certify?. 210
Is Time Set at Large when the Contractor fails to give Notice of Delay? 212
Contracting out of the Principle?. 216
The Consequence of Time being at Large. 222
Establishing an Entitlement to Extension of Time. 222
Cross claims for Delay against Subcontractors. 223
Circumvention of Notice Provisions. 228
The Arsenal of Circumventions. 232
Contractual Limitation Periods. 236
Intra-Contractual Approaches. 237
Presumption that Notice Provisions are not Conditions Precedent 238
Ingredients of an Effective Condition Precedent. 239
Variation of the Terms of the Contract. 245
Notice Provisions that are Penal 246
Notice Provisions as Forfeiture Clauses. 251
Breakdown of Contractual Machinery for Notices. 251
Ambiguity as to What Notice is Required. 253
Unconscionable Reliance on Contractual Terms in Australia. 256
Estoppel, Waiver and Forbearance. 257
Estoppel by representation. 258
Examples of Estoppel/Waiver in Relation to Notice Provisions. 266
1985: Rees & Kirby v Swansea City Council 266
1990: Update Constructions v Rozelle Child Care. 267
2009: BMD Major Projects Pty Ltd v Victorian Urban Development Authority 267
2012: Alstom v Yokogawa (No 7). 268
2013: Miccon Hire Pty Ltd (in liquidation) v Birla Mt Gordon Pty Ltd 269
2021: Valmont Interiors v Giorgio Armani (No 2). 269
Statutory Extension of Time. 269
Certification and Peninsula Balmain v Abigroup. 273
Examples of Treatment of Notice Clauses. 275
Breakdown of Contractual Machinery. 283
What Constitutes a Mechanism.. 284
What Constitutes a Breakdown. 285
Failure to nominate a third party. 286
Failure by a Third Party to Act at all 289
Failure by a Third Party to Act as Required. 289
Failure by a party to co-operate. 291
The Substituted Machinery. 293
Procedural Considerations. 293
The Consequence of Breakdown. 294
Unconscionability and Relief From Forfeiture. 296
Forfeiture Clauses and their Enforceability. 298
The Contrast with Party Autonomy Considerations. 299
Limits to the Jurisdiction. 299
Are Liquidated Damages Clauses Forfeiture Clauses?. 303
Are Time-Barring Notice Provisions Forfeiture Clauses?. 303
The Availability of Relief from Forfeiture. 304
Relief from Forfeiture Australia. 308
Australia: Prohibition of Unconscionable Conduct by the ACL. 310
Remedies for Unconscionable Conduct Under the ACL. 316
Chapter 5 – Damages for Breach of Contract. 317
Remoteness and foreseeability. 323
Damages for Loss of a Chance. 324
Damages for Breach of a Term as to Access etc. 327
Damages for Owner’s Breach of a Term as to Certification or Ascertainment 329
Breach of a Term as to Dispute Resolution. 333
Damages for breach of Contractual Machinery Obligation. 334
Damages for breach of Implied Terms. 335
Damages for Breach of Good Faith. 335
Interest by way of damages. 337
Contractual Exclusion of Damages Claims. 339
Exclusive Remedies Clauses. 339
Quantum of Damages Claims. 341
Hudson etc Formula Calculations. 342
Chapter 6 – Misrepresentation. 347
The Paradigm Case – Site Conditions. 351
Another Recurrent Case – Programme and Access. 355
The Bigger they Come, the Harder they Fall 357
No possible restiutio in integrum.. 359
The Misrepresentation Acts (UK and other jurisdictions). 363
The Nature of a Misrepresentation. 364
Puff, Implication and Opinion. 365
Silence and the Duty to Speak. 368
Examples of Misrepresentation. 373
Damages for Misrepresentation. 376
The “No Transaction” basis. 376
The Impact of a Volatile Market. 381
Damages in Lieu of Rescission. 382
Summary of Misrepresentation. 385
Misleading or Deceptive Conduct (Australia). 385
Abigroup v Sydney Catchment Authority. 386
Inadvertently Misleading Conduct. 389
The Non-reliance provisions. 391
Summary of the result in the case. 393
Misrepresentations as Misleading or Deceptive Conduct. 394
Intention to Mislead or Deceive. 395
Contracting Out – the “Henjo principle”. 397
Reliance, Loss and Quantum.. 398
Chapter 7 – Quantum Meruit. 403
The Modern Law – Two Types of Quantum Meruit. 407
Quantum Meruit as a Right of Restitution. 408
Contractual Quantum meruit. 409
Statutory Bars to Contractual Payment. 411
The Effect of the Bars on Quantum Meruit. 411
Recovery back by the Owner. 413
Quantum Meruit Alongside a Contract. 414
Quantum Meruit in Cases of Dramatic Change?. 416
Skipping Links in a Contractual Claim?. 416
Piercing the Corporate Veil 417
The Quantum of Quantum Meruit. 418
The Quantum of a Restitutionary Quantum Meruit. 418
The Benedetti v Sawiris Principles. 420
Adjustment for defective work or inefficient working. 423
Adjustment for tardy work. 424
The price agreed as part of an incomplete bargain. 430
The hypothetical negotiated price. 431
Subjective Devaluation in Construction Cases. 432
The Quantum of a Contractual Quantum Meruit. 433
Chapter 8 – Negligence and Other Torts. 435
Negligent Misstatement and Negligent Misrepresentation. 438
The Original Hedley Byrne Principle Extended. 442
Claims by Contractors against Professionals for Negligent Pre-Tender Information and Design 446
Claims by Contractors against Subcontractors for Negligent Work Method 450
Claims by Contractors against Professionals for Negligent or Unfair Under-Certification 451
Are certifiers subject to a duty of care to contractors to certify fairly or carefully? 453
Claims by Owners against Professionals for Negligent Over-Certification 461
Claims by Owners against Professionals for Negligent Design. 463
Can the duty be excluded?. 464
Claims against individuals. 464
Chapter 9 – Repudiation, Frustration and Other Doctrines. 470
The First Election – Acceptance of Repudiation. 479
The Second Election – Contract Rates plus Profit, or Quantum Meruit 480
Post-repudiation Quantum Meruit – Contractual or Restitutionary? 481
The Modern Commentaries. Error! Bookmark not defined.
Keating on Construction Contracts 10th Edition. Error! Bookmark not defined.
Hudson. Error! Bookmark not defined.
Bailey, Construction Law 2nd Edition. Error! Bookmark not defined.
The Consequence of Frustration. 485
Quasi-Rectification in Cases of Absurdity. 490
Chapter 10 – Statutory Recoveries. 492
Statutory Rights to Payment. 494
Housing Grants, Construction and Regeneration Act 1996. 495
The Adjudication Provision. 498
Supply of Goods and Services Act 1982. 499
Progress Payments – a Parallel Statutory Entitlement. 500
When the Statutory Right to Progress Payment Arises. 502
The Amount of the Statutory Right to Progress Payment. 503
Disapplication of Mechanisms. 504
Enforcement of Progress Payment Rights. 510
Interest pursuant to Statute. 519
Chapter 11 – Bills of Exchange, Bonds, Liens, Charges Etc. 521
Cheques as bills of exchange. 523
Cheques sent in full and final satisfaction. 525
On-demand performance guarantees. 526
Traditional Guarantees and Conditional Bonds. 528
Chapter 12 – Contracting out of Extra-Contractual Liability. 535
All-Embracing Notice Provisions. 536
Particular Exclusions of Common Law Principles. 538
Contracting Out of Liability for Misrepresentation. 542
Anti-Avoidance at Common Law.. 542
Non-reliance clauses giving rise to estoppels. 543
Anti-Avoidance Under the Acts. 546
Housing Grants, Construction and Regeneration Act 1996. 547
The Security of Payment Legislation. 548
Chapter 13 – Adjudication and Other Recovery Techniques. 559
Power to Open Up Certificates. 572
Enforcement of Adjudicator’s Decisions. 573
The East Coast Model of Adjudication. 576
Certification and Previous Adjudications. 579
Inimical and Other Void Provisions. 579
Enforcement of Adjudicators’ Determinations. 581
Chapter 14 – Procurement and Management. 590
Tender Strategies for Owners. 591
Tender Strategies for Contractors. 593
The Terms of the Contract. 594
Preserving Extra-contractual Opportunities Pre-contract. 596
Contract Administration – Following the Prescribed Path. 597
Contract Administration – Off Piste. 598
An Effective Contract – Better Late than Never?. 599
Negotiation between the parties themselves. 604
Appendix I – Extracts from Statutory Provisions. 613
Arbitration Act 1996 (UK). 617
Bills of Exchange Act 1882 (UK). 619
Builders Registration Act 1939 (WA). 620
Prohibition against unregistered builders carrying on business. 620
Building and Construction Industry Security of Payment Act 1999 (NSW) 622
Building and Construction Industry Security of Payment Act 2009 (South Australia) 626
Part 2-Rights to progress payments. 634
Part 3-Procedure for recovering progress payments. 637
Division 1-Payment claims and payment schedules. 637
Division 2-Adjudication of disputes. 640
Division 3-Claimant’s right to suspend construction work. 648
Building Work Contractors Act 1995 (SA). 651
Civil Law (Wrongs) Act 2002 (Australian Capital Territory). 652
Chapter 13 Misrepresentation. 652
court includes an arbitrator. 652
non-fraudulent misrepresentation means a misrepresentation that was not made fraudulently. 652
173 Removal of certain bars to rescission for misrepresentation 652
(1) This section applies if—… 652
(a) a person enters into a contract after a misrepresentation is made to the person; and 652
(i) the misrepresentation has become a term of the contract; 652
(ii) the contract has been performed; 652
(2) The person may rescind the contract even though 1 or more of the former bars apply. 653
(3) This section is subject to the following sections: 653
174 Damages for misrepresentation. 653
176 Exclusion clauses—misrepresentation. 654
Competition and Consumer Act 2010 (Australia). 655
Schedule 2 – The Australian Consumer Law.. 657
Part 2-1 Misleading or Deceptive Conduct. 659
Part 2-2 — Unconscionable conduct. 659
Contract and Commercial Law Act 2017 (New Zealand). 669
34 Remedy provided in contract 669
35 Damages for misrepresentation. 669
Home Building Act 1989 (New South Wales). 670
7 Form of contracts (other than small jobs). 670
10 Enforceability of contracts and other rights. 671
92 Contract work must be insured. 671
94 Effect of failure to insure residential building work. 672
Housing Grants, Construction and Regeneration Act 1996 (UK). 673
Late Payment of Commercial Debts (Interest) Act 1998. 683
Part I Statutory Interest on Qualifying Debts. 683
2 Contracts to which Act applies. 683
4 Period for which statutory interest runs. 684
5 Remission of statutory interest. Error! Bookmark not defined.
6 Rate of statutory interest. 687
Part II Contract terms relating to late payment of qualifying debts. 687
8 Circumstances where statutory interest may be ousted or varied 688
9 Meaning of “substantial remedy”. 688
10 Interpretation of Part II Error! Bookmark not defined.
Part III General and Supplementary. Error! Bookmark not defined.
11 Treatment of advance payments of the contract price. Error! Bookmark not defined.
12 Conflict of laws. Error! Bookmark not defined.
13 Assignments, etc. Error! Bookmark not defined.
14 Contract terms relating to the date for payment of the contract price 689
17 Short title, commencement and extent. Error! Bookmark not defined.
Law Reform (Frustrated Contracts) 1943 (UK). 690
1 Adjustment of rights and liabilities of parties to frustrated contracts. 690
2 Provision as to application of this Act. 691
Misrepresentation Act 1967 (UK). 693
Removal of certain bars to rescission for innocent misrepresentation 693
Damages for misrepresentation. 693
Avoidance of provision excluding liability for misrepresentation 694
Short title, commencement and extent. 694
Misrepresentation Act 1972 (South Australia). 695
Part 2—Criminal sanctions against misrepresentation in certain commercial transactions 695
4—Misrepresentation made in the course of a trade or business 695
Part 3—Expansion of remedies available at common law and in equity for misrepresentation 697
6—Removal of certain bars to rescission. 697
7—Damages for misrepresentation. 697
Sale of Goods Act 1979 (UK). 700
The Scheme for Construction Contracts. 701
Notice of Intention to seek Adjudication. 701
Powers of the adjudicator. 702
Entitlement to and amount of stage payments. 703
Notice of intention to pay less than the notified sum.. 706
Prohibition of conditional payment provisions. 706
Senior Courts Act 1981 (UK). 708
35A Power of High Court to award interest on debts and damages. 708
(a) in the case of any sum paid before judgment, the date of the payment; and 708
(b) in the case of the sum for which judgment is given, the date of the judgment. 708
(2) In relation to a judgment given for damages for personal injuries or death… 708
(3) Subject to rules of court, where—… 708
Supply of Goods and Services Act 1982 (UK). 711
Statute of Frauds 1677 (UK). 712
Reasons for passing this Act. 712
Trade Practices Act 1974 (Australia). 713
Section 52 – Misleading or deceptive conduct. 713
Section 82 – Actions for damages. 714
Queensland Building and Construction Commission Act 1991. 716
42 Unlawful carrying out of building work. 716
Unfair Contract Terms Act 1977. 717
3 Liability arising in contract. 717
11 The “reasonableness” test. 717
Appendix II – Extracts from Cases. 720
Abigroup v Sydney Catchment Authority. 731
The First Instance Decision to adopt the Referee’s Report; [2003] NSWSC 634 731
Adoption Overturned on Appeal; [2004] NSWCA 270. 736
The Slip Rule Correction; [2004] NSWCA 459. 752
The Substantive Judgment on Liability; [2005] NSWSC 662. 753
Conclusion on construction of representation. 756
Conclusion on the first issue. 756
The “correct” representation. 764
No contract or alternative contract. 765
Alternative analysis: no contract case. 766
The Appeal from the substantive judgment; [2006] NSWCA 282. 772
The law relating to causation. 775
The Damages Judgment; [2007] NSWSC 220. 781
Conclusion on the “what if” question. 783
The Application for Special Leave; [2007] HCATrans 146. 784
4 Interpretation of the EC&I contract: General Principles. 787
10.2 The implied duty to co-operate. 790
10.3 The implied obligation not to prevent or hinder YDRML’s performance of the EC&I contract 791
11.1 The nature of the project. 795
Alstom Signalling v Jarvis Facilities. 802
Anderson v Tuapeka County Council 808
Andrews v Australia and New Zealand Banking Group Limited. 810
French CJ, Gummow, Crennan, Kiefel And Bell JJ. 810
Madala J, Nkabinde J, Skweyiya J, Van der Westhuizen J and Yacoob J 820
Baulderstone Hornibrook v Qantas Airways. 826
Beaufort Developments (NI) v Gilbert-Ash NI 829
Lord Clarke (with whom Lord Kerr and Lord Wilson agree). 833
Market value and subjective devaluation. 834
Market value and subjective revaluation. 838
The legal principles – summary. 838
The measure of restitution where a person has been unjustly enriched 839
The approach of the Court of Appeal 840
Bernhard’s Rugby Landscapes v Stockley Park. 844
BG Checo v British Columbia Hydro and Power. 847
Extracts from the original finding of Cohen J of fraudulent misrepresentation: 849
Extracts from the Judgment of the British Columbia Court of Appeal 850
Hinkson J (Lambert, Toy and Cumming JJ agreeing). 850
The Meaning of “Clearing”. 851
Damages for Negligent Misrepresentation. 851
Extracts from the Judgment of the Supreme Court of Canada. 852
La Forest, McLachlin, L’Heureux-Dubé and Gonthier JJ. 852
BMD Major Projects v Victorian Urban Development Authority. 857
The First Instance decision. 860
Braganza v BP Shipping Ltd. 866
Lady Hale (with whom Lord Kerr agreed). 866
Lord Hodge: (with whom Lord Kerr agrees). 869
Lord Neuberger: (with whom Lord Wilson agrees) (dissenting). 870
Bremer Handelsgesellschaft v Vanden Avenne. 871
Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd. 876
Extracts from the Judgments. 877
Uncertainty as to Fixing of Rental 880
Brighton Australia v Multiplex Constructions. 888
British Steel v Cleveland Bridge. 892
BSkyB v HP Enterprise Services. 893
D: The Law Of Deceit And Negligent Misrepresentation. 894
The making of a representation. 896
The falsity of the representation. 897
Knowledge or recklessness as to the truth. 897
Intention that the other party should act upon the representation 899
Detrimental reliance of representation. 899
The law of negligent misstatement or misrepresentation. 900
E: Issues of Construction of Documents. 911
The Entire Agreement clause. 911
F: Claims For Negligent Misstatement Or Misrepresentation. 912
Claims under the Misrepresentation Act 1967. 913
Misrepresentation as to Time. 913
Q: OVERALL SUMMARY AND CONCLUSION.. 915
Cavendish v El Makdessi, ParkingEye Ltd v Beavis. 918
Lords Neuberger and Sumption (Lord Carnwath agreeing). 918
The law in relation to penalties. 918
CFW Architects (A Firm) v Cowlin Construction Ltd. 936
Greer LJ (Greene LJ and Mackinnon J agreeing). 939
City Inn v Shepherd Construction Ltd. 943
The penalty clause point (answer 8(i)). 945
(b) Whether clause 13.8.5 imposes a penalty. 947
Clough Engineering Ltd v Oil and Natural Gas Corporation. 948
Constructional principles relating to performance bank guarantees 948
Commercial Management v Mitchell Design. 950
Cook’s Construction v SFS 007.298.633. 953
Costain Civil Engineering and Tarmac v Zanen Dredging & Contracting 957
Courtney & Fairbairn Ltd v Tolaini Brothers (Hotels) Ltd. 959
Davis Contractors v Fareham Urban DC. 964
Decor Ceilings v Cox Constructions (No 2). 966
Drake and Scull v Higgs and Hill 973
His Honour Judge Fox-Andrews QC. 973
Dunlop Pneumatic Tyre Co Ltd v. New Garage and Motor Co Ltd. 975
Durabella Limited v J. Jarvis & Sons Limited. 978
DVP Engineering Pty Ltd v Concrete Constructions Group Ltd. 981
The First Instance Decision; Gillard J. 981
Edgeworth Construction v N.D. Lea. 986
Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ. 987
Education 4 Ayrshire Ltd v South Ayrshire Council 989
The Notice provisions of the contract. 990
Electrix v Fletcher Construction (No 2). 998
Approach to the amount deserved. 1001
Essex County Council v UBB Waste (Essex) Ltd. 1004
Etlis & Anor v New Age Constructions (NSW) Pty Ltd & Anor. 1017
F & G Sykes (Wessex) Limited v Fine Fare Limited. 1024
First Tower Trustees Ltd v CDS (Superstores International) Ltd. 1027
Introduction and background. 1027
Does section 3 apply to clauses 5.8 and 12.1?. 1028
Fitzroy Robinson Ltd v Mentmore Towers Ltd. 1033
Floods of Queensferry Ltd v Shand Construction Ltd. 1040
The Pile Bracing Issue-Decision. 1047
Gaymark Investments v Walter Construction Group. 1053
GEC Marconi v BHP Information Technology. 1056
Gilbert-Ash v Modern Engineering. 1058
Lord Morris of Borth-Y-Gest. 1060
Some introductory considerations. 1062
Hawl-Mac v Campbell River. 1069
Hurley v McDonald’s Australia Ltd. 1087
The Full Court (Heery, Drummond and Emmett JJ). 1087
Iezzi Constructions v Watkins Pacific. 1089
Ipstar Australia v APS Satellite. 1093
J F Finnegan v Sheffield City Council 1095
J Jarvis and Sons Ltd v Castle Wharf Developments Ltd and others. 1101
(1) Gleeds’s Duty of Care. 1101
John Barker v London Portman Hotel 1103
Claim for £20,000 under the acceleration agreement. 1109
John Goss Projects v Leighton Construction. 1110
Kailash Nath Associates v Delhi Development Authority. 1112
Koch Hightex GmbH v New Millennium Experience Company Limited 1113
Lords Macnaghten, Davey, Robertson and Lindley. 1118
Lusty v Finsbury Securities. 1119
Balcombe LJ, Sir David Croom-Johnson. 1119
Mann v Paterson Constructions Pty Ltd. 1121
Kiefel CJ, Bell and Keane JJ. 1123
Category (2): work for which the Builder has accrued a contractual right to payment 1126
Nettle, Gordon and Edelman JJ. 1126
Minerology v Sino Iron (No 6). 1131
Minister for Commerce v Contrax Plumbing and Ors. 1134
Morrison-Knudsen v Commonwealth of Australia. 1136
Gibbs J (Owen and Walsh JJ agreeing). 1138
Lachhani v. Destination Canada (UK) Limited. 1141
Laserbore Ltd v Morrison Biggs Wall Ltd. 1143
His Honour Judge Bowsher QC. 1143
Lim Chin San Contractors Pte Ltd v LW Infrastructure Pte Ltd. 1152
London Borough of Merton v Stanley Hugh Leach Ltd. 1154
Mamidoil-Jetoil Greek Petroleum Company SA v Okta Crude Oil Refinery AD 1160
Marks and Spencer v BNP Paribas. 1165
Massford (HK) Ltd v Wah Seng General Contractors Ltd. 1169
Merit Process Engineering Ltd v Balfour Beatty Engineering Services (HY) Ltd 1173
Melville Dundas Ltd & Ors v. George Wimpey UK Ltd & Ors. 1175
Miccon Hire Pty Ltd (in liquidation) v Birla Mt Gordon Pty Ltd. 1178
Mid Essex Hospital Services NHS Trust v Compass Group UK and Ireland Ltd (t/a Medirest) 1182
Midland Expressway v Carillion (No 2). 1189
Morris v Highland Spring Ltd. 1193
Multiplex Constructions (UK) Ltd v Honeywell Control Systems Ltd (No. 2) 1198
North Midland Building Ltd v Cyden Homes Ltd. 1203
5.3 The Prevention Principle. 1204
Obrascon v AG for Gibraltar. 1206
Opron Construction Co Ltd v Alberta. 1211
The Design Changes Between Stage I and Stage II 1216
Ottawa Northern and Western Railway Co. v Dominion Bridge Co. 1230
Paciocco v Australia and New Zealand Banking Group Limited. 1241
Pagnan S.p.A. v. Feed Products Ltd. 1247
Panamena – Frederick Leyland & Co Ltd v Compania Europea Navegacion Limitada 1248
Peak Construction (Liverpool) Limited v McKinney Foundations Limited 1282
Peninsula Balmain v Abigroup. 1286
Perini Corporation v Commonwealth of Australia. 1294
Photo Production Ltd v Securicor Ltd. 1297
Plaza West Pty Ltd v Simon’s Earthworks (NSW) Pty Ltd & Anor. 1300
Probuild Constructions (Aust) Pty Ltd v DDI Group Pty Ltd. 1302
The prevention principle. 1302
R & D Construction Group Ltd v. Hallam Land Management Ltd. 1309
Renard Constructions (ME) Pty Ltd v Minister for Public Works. 1311
Riyad Bank & Ors v Ahli United Bank (UK) Plc. 1313
Gleeson CJH, Gummow, Kirby, Hayne, Callinan And Heydon JJ. 1316
Royscot Trust v Rogerson. 1318
Ruttle Plant Hire v Sec of State EFRA.. 1321
S Pearson & Son Ltd v Dublin Corporation. 1322
Sempra Metals v Inland Revenue. 1329
Lord Nicholls of Birkenhead. 1330
Shui On Construction Company v Shui Kay Company Ltd. 1333
Smith v Land and House Property Corporation. 1335
Smith and Smith Glass v Winstone Architectural Cladding Systems. 1336
SMK Cabinets v Hili Modern Electrics Pty Ltd. 1340
Maxwell P, Kellam JA and Whelan AJA.. 1345
Availability of a quantum meruit claim.. 1345
- The right to claim quantum meruit. 1346
- Is the contract price a ceiling?. 1347
- Is the contract price the best evidence of value?. 1347
Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency 1351
Chan Sek Keong CJ (delivering the grounds of decision of the court): 1351
(3) Application to the present case. 1356
Squibb Group Ltd v London Pleasure Gardens Ltd & Anor. 1358
Steria Ltd v Sigma Wireless Communications Ltd. 1360
Is the notice requirement a condition precedent?. 1360
Lord Morris of Borth-y-Gest. 1363
Temloc v Errill Properties. 1365
Tersons Ltd v Stevenage Development Corporation. 1367
Thorn v. The Mayor and Commonality of London. 1371
Todd Pohokura Limited v Shell Exploration NZ Limited. 1372
Obligation to act honestly, and to have regard to interests of other venturers? 1374
Trollope & Colls Limited v North West Metropolitan Regional Hospital Board 1376
Uber Builders and Developers Pty Ltd v MIFA Pty Ltd. 1378
Update Constructions v Rozelle Child Care. 1381
The claim for contribution or indemnity. 1387
Debelle J (dissenting on contribution). 1388
Walton Construction v Illawarra Hotel 1390
Wright J at first instance: 1394
On appeal, per Vaughan Williams LJ: 1395
Wessex Regional Health Authority v HLM Design. 1397
His Honour Judge Fox-Andrews QC. 1397
William Sindall v. Cambridgeshire CC. 1412
Yam Seng v International Trade Corporation. 1423
Yew Sang Hong v Hong Kong Housing Authority. 1427
The Home Building Act Issue. 1433
[1] I chose them because I was impressed by what they have done with Julian Bailey’s excellent 3 volume book Construction Law, well-finished and now on the market at a reasonable price (unlike a number of legal titles).