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Construction and Infrastructure

Security of payment

Acting on large infrastructure related adjudications under Security of Payment legislation ranging from A$1 million to $80 million in Queensland, New South Wales, Victoria, South Australia, Northern Territory, and Western Australia.

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Brisbane

Andrew Kelly

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Inadvertence: A failure to obtain a building work contractor's licence in South Australia

In Allied Grain Systems P/L v Inheritance Capital Asset Management P/L [2023], Thomson Geer successfully acted for Allied Grain Systems, clarifying what is required to establish inadvertence for the purposes of obtaining an exception to licensing requirements under the Building Work Contractors Act 1995 (SA)

From rocks to riches: Unravelling the mining exclusion and notice requirements to pull security under the QBCC Act

A recent decision by the Supreme Court of Queensland has made clear the mining exclusion in the Queensland Building and Construction Commission Act relieves a party to a contract for "construction work in mining" from complying with requirements under the Act.

A win for builders: Court further refines scope of duty of care owed by builders to subsequent purchasers

A recent decision by the Queensland Court of Appeal has confirmed that there are very limited circumstances in which a builder will owe a duty of care to subsequent purchasers of property they built.

Converting security in Western Australia: the 5-business day warning

As a part of the Western Australian Government's reforms to the Building and Construction Industry (Security of Payment) Act 2021 (WA), a notice requirement was introduced regarding a party having recourse to security under the construction contract.

Court of Appeal holds payment schedule must answer each distinct and substantial component of payment claim

The NSW Court of Appeal has upheld a decision involving the validity of payment schedules under the Building and Construction Industry Security of Payment Act 1999 (NSW).

Festive season payment claims

Christmas is just around the corner, and as we approach the end of the year, it is important to remember the timing requirements for payment claims and payment schedules under the relevant security of payment legislation for each State and Territory.

Time will tell, or will it? 'Unfair' time bars in Western Australia's new security of payment model

While the time bar provisions in Western Australia's new security of payment provisions were well-intentioned, their introduction has made the law more complex.

Payment schedules should identify all amounts in dispute and why

What makes a valid payment schedule for the purposes of the Building and Construction Industry Security of Payment Act (NSW) (the SOP Act) has been clarified in a recent NSW Supreme Court case where Thomson Geer successfully acted for a Contractor making a payment claim.

Conditional certificates of practical completion are unlikely to be valid

A recent New South Wales Supreme Court decision has found that a practical completion certificate had no contractual effect for failing to comply with the contractual requirements governing the form of that certificate.

Consequences of poor construction contract drafting

A Supreme Court decision reinforces the need for care and precision when entering into a contract, for parties to understand the scope and application of exclusion of liability clauses and to ensure compliance with contractual notice requirements throughout a contract's duration.

Is a letter of demand a payment claim?

A recent New South Wales Supreme Court decision has found that a letter of demand could constitute a valid payment claim for the purposes of the Building and Construction Industry Security of Payment Act 1999 (NSW).

Misleading and deceptive conduct trumps claimant's entitlement to payment

A recent decision confirms that misleading and deceptive conduct can be successfully advanced as a defence to an application for summary judgment made under the New South Wales Building and Construction Industry Security of Payment Act 1999.

Uncertain construction contract leads to void adjudication determination

Thomson Geer's construction and infrastructure team has successfully acted for Queensland construction company GCB Constructions Pty Ltd (GCB) in a Supreme Court of Queensland proceeding involving an application to have an adjudicator's decision purportedly made under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (BIF Act) declared void.

Changes to the Project Trust Account framework in 2023

With 2023 comes yet another extension to the Project Trust Account (PTA) commencement dates in Queensland.

Don’t forget to give your reasons when challenging a payment claim – or risk the consequences

The importance of providing reasons when challenging a payment claim has been reinforced by a recent Supreme Court of Queensland decision.

A tale of two payment schedules

The Supreme Court of Queensland decision in Kangaroo Point Developments MP Property Pty Ltd v RHG Construction Fitout and Maintenance Pty Ltd & Ors [2021] QSC 30

No piling on additional contracts: A payment claim can only be issued for work performed under one contract

Thomson Geer’s Brisbane Construction Team recently acted for the successful party in a Supreme Court of Queensland proceeding which confirmed that a payment claim containing claims under two separate contracts will be void under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (BIF Act).

The mean of ‘due and payable’ for the purpose of recourse to performance security

A recent decision in the Supreme Court of Western Australia has continued the trend of the Courts in applying the generally accepted meaning of ‘due and payable’ contained in construction contracts.

The new Design and Building Practitioners Regulation 2021 (NSW) and potential pitfalls for contractors

In our construction law blog last year, we alerted you to the Design and Building Practitioners Act 2020 (NSW) (‘the DBPA‘), which subjects New South Wales contractors, designers and engineers to a new regulatory framework that introduced the concept of a ‘regulated design’ as well as a retrospective duty of care.

A tale of two payment schedules (continued)

In March this year we reported on the Court’s approach to dealing with the situation where there are two potential payment schedules in play under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (BIF Act).

Important changes to Western Australia’s construction industry security of payment regime are imminent

New security of payment legislation will affect some practices of principals, contractors and subcontractors that have become market norms in the construction sector.

The right to fix defective works

Construction contracts commonly provide that a builder is to rectify defects and include a defects liability period for the benefit of the builder.

Recent Order made under the Design and Building Practitioners Act: Are easements now required for ground anchors under a neighbouring property in NSW?

On 1 July 2021, the Particulars for Regulated Design Order 2021 came into effect in NSW. This requires regulated designs for ground anchors to include evidence of a registered easement for the ground anchors.

NSW Government provides practical relief with recent amendments to the Design and Building Practitioners legislation

Changes to the New South Wales Design and Building Practitioners Act (the DBPA) have come into effect, removing non-structural commercial and retail fit-outs from the compliance requirements for mixed-use residential developments and extending the transitional period for staged development projects.

Back with a vengeance … Queensland’s head contractor exemption lives to see another day (for now)

Queensland’s head contractor licensing exemption is likely to remain after plans to abolish it appear to have been scrapped.

Revised ground anchor provisions in NSW: return of simple contracts for ground anchors under a neighbouring property

Developers and contractors in residential development can return to relying on simple contracts with neighbours for rights to use their land for temporary ground (or rock) anchors after a new design order came into effect in New South Wales.

Landmark judgement clarifies 10-year limitation period for building actions

Thomson Geer has won a landmark case clarifying for the Victorian building industry when the 10-year limitation period for commencing a building action takes effect.

Impact of Queen Elizabeth II National Day of Mourning on construction programs and delay entitlement

With the recent announcement by Prime Minister Anthony Albanese that Australia will have a one-off public holiday on 22 September 2022 to mourn the death of Her Majesty, Queen Elizabeth II, parties to construction contracts ought to turn their mind to the effect on their programs.

Festive season payment claims

Christmas is just around the corner, and as we approach the end of the year, it is important to remember the timing requirements for payment claims and payment schedules under the relevant security of payment (SOP) legislation for each State and Territory.

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