The Supreme Court of NSW has revisited the UK’s Society of Construction Law Delay and Disruption Protocol. Substantively and procedurally, his Honour Mr Justice Hammerschlag’s decision in White Constructions Pty Ltd v PBS Holdings Pty Ltd [2019] NSWSC 1166 [1] warrants attention. The fact that a method appears in the Protocol does not give it […]
Adjudication through the Looking Glass: The Court reflects on mirror-imaged SOPA challenges
Icon Co (NSW) Pty Ltd v AMA Glass Facades Pty Ltd [2019] NSWSC 250 Sydney’s Opal Tower continues to attract attention. This time, the issue is an unusual security of payment (SOPA) tug-of-war between the builder and its glazing subcontractor, with the Supreme Court of NSW called upon to review successive SOPA determinations which had […]
The Seymour Whyte decision – is it time for a national SOPA?
Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (In liquidation)[2019] NSWCA 11 The NSW Court of Appeal has decided that SOPA enforcement is available to claimants in liquidation in NSW, contrary to its equivalent Court in Victoria. [1] The same statutory words now have consequences that differ north and south of the […]
Mere mechanics? Performance security calls are not so simple
Santos Limited v BNP Paribas [2018] QSC 105 Performance securities issued by banks are commonly deployed on construction projects. They are said to be “as good as cash”. If Santos’ recent experience in the Queensland Supreme Court is a guide, that’s not universally the case. The autonomy principle – that the obligations of the bank […]
“A national industry requires a national approach”
“A national industry requires a national approach” … So says Mr John Murray AM, author of the Commonwealth Review of Security of Payment Laws released this week. Mr Murray’s report comprehensively evaluates cashflow measures, adjudication and protection of payment. Some of the recommendations, if adopted, will create significant change the way that construction contracts operate, […]
The ‘ipso facto’ playbook: It’s time that you update the script
Insolvency reforms and their impact on your future contracts The playbook is familiar to many in construction, development and procurement: Performance drops off, phone calls not returned, subcontractors and suppliers start to walk, voluntary administrators are appointed. A quick call on the performance security, exercise your termination rights, step in and “it’s on with the […]
Probuild: High Court closes the 14-year adjudication debate
Probuild Constructions (Aust) p/l v Shade Systems p/l [2018] HCA 4 Thirteen judges have proceeded on the basis that Shade Systems’ adjudication determination was wrong at law. Why then have twelve of their Honours required the builder to pay it? Probuild subcontracted Shade Systems for louvres on an apartment development in Chatswood. Systems served Probuild with a […]
High Court: Blue sky for adjudication, retention looks cloudy
Maxcon Constructions Pty Ltd v Michael Christopher Vadasz (trading as Australasian Piling Company) & Ors [2018] HCA 5 The High Court of Australia has cast doubt over the efficacy of cash retention as a construction subcontract security device. An appeal concerning a security of payment adjudication required the Court to consider whether the subcontract’s retention provisions […]
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