Project Management Papers

Full List sorted by Topic: - Adjudication - Arbitration - Contract & Tort -

Adjudication

Broad Construction v Vadasz
This case illustrates that where a report (or other evidence) is relied upon in an adjudication response, an adjudicator may refuse to consider the report if it was not properly included in the Payment Schedule, consequently the failure to explain the full basis of negating the payment claim can be fatal to a defence. [View Casewatch PDF]

Shorten v David Hurst Constructions
The New South Wales Supreme Court examined the impact of the lack of proof available for the proper service of an adjudication application and applied an ancient principal that no person could profit by his own wrong. This case illustrates the need for careful review of documents prior to service and also the need to ensure that claims and application are properly served on all parties. [View Casewatch PDF]

Katherine v The CCD Group
The NSW Supreme Court has determined that in some instances the Courts may amend a portion of a determination under the Building and Construction Industry Security of payments Act where an adjudicator has determined an amount of interest under a construction contact which the Court may construe as a penalty. [View Casewatch PDF]

Berem v Shaya Constructions
This case illustrates that the misdescription of parties in a payment claim may invalidate an adjudication based on such a claim as no relevant construction contract exists to find jurisdiction for the Adjudicator. [View Casewatch PDF]

Bezzina v Deemah
This case illustrates that careful submissions as to jurisdiction are necessary to avoid challenge in higher Courts and may have immediate application to contract managers and the way in which they administer contracts, in order to avoid losing claims which may otherwise succeed. [View Casewatch PDF]

Rojo Building Pty Limited v Jillcris Pty Limited
This case illustrates that a careful election between alternative elections under the Security of Payment legislation avoids an unfortunate loss of advantage to the Claimant. This judgement may have immediate application to contract managers and the way in which they administer contracts, in order to avoid losing rights which may otherwise exist under the Security of Payments legislation. [View Casewatch PDF]

Tsoukatos v Mustafa
This case illustrates that the Courts will examine and weigh up conflicting evidence in circumstances where service is challenged, and that each respective party must be able to sufficiently discharge their burden of proof to establish that service was either effectively carried out or not received at all. This judgement may have immediate application to parties to Security of payment disputes where personal service is not practicable and there is potential for a dispute as to the effectiveness of service. [View Casewatch PDF]

Halkat Electrical v Holmwood Holdings
The Court of Appeal of New South Wales recently held that an Adjudicator who makes a determination as to the value of a Payment Claim on inappropriate grounds does not perform their proper function under the Act. This case provides guidance to Adjudicators and parties in all states on the preparation of claims [View Casewatch PDF]

Cant Contracting v Casella.
The Supreme Court of Queensland recently held that contractors cannot rely on the Building and Construction Industry Payment Act 2004 to recover payment for work carried out without a licence in breach of the Queensland Building Services Authority Act 1991. [View Casewatch PDF].

Inten Constructions v Refine.
The Supreme Court of New South Wales recently confirmed that the requirement for natural justice under the Act must be considered in light of the framework of the SOP Act, which does not give parties an unlimited opportunity to make submissions. [View Casewatch PDF].

Queensland v Epoca Constructions.
The Supreme Court of Queensland recently confirmed that judicial review of Adjudicator’s decisions is available in Queensland, but in reviewing a decision, the Court must be satisfied that there is a clear error of law before it will set aside all or part of the determination. [View Casewatch PDF]

Abigroup v Riverstreet.
The Supreme Court of Victoria recently confirmed its position that recovery of the claimed amount as a debt due pursuant to section 16(2)(a) of the Act is only possible where there is no real question to be tried. [View Casewatch PDF]

JBK Engineering v Brick & Block.
The Supreme Court of New South Wales held recently that the adjudicator’s task is to resolve the issues between the parties, and found that the Adjudicator is only required to consider an application based on the arguments raised by the parties, and the reasons given by the Adjudicator demonstrated that he had considered the progress claims and whether there was a reason for not allowing the claim. [View Casewatch PDF]

Acclaim v Loewenthal.
The New South Wales District Court recently held that if at the time of entering into the contract for residential building work it is the intention of the owner to reside in the premises and this is made clear to the contractor, then the Act will not apply to the construction contract. [View Casewatch PDF]

Falgat v Equity (Appeal).
Given the strict timetable of the Act, parties should ensure that Payment Claims and Payment Schedules are served carefully and in accordance with the Act and other statutes to avoid later disputes. Delivering documents to a companies registered officer remains the most reliable way to ensure correct service. [View Casewatch PDF]

Bitannia v Parkline.
The Supreme Court recently held that contractors should ensure that Payment Claims, and their service, are carefully executed and are not misleading to ensure that their rights to judgment under the Act are not affected. [View Casewatch PDF]

Baulderstone v Queensland Investment Corp.
The Court will consider whether a document is a Payment Schedule by reference to the provisions of the Act. In doing so, the Court tends to avoid being overly technical, but care should still be taken when preparing a Payment Schedule to ensure that no doubt is left as to whether the document is a Payment Schedule under the Act and that the requirements of the Act are met. [View Casewatch PDF]

Fifty Property v O'Mara.
The question of whether a construction contract exists between the parties to is a jurisdictional fact that is subject to review by the Courts and parties should ensure that any contract is clearly reduced to writing and executed to avoid later disputes. [View Casewatch PDF]

Wooding v Eastoe.
The Supreme Court recently held that it is for an Adjudicator to decide who the parties to a construction contract are, and an error in determining this question will not invalidate an Adjudication Determination. [View Casewatch PDF]

Procorp Civil Pty Ltd v Napoli Excavations and Contracting Pty Ltd & Ors.
The time for raising issues with a Payment Claim is in a Payment Schedule. Issues raised after this time may not receive consideration by an Adjudicator, much less by the courts, and do not require the Adjudicator to investigate by inviting further submissions. [View Casewatch PDF]

Brookhollow Pty Ltd v R&R Consultants Pty Ltd & Anor
An Adjudicator should not to 'Rubber Stamp' Payment Claims" but should consider all issues raised by the parties in an Adjudication, as a failure to do so on a major issue may indicate a lack of good faith, voiding the determination. [View Casewatch PDF]

De Martin & Gasparini v State Concrete
The Supreme Court recently confirmed that an Adjudicator who wants to decide a matter on which the parties agree on some other basis must give the parties notice and an opportunity to respond to the point, or the determination will be declared void. [View Casewatch PDF]

Pacific General v Soliman
The NSW Supreme Court held that the absence of relevant material from Pacific does not entitle the Adjudicator to simply award the amount of the claim without addressing its merits, which as a minimum involve determining whether the construction work identified in the Payment Claim has been carried out, and what is its value. To simply rubber stamp the Claimant’s Payment Claim may result in the Adjudication Determination being held void. [View Casewatch PDF]

Holmwood v Halkat
This case stands for the proposition that an Adjudicator must act honestly, conscientiously and not capriciously, in determining an Adjudication Application. Further, an Adjudicator’s failure to evaluate a Payment Claim in the context of a payment Schedule and the simple acceptance of only one party’s assessment may demonstrate a failure to act in good faith. [View Casewatch PDF]

Energy Australia v Downer
This case stands for the proposition that an interlocutory Adjudication Determination may not be valid if the claims contained within the Payment Claim and Adjudication Application are of a different nature. Further, notwithstanding the issue as to validity of an Adjudication Determination, a Court may not interfere with the payment process under the Act. [View Casewatch PDF]

Glen Eight v Home Building
This case stands for the proposition that an interlocutory injunction is likely to be granted where an Adjudicator determines an Adjudication Application in a manner which is not satisfactory or not as he/she indicated is the proper way, his decision may be open to attack. [View Casewatch PDF]

Air Dynamics v Durham
Where an Adjudication Certificate has been filed as a judgment debt and paid, the Courts are unlikely to entertain any further action that an Adjudication Determination is void, as the purpose of the Act will be exhausted. [View Casewatch PDF]

Energetech v Sides
This case stands for the proposition that an Adjudicator is entitled to finally determine a dispute as to whether a stage has been reached in a contract for staged payments. [View Casewatch PDF]

Lucas v City of Sydney
This case confirms the proposition that the Act is a strict liability scheme and that cross-claims for estoppel and misleading and deceptive conduct, in the context of summary judgment, are outside the scheme of the Act and unlikely to be entertained by the Courts. [View Casewatch PDF]

Timwin v Façade
In determining an Adjudication Application, it is wise for an Adjudicator to consider all submissions, even in the alternative, because to not do so may leave an Adjudicator open to the decision that he or she did not exercise his or her powers in good faith. [View Casewatch PDF]

Taylor v Brick Dept
When a claimant is not insolvent, but may become insolvent due to non payment of an adjudicated amount, the Respondent will not be permitted an order of stay of execution of a judgment debt. [View Casewatch PDF]

Taylor v Brick
A payment claim sent by facsimile, whether within or outside normal office hours on a business day, is regarded as being served on that day (NSW only – Victoria has different requirements). [View Casewatch PDF]

Facade v Timwin
A stay to maintain a payment into court after a decision that an Adjudicator’s Determination is void, is unlikely to be granted merely by reason of the existence of a reasonable appeal. [View Casewatch PDF]

Cooper v Veghelyi (Appeal)
This case confirms that a respondent is required to pay into the court as security the unpaid portion of an award pending the final determination of those proceedings. Further, this case highlights the interim nature of the Act and that pursuant to section 32 of the Act a respondent is entitled to an appropriate credit for the Adjudicated Amount under the Contract. [View Casewatch PDF]

Tolfab v Tie
A short form Payment Schedule which provides a clear indication of the value of the work may be sufficient to allow a Respondent to rely on reasons in its Adjudication Response if it puts the Claimant on proper notice. Further, an Adjudicator is wise to consider submissions in the alternative where practicable. [View Casewatch PDF]

Minister v Contrax - Appeal
Ay provision in a construction contract that diminishes, displaces or delays a contractor’s entitlement to work may be void (and if void presumably void for all purposes). Provisions subject to section 34 includes those relating to the determination of reference dates and the calculation of the amount of progress payments even though the Act expressly refers to such provisions. [View Casewtch PDF]

Falgat v Masterform
An Adjudication Determination is conclusive and res judicata is applicable as the Adjudicator is akin to a judicial tribunal but that a genuine dispute for the purposes of setting aside a statutory demand can still exist. [View Casewtch PDF]

Reiby v Winterton
An Adjudication Determination is void if there is an apprehended bias on the part of the Adjudicator and very high standards are expected by the Court. The more concerning aspect is that a disgruntled party to a determination under the Act may have an escape mechanism and avoid the effect of a determination, in the event that the determination is unfavourable, by making a request for a different Adjudicator on the grounds of bias.. [View Casewtch PDF]

Co-ordinated v Climatech
Claims for delay damages can be the subject of Payment Claims under the Act, if provided for by the terms of the particular Contract between the parties but care still should be exercised when preparing the Payment Claim. [View Casewtch PDF]

Schokman v Xception
To apply to adjudication when the Respondent fails to provide a payment schedule, the Claimant must comply strictly with the statutory timeframe. [View Casewtch PDF]

Coordinated Constructions Co v J M Hargreaves & Ors
An Adjudicators Determination is not void if it includes an incorrect amount in the Adjudicated Amount [View Casewtch PDF]

TQM v Dasein
Care should be taken to ensure the Adjudication Application is actually received [View Casewtch PDF]

Review of the BCISOP Act 2004
Review of the Act in NSW - for amendments due in 2005 [View Casewatch PDF]

Estate Property Holdings v Barclay Mowlem Construction
Some work included in a payment claim must have been performed in the last 12 months [View Casewatch PDF]

Brodyn v Davenport (Appeal)
Judicial review is not available to parties seeking relief from an erroneous decision by an Adjudicator, except in very limited circumstances [View Casewatch PDF]

Digital v QX Australia
An interlocutory injunction may be granted where there is a dispute to the validity or service of a payment claim [View Casewatch PDF]

Holdmark Developers v GJ Formwork
Only one final payment claim can be made at (or within 12 months of) the termination of the contract or cessation of works [View Casewatch PDF]

Minister for Commerce v Contrax Plumbing & Ors
A provision in a contract that delays or diminishes a contractors entitlement to payment under the Act will be void [View Casewatch PDF]

Barclay Mowlem v Tesrol Walsh Bay
To 'provide' a payment schedule means the process of delivery must be initiated rather then actual receipt by the Claimant [View Casewatch PDF]

Isis Projects v Clarence Street
The sufficiency of a payment claim depends on the conduct of the parties and the history of the contract. The Court appears to be adopting a liberal approach [View Casewatch PDF]

Hawkins Construction v Macs Industrial Pipework
The Act applies to subcontracts entered into after the commencement date [View Casewatch PDF]

Baulderstone Hornibrook Pty Ltd v HBO DC Pty Ltd.
Summary judgement provisions - various states [View Casewatch PDF]

Bourke Road Pty Ltd v Boxster Constructions Pty Ltd
A creditors statutory demand for a debt due must not be submitted before the expiry of the prescribed time for payment [View Casewatch PDF]

John Holland v Cardno MBK
The Adjudication Application should not contain a new contractual basis or new supporting documentation that was not included in the Payment Claim [View Casewatch PDF]

Transgrid v Walter Construction Group 2004
The Adjudicator is not bound by the Superintendents Certification [View Casewatch PDF]

Kembla Coal Coke v Select Civil & Ors
A claim for preparation costs, extension of time, delay and/or disruption costs may be included in a payment claim [View Casewatch PDF]

Arbitration and other ADR

Tryhaz v Fielder
This case confirms the proposition that the Court will not ordinarily interfere with the Referee’s Report and will not ordinarily allow fresh evidence or submissions which could have been made before the Referee. [View Casewatch PDF]

Liverpol v Casbee
A party to an arbitration must exercise due diligence by referring a dispute to arbitration without delay. However, for an arbitration to be terminated a party must demonstrate that there has been an inexcusable delay and a serious risk of prejudice, that is by demonstrating the unavailability of witnesses and loss of documents or other sources of information. [View Casewatch PDF]

Brecon Builders v Ripa Steel
A breach of natural justice is likely to be committed where an arbitrator decides a major part of a claim without giving the parties fair opportunity to be heard [View Casewatch PDF]

Contract (including variations) & Tort

Roluke v Lamaro
The New South Wales Supreme Court has recently examined the heads of damages which a party may claim in respect of a diminution in market value by reason of faulty workmanship and found that the Courts may allow for an additional head of damage, namely, diminution in market value to the structure where a nexus can be shown between the defective workmanship and the reduced market value. [View Casewatch PDF]

Dualcorp v Remo
This case illustrates that where a contract provides for a vague procedure for dispute resolution (through a poorly drafted dispute resolution mechanism), the Courts are not willing to allow an obscure and uncertain clause to operate to exclude the jurisdiction of the Court, particularly in circumstances where the clause on its interpretation is not reflective of the parties’ apparent intentions. [View Casewatch PDF]

Lumbers v Cook
This case demonstrates the traditional position that in normal circumstances a subcontractor will have no claim against a property owner for work done on the property. If the subcontractor wished to have payment secured by the property owner a separate agreement or special relationship would be required. [View Casewatch PDF]

Multiplex Constructions UK v Honeywell Control Systems
The English High Court has recently examined the entitlement of contractors to extensions of time with respect to the preventative conduct of principals and the impact of that conduct on whether time is at large. This case illustrates that careful contract administration is necessary to avoid loss of entitlement to extension of time by a contractor. [View Casewatch PDF]

Perum Building Construction v Tallenford
This case illustrates the importance of understanding the terms of the contract, clearly defining the nature of the contract, the scope of work, and also underlines the importance of negotiation of the contract terms ensuring that there are adequate provisions to accommodate latent conditions, variations or misdescriptions. [View Casewatch PDF]

Sweeney v Boylan Nominees
This case illustrates the importance of proper engagement of contractors in order that the principal is not vicariously liable for the contractors default. The terms of engagement should clarify the varying indicia of the independent contractor, no control over way in which the work was done, the contractor’s provision of tools, equipment, uniform, transport and payment for services rendered and whether the contractor is to be presented as part of the defendant’s organization. [View Casewatch PDF]

Houghton v Arms
This case illustrates the reach of the Fair-Trading legislation and the remedies available against individual employees for misleading or deceptive conduct they are alleged to have performed as part of their employment. It may have interesting application to officers of a company who mislead others into trading with the company just prior to administration or winding up. [View Casewatch PDF]

Thiess v Placer
This case stands for the proposition that good faith involves goodwill, co-operation and honesty between the parties and this extends to the reasonableness and fairness in pricing. [View Casewatch PDF]

Royal Botanic v South Sydney
The boundaries of the duty of good faith have yet to be fully determined but the Courts expect fairness and reasonableness from the parties. [View Casewatch PDF]

John Holland v Majorca
This case stands for the proposition that Architects do not owe a duty of care, and are not directly liable, to Builders under a JCC Contract. [View Casewatch PDF]

Hughes v Air Services
This case stands for the proposition that the Courts expect a standard of fairness in contracts. A duty upon the parties of good faith and fair dealing in the performance of contracts may be implied and compliance with agreed tender process is covered by the duty. [View Casewatch PDF]

Far Horizons v McDonalds
This case stands for the proposition that an implied duty of good faith obliges each party to a contract to exercise the powers conferred upon it in good faith or reasonably, and not capriciously or for some extraneous purpose. [View Casewatch PDF]

Baulderstone v Qantas
This case stands for the proposition that a Superintendent must carefully consider and resolve a Contractor’s claim on its merits and must not be unfairly influenced by the Principal. Further, a construction programme is likely to be considered by the Courts as a statement of intention or expectation rather than a contractually binding timeframe. [View Casewatch PDF]

Alcatel v Scarcella
This case stands for the proposition that a duty of good faith, both in performing obligations and exercising rights may, by implication, be imposed upon parties as part of a contract. It extends to prohibit unreasonably encouraging third parties to improve obligations on the other contracting party for factual advantage. [View Casewatch PDF]

Kane v Sopov
This case stands for the proposition that where the Superintendent does not act fairly and independently of the Principal the Courts may determine that the Superintendent is not acting fairly. [View Casewatch PDF]

Overlook v Foxtel
This case stands for the proposition that the duty of good faith is best regarded as an obligation not to act in bad faith. [View Casewatch PDF]

State of NSW v Coya
This case stands for the proposition that a Principal may be liable for the Superintendent’s failure to properly consider and properly value variation claims but not to ensure he/she is always correct. [View Casewatch PDF]

Renard v Minister for Public Works
This case stands for the proposition that reasonableness may overlap and be indistinguishable from good faith. Accordingly, in the event of a Contractor’s challenge to the reasonableness of a direction by a Principal, it is important to consider both the reasonableness of the Principal’s actions and whether the Principal was acting in good faith. [View Casewatch PDF]

Perini v Commonwealth
This case stands for the proposition that the Courts usually imply a term into the contract that the Superintendent will act, and the Principal shall ensure that the Superintendent will act, in a fair, unbiased and competent manner. [View Casewatch PDF]

Esso v Southern (Appeal)
This case confirms the proposition that a party may breach its duty of good faith if it acts unreasonably, capriciously, or in the pursuit of an ulterior purpose. Further, a duty of good faith is a duty of good faith is likely only to arise where a party is vulnerable or at a disadvantage. [View Casewatch PDF]

Esso v Southern
This case stands for the proposition that the content of the duty of good faith encompasses two concepts; the prohibition of a party from exercising a contractual power capriciously or for an extraneous purpose, and the obligation to refrain from acting in 'bad faith'. [View Casewatch PDF]

ABB Power v Chapple
This case confirms the proposition that for 'the appropriate enquiry' for the purposes of determining an entitlement to quantum meruit is whether the recipient of the relevant services should have objectively realised he would be expected to pay for them. [View Casewatch PDF]

Turner v Co-ordinated
This case confirms that for a building contract which contains a clause in the terms of clause 35.4, there is no room for the prevention principle to operate because it is, in effect, excluded by the express contractual provision. [View Casewatch PDF]

Pavey & Matthews v Paul
This case stands for the proposition that quantum meruit is based not on an implied contract, but on a claim to restitution or unjust enrichment and arises from the acceptance of benefits accruing to one party as a result of the work done by the other. Further, the obligation to pay fair and just compensation for a benefit which has been accepted will only arise where such an agreement is frustrated, avoided or unenforceable. [View Casewatch PDF]

Liebe v Molloy
This case stands for the proposition that if the work claimed for had been work required by the contract to be done, then the builder could not recover for it, because he had not complied with the contractual requirements. However, if the work was work which the builder was not required to do by the contract (i.e. outside the contract) then a builder may recover on the basis of quantum meruit if the employer: (i) had actual knowledge of the extra works as they were being done, (ii) knew that they were outside the contract, and (iii) knew that the builder expected to be paid for them as extras. [View Casewatch PDF]

Electronic v David Jones
This case stands for the proposition that if action is required to bring about the intended result, each party has the duty of complying with the reasonable requests made by the other to ensure the intended result is achieved. [View Casewatch PDF]

Dunlop v New Garage
The use of the words ‘penalty’ or ‘liquidated damages’ does necessary mean that a clause is either a ‘penalty’ or a ‘liquidated damages’ clause. The Court will review the clause in light of the circumstances at the time of entering into the Contract. [View Casewatch PDF]

Beckhaus v Brewarrina (Appeal)
Where the Contract works are defective, a Principal is only entitled to the difference between the costs incurred in rectifying the defects and the amount it would have taken to complete the works under the Contract. [View Casewatch PDF]

Wells v Army and Navy
If the Contract does not clearly provide for an extension of time as a result of the defaulting act of the Principal, the prevention principle may be enlivened. [View Casewatch PDF]

Turner v Austotel
The prevention principle has no application to the JCCA form of contract due to the existence of an extension of time clause entitling the Builder to an extension of time in respect of the preventative acts by the Proprietor. Further, Builders who fail to comply with the notice requirements for extensions of time may remain liable for liquidated damages while losing their right to extension of time for the acts in question. [View Casewatch PDF]

Trimis v Mina
This case confirms the proposition that where a principal has actual knowledge of the additional or extra works, knows that they are outside the contract and knows that the builder is expecting to be paid for the works as extras to the contract, then a builder may be entitled to claim on a quantum meruit or restitutionary basis. [View Casewatch PDF]

Peak v McKinney
This case stands for the proposition that a principal may lose the right to claim liquidated damages if some delay is due to the principal’s defaults or the defaults of its employees or agents and the contract does not provide for an extension of time in that event. [View Casewatch PDF]

Walter v FTAC
The Trades Practices Act applies to everyone! [View Casewtch PDF]

Stockland v Coombs
When a professional is required to undertake additional work, a percentage based remuneration may significantly under-recover the time and costs incurred [View Casewtch PDF]

Roche v Metro
A party may affirm a contract by continuing to exercise its rights (work) under the contract after it is aware of a breach entitling it to terminate the contract [View Casewatch PDF]

Murphy v Acumen
Practical Completion means completion for practical purposes! [View Casewatch PDF]

Jennings Constructions v Q H & M Birt
'Time bar' clauses create a condition precedent that must be met before an entitlement to a claim can be made [View Casewatch PDF]

Rickard Constructions & Anor v Rickard Hails & Moretti & Ors
The cause of action in tort or contract can be assigned where there is genuine commercial interest in the enforcement of the cause of action [View Casewatch PDF]

Tan v Luxury
A construction contract will only constitute an 'entire contract' if payment is conditional on the complete performance of the contract [View Casewatch PDF]

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