Construction Industry Seminars
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Lavan's Construction & Infrastructure team have presented seminars on the following topics. If you would like to receive a copy of the slides for any of the seminars detailed below, please email partner Shane Pentony.
4 May 2023 – Contractor Claims and “Incorrect” Interpretation of Specifications, Validity of “Conditional” Certificates of Practical Completion and Limitations on the Ability to Deduct Monies for Defective Works and Circumstances in which a Contractor may suspend works
Construction & Infrastructure partner Shane Pentony, senior associates Cameron Bourhill and Ahshiba Sultana presented on:
- In Built Qld v Pro-Invest  QCA 266, an appeal court interpreted the air conditioning requirements for a hotel as set out in a poorly worded specification by reference to extrinsic evidence. Having done so, it found the Superintendent’s direction to rectify was misguided. Jesse Way explained the Contractor’s entitlement to claim a variation and delay costs for the work done pursuant to that direction, including as to the application of an amended clause 40 requiring a Variation Order before payment for a variation could be claimed.
- In Parkview Constructions v Futuroscop Enterprises  NSWSC 178, the Superintendent came in for some criticism in his administration of the AS4902 form of contract. Ahshiba Sultana discussed the Court’s findings as to “conditional” PC certificates and whether the Court could substitute its own assessment of the date PC was achieved and as to the LDs payable. She will also explain why an attempt to deduct monies for incomplete rectification in the Final Certificate was disallowed.
- In Energy Works (Hull) v MW High Tech Projects  EHWC 3275, a contractor took on a large EPC project to turn waste into energy but never got it to the stage it could be completed. It suspended works, contending the Principal was supplying out of specification waste. It all ended poorly for the Contractor who found itself with a judgement against it for £117m. Shane Pentony discussed the key issues arising (which are applicable to all construction contracts), including a contractor’s right to suspend works before completion, whether LDs are the Principal’s sole remedy for delay, when are common law delay damages available and the ability to rely on clauses attempting to cap liability.
27 July 2022 – Failures of Superintendent’s When Acting Independent;y and Interpretations of a “No Variation without a Variation Order” Clause
Construction & Infrastructure senior associates Ahshiba Sultana and Jesse Way presented on:
- In V601 v Probuild  VSCA 849, the Court found that a superintendent acted in concert with the principal to thwart the contractor’s legitimate claims. Ahshiba Sultana explained how the Court came to that conclusion notwithstanding the Superintendent claiming it did nothing untoward.
- Jesse Way discussed the findings in Built Qld v Pro Invest Hospitality  QSC 224, where there were claims for variations arising under various clauses of the construction contract (eg for contract ambiguities under 8.1 of AS4300) but a failure of the contractor to get a formal Variation Order in respect of them.
21 October 2021 – Application of Prevention Principle to Extension of Time Claims and Liquidated Damages, Recovering Payment for Variations and Limiting Liability and Liquidated Damages
Construction & Infrastructure senior associates Ahshiba Sultana, Jesse Way and Cameron Bourhill presented on:
- In Growthbuilt Pty Ltd v Modern Touch Marble and Granite Pty Ltd  NSWSC 290, it was argued that notwithstanding the contractor’s failure to apply for extensions of time, the contractor should not be liable for liquidated damages because the delay was caused by the principal. Further, the daily rate of LDs applying was over 5% of the contract sum and arguably a penalty. Ahshiba Sultana will explain the Prevention Principle and LDs as applied in this case.
- Jesse Way discussed the reasoning behind the decision in Valmont Interiors Pty Ltd v Giorgio Armani Australia Pty Ltd (No 2)  NSWCA 93 where payment for a variation was allowed notwithstanding the contractual time bar for the contractor's failure to follow the contract procedure.
- In Triple Point Technology v PTT  UKSC 29 the principal terminated and claimed delay damages upon a contractor’s failure to perform. Questions arose both as to the ability to claim common law damages in lieu of liquidated damages on termination and whether the limitation of liability clause would provide the contractor any relief. Cameron Bourhill explained the rationale of the decision.
21 April 2021 – Proving Delays and Use of Programming Experts, Termination of Construction Contracts and the Danger of Certification
Construction & Infrastructure partner Shane Pentony, senior associates Cameron Bourhill and Jesse Way presented on:
- Proving Delays and the Use of Programming Experts - Cameron Bourhill discussed the use that may be made of programming experts in proving that delay claims by reference to the decision in White Constructions v PBS Holdings Pty Ltd  NSWSC 1166.
- Termination of Construction Contracts - What evidence do you need to justify the termination of a construction contract?
Shane Pentony discussed this in reference to two recent decisions of the NSW Court of Appeal - Duff Kennedy Pty Ltd v Galileo Miranda Nominee Pty Ltd  NSWCA 25 and Bundanoon Sandstone Pty Ltd v Cenric Group Pty Ltd; TWT Property Group Pty Limited v Cenric Group Pty Limited  NSWCA 87.
- The Danger of Certification under section 16 of the Building Act - In Mistrina Pty Ltd v Australian Consulting Engineers Pty Ltd  NSWCA 223, a consulting engineer was found liable for considerable damages for misleading and deceptive conduct in certifying its slab design. Jesse Way explained the decision and the potential consequences for consultants carrying out a certification function.
16 Sept 2020 – Latent Conditions, Variations and Delay Costs and Variations and Notice Requirements
Construction & Infrastructure partners Shane Pentony, Greg Nairn and senior associate Cameron Bourhill presented on:
- Latent Conditions - Do you have a latent conditions claim when the asbestos found on site is significantly more than that shown in the geotechnical report?
Greg Nairn presented on this with reference to the decision in PBS Energo AS v Bester Generacion UK Ltd  EWHC 223.
- Variations and Delay Costs - Can you claim costs associated with the additional time needed to carry out variations when the contracts says "no delay costs" are payable? Shane Pentony discussed the decision in Lucas Earthmovers Pty Ltd v AngloGold Ashanti Australia Ltd  FCA 1049, where such a claim was partially successful.
- Variations and Notice Requirements - Cameron Bourhill explained the decision in SHA Premier Constructions Pty Ltd v Lanskey Constructions Pty Ltd  QSC 81, where despite non-compliance with strict notice requirements, a contractor's claims for additional payment for variations were upheld by the Court.
31 July 2019 - The liability of building professionals for defective products
Lavan's Construction & Infrastructure team discussed a decision on combustible aluminium cladding in Owners Corporation v LU Simon Builders Pty Ltd  VCAT 286, using the decision as a vehicle to:
- Explain to what extent building professionals (builders, architects, engineers, surveyors etc) in Western Australia can be held responsible for the use of defective building products; and
- Examine the factors that govern how liability can be divided between the various players.
17 October 2018 - Current Construction and Development Law Issues
Property & Leasing partner Tamara Heng together with Construction & Infrastructure partner Tamica D'Uva and senior associate Cameron Bourhill spoke about:
- Fund Through Developments - Tamara spoke about structuring ‘fund through’ developments - where the land is acquired by the buyer before the improvements are constructed and the developer then is responsible for delivering the improvements. The presentation covered how these developments are funded, how the developer is remunerated for delivering the improvements and why the structure is becoming increasingly popular.
- Assignment of Building Warranties - Tamica spoke on assignment of building warranties on the sale of such developments and the extent to which purchasers of a property can take the benefit of the building warranties. In particular, Tamica discussed the recent case of Walker Group Constructions v Tzaneros where this issue was considered.
- When all else fails, Misleading and Deceptive Conduct? - Cameron discussed the recent case of Brighton Australian v Multiplex Constructions. In this case a subcontractor alleged that the subcontract tender documents contained misleading and deceptive information that caused it to enter into a loss making subcontract.
18 April 2018 - Insolvency in the Construction Industry
There has been a lot of recent media coverage as to contractors becoming insolvent, leaving subcontractors unpaid and projects being put at risk.
Insolvency partner Claire Petersen and Construction partner Tamica D'Uva discussed the legal rights, obligations and remedies associated with such insolvency from the viewpoint of all involved including subcontractors, contractors and principals.
- The insolvency processes as to administration and liquidation, director’s obligations and unfair preference payments.
- The provisions in standard form construction contracts dealing with such events including as to pulling bank guarantees.
- The available statutory remedies (or lack thereof) including under the Construction Contracts Act.
5 October 2017 - The extent of a contractor’s liability for defective work and material
There has been a lot of coverage in the media recently where materials used in the construction of a building have been found to be unsuitable - inflammable cladding (Grenville tower fire), asbestos laden cladding (Perth Children’s Hospital) and toughened glass failing (and falling!). The first person in the firing line will be the contractor.
Construction & Infrastructure partners Rob Shaw and Shane Pentony discussed:
- The extent of a contractor's liability for use of such materials and the relevance of contractual provisions requiring “compliance with Australian Standards” and “fitness for purpose” in extending or limiting the contractor's liability.
- The use of extended warranties from suppliers to provide some comfort that the materials will be suitable.
23 March 2017- How Not to Run a Disruption & Prolongation Claim Basetec v Leighton: scope variations, misleading conduct, and inducing breaches of conduct
Lavan Construction & Infrastructure partners Robert Shaw and Greg Nairn presented on the topics:
How Not to Run a Disruption and Prolongation Claim - An examination of why the subcontractor’s claims in Van Oord UK Ltd and Sicim Road Bridge Ltd v Allseas  EWHC 3074 failed.
It is hard to imagine a more complete and abject failure of a contractor’s claim than in the Van Oord case. The Judge’s reasons, and in particular comments on the shortcomings of the claim, are of interest to any person involved in a disruption and prolongation claim. Rob Shaw expounded on those shortcomings and the evidence the Judge was expecting in support of the case.
Basetec v Leighton: scope variations, misleading conduct, and inducing breaches of conduct - An analysis of a very recent Federal Court decision examining some common, and some uncommon, issues in construction disputes.
In Basetec Services Pty Ltd v Leighton Contractors  FCA 1534, a piping subcontractor brought claims against Leighton following its contract being substantially varied and then terminated for convenience. Greg Nairn discussed key aspects of the case including:
- a claim that Leighton had misled the subcontractor as to the true scope of works;
- a claim that Leighton had induced the subcontractor’s pipe supplier to breach its contract with the subcontractor;
- the application of notice and time bar provisions to the subcontractor’s claims made post-termination;
- how a court approaches the quantification of variations under a construction contract.