Thanks for Nothing

dead plantWell drafted security of payment legislation would provide that if the claimant makes an application for adjudication, and the adjudicator decides that there is no jurisdiction, then the claimant should pay the adjudicator’s fees. But the legislation in Australia does not currently say that. By way of example, section 30 of the Building and Construction Industry Security of Payment Act 2009 (SA) provides that an adjudicator is entitled to be paid for adjudicating an adjudication application. It might well be thought that that means a valid adjudication application.

Similarly, if anything is agreed by way of fees between the adjudicator in the parties, a sensible agreement might include the same provision.

But what is the position where an adjudicator spends a considerable amount of time considering  what purports to be an adjudication application, and then concludes that there was never a valid payment claim, and hence no adjudication application, or adjudication within the jurisdiction conferred by the Act? As the High Court said in Continue reading

A Suggested Ban on Queens of Hearts Clauses

queenMany if not most construction contracts contain notice provisions, which are fine: contractor have to give reasonable notice of their claims. Others contain Queen of Hearts clauses: clauses which are designed to be practically impossible of compliance and hence to frustrate the underlying contractual scheme of payment for varied work, extension of time in defined circumstances, etc.

Recently, I have seen examples where

  • The contractor is required to give no less than 10 notices/claims  in respect of the same event, each expressed to be a condition precedent to payment;
  • The contractor is required to provide a full time impact analysis every time something happens which might – just might – cause a delay;
  • If the employer issues a variation order, varying the work, the contract has to promptly give notice in a prescribed form that the variation order varies the work. Again, this completely pointless notice is a condition precedent to payment for the varied work.

I have not yet seen a provision requiring claims to be submitted on unicorn vellum and served on Father Christmas, but the effect is much Continue reading

Spoiled for Choice

Doyle’s Guide is, it seems, the most reliable of the guides to lawyers in Australia, and their 2017 Construction Law rankings are due out tomorrow, they tell me.

They also tell me that I am now free to any of the following ranking recognition banners:

Now, which  of these, I wonder, should I choose? Not all of them, obviously, or one will end up looking like a North Korean General:



A Rare Petition

575238_222880941184528_1973088916_nI am not big into petitions. But the recent By-Law designed to stop dogs running freely on local beaches really does get my goat.

So, if you can be troubled, and if you agree that dogs (including Perdita, of course) should be allowed to run freely on the beach, I really would be grateful if you would add your name.

You can read more and sign the petition here: Continue reading

Adjudication Review Time

I have not been posting here as much as usual recently, for the prosaic reason that I have been fully stretched working on cases that have demanded full-time attention.

One advantage of the bar is that there is a sort of self-limiting protection against overwork: one can only be in one court at a time. And so I have had to turn away a number of briefs recently simply because I have been already briefed to do something else at the same time. When I was a solicitor, there was no such mechanism. So, “Sorry” to those I have had to say “no” to.

john-murrayThe great majority of what I have been doing has been in relation to adjudications, and I was very pleased to see that the Federal Government has launched a review into the absurd disparities between the Acts in different States and Territories, to be run by John Murray. I was honoured to be able to lead the Society of Construction Law Australia’s report into all of this in 2014: we came down firmly in favour of a federal system.  I have acted or advised in adjudications in all jurisdictions in Australia apart from Tasmania and the ACT, and have encountered no good reason at all for the present patchwork of quite different regimes in different States and Territories. The challenges and the best answers are the same everywhere.

The Federal Government’s Media Release is Continue reading

Long Vac

Just finished eating some supper outside. At 8.30, still 31 degrees.

It was pretty much the first I have seen of the sun today. Why? Because I have been working on an adjudication response.  The Christmas break has become the traditional time to launch adjudication applications, with their very short time scales.

When I started in the law in England, there was something called “long vacation” Which was the summer months of July and August.  Not a lot happened in July and August.

There might be something to be said for the idea that adjudication times should not run between, say, Christmas eve and mid-January. Continue reading

Maxcon in The Shade

chatswoodThe decision in Probuild v Shade Systems earlier this year[1] raised a few eyebrows.  At first instance in the Supreme Court In New South Wales, Emmett AJA had decided that the determination of an adjudicator might be quashed on the basis of a non-jurisdictional error off law on the face of the record.  There had previously been one or two decisions which had suggested this possibility; after all the effect of the decision in Chase Oyster Bar v Hamow Industries had been that the decisions of the adjudicators are amenable to certiorari, an error of law on the face of the record is one of the traditional grounds for certiorari (and in deed the other forms of judicial review, namely mandamus, prohibition, and quo warranto).

On the 23rd of December 2016 five judges in the New South Wales Court of Appeal overturned that decision in Shade Systems v Probuild Construction (No 2)[2], the decision of Basten JA (with whom all the other Judges agreed) was that it is only jurisdictional errors of law which suffice to quash an adjudicator’s determination Continue reading