South Australian Power

PlayfordA lot of people are rather rude about South Australia’s recent record in terms of providing electricity since they decided to “go green” and demolish the State’s main power station, hot on the heels of the very expensive automation of it that is famous in construction law cirles as the subject matter of the Alstom v Yokogawa litigation.

Tomorrow marks the second aniversary since the last time there was a power outage here. Two whole weeks!  To celebrate, there will be a scheduled outage here tomorrow (21st June) from 8.00 am to 3.00 pm. I will fire up my petrol generator, but communications might be suspect.

Meanwhile, the telephone land line has been down in this area since yesterday lunchtime.  Telstra say that they might fix that this week sometime. I have arranged Continue reading

Good Service

sundropI am pleased to report another win, this time in the Supreme Court of South Australia in Ottaway Engineering v Aalborg CSP.

It was another case arising out of a failure by a respondent to serve a payment schedule. Each of the respondent’s arguments in opposition to the claimant’s summary judgment application was rejected:

  • Service of the payment claim on the respondent’s registered office was good service; Falgat v Equity Australia followed and Hill v Halo not followed;
  • The claimant was not estopped from asserting good service merely because previous payment claims had not be served on the registered office;
  • Neither was it misleading or deceptive for the claimant to serve on the registered office;
  • Finally, the payment claim was not invalidated merely because it included claims for acceleration and prolongation, which the respondent said should have been framed as damages claims. If the respondent wanted to challenge those claims on that basis, it could have done so in a payment schedule.

According, Master Dart gave judgment on 7th June for the amount claimed of $1,854,635.14 plus Continue reading

Queens of Hearts in the Dock

QueenOn 15th June, SoCLA is holding a nationwide event to consider the proposal of a new statutory benchmark for unreasonably onerous time-barring provisions in construction contracts.  Discussion in each mainland State in Australia will be followed by a national video hook-up. I will be the convenor for the Adelaide session.

The intention is not so much to move the goalposts here, but to seek to fix the goalposts at a sensible place, since the current reality is that courts, adjudicators and arbitrators use a wide variety of techniques to avoid the inequitable application of Queen of Hearts clauses if they possibly can.

In my book Extra-Contractual Recoveries (still not finished!) I attempt to list the many weapons available in the arsenal of circumvention: Continue reading

Not Exactly A Payment Schedule

Chief Judge Muecke of the South Australian District Court has recently retired, but before doing so he heard the case of Fabtech v Exact. He handed down judgment last week as [2017] SADC 44.

In a sense, the case is routine under the Building and Construction Industry Security of Payment Act 2009 (SA): a subcontractor – Fabtech – served a payment claim on the head contractor – Exact – but Exact failed to provide a payment schedule. And so the court gave summary judgment for the amount claimed. I was counsel for the successful subcontractor.

The interest in the case is in the side issues.


Exact’s initial position was to deny that the payment claim was a payment claim within the ambit of the Act. That position was abandoned before the court, but the denial had an effect: the court had in mind what Exact’s intentions were Continue reading

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: