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This special report summaries the important decisions and legislation changes to the Building and Security of Payment Acts across Australia.

Richard is a specialist construction and public, private partnership (PPP) lawyer.

The Council of Australian Governments has endorsed the development of a National Construction Code.

Two recent court decisions signal an end to the perception which often seems to be held by contractors: the same claim can be made in a subsequent payment claim if they are not satisfied with the outcome of an adjudication.

Owners or recipients of payment claims made under the security of payment legislation of the East Coast states have typically struggled to overcome the often drastic consequences of failing to provide a payment schedule in the timeframe required by the legislation.

Clive's principal areas of practice are advising on construction, engineering and infrastructure projects, dispute resolution including international arbitration.

Two recently-published international surveys have recognised the strength of Minter Ellison's construction team, confirming our specialist lawyers as amongst the best in Australia.

Australia's judiciary has once again had to consider the interpretation of standard form contracts containing liquidated damages clauses when parties insert the rate for liquidated damages as 'Nil' or 'N/A'.

A recent decision handed down by the High Court of Australia highlights the difficulties that can arise when a party to a contract changes its internal arrangements without advising the other party.

The High Court recently delivered its decision in Tabcorp Holdings Ltd v Bowen Investments Pty Ltd and confirmed an award of damages of $1.38 million for breach of a covenant not to alter premises without the landlord's consent. The tenant argued that the measure of damages should be the reduction in the value of the premises by reason of the new foyer (versus the old).  This was not accepted, although such analysis may apply in 'fairly exceptional circumstances' where the rectification works are unreasonable.

The current economic climate has brought into sharper focus the competing rights of landowners and administrators if a contractor goes into insolvency administration.

If a separate doctrine of waiver becomes established law in Australia, new doors will be opened for wronged parties to a contract.  However, until the law is settled, claimants are still likely to mount waiver arguments alleging reliance, detriment and consideration.

This special report summaries the important decisions and legislation changes to the Building and Security of Payment Acts across Australia in 2008.

Businesses working in  the construction industry must start preparing for the arrival of Australia's  Carbon Pollution Reduction Scheme - a key aspect of the Government's climate change response.

A scandal has erupted in the UK regarding bid rigging for public sector contracts – procurement based on the lowest price is seen as a significant contributing factor. This article discusses the controversy raging in the UK regarding bid rigging for public sector contracts and compares the UK position with that in Hong Kong.

The recent  case of BHP Coal Pty Ltd v OK Orenstein and Koppel AG provides a  timely reminder of the challenges facing professionals in an advancing world of  knowledge.

Ever been involved in a construction project which hasn't gone smoothly? No need to worry.  Most states have now enacted legislation concerning 'security of payment' claims which will make your life much easier - provided you avoid the 10 most common and costly traps.

A recent decision in the Court of Appeal limits the effectiveness of indemnity and insurance provisions commonly found in contracts and subcontracts. All subcontractors must ensure their insurance adequately covers the head contractor for all liability flowing from a danger or hazard.

Minter Ellison is delighted to introduce construction law made easy. construction law made easy by Minter Ellison is a website specifically designed to make life easier for construction, property and infrastructure industry professionals. Our online resource explains legal concepts in easy to use terms. We provide you with real life examples and links to current cases and legislation.

Here are some useful tips to help facilitate the successful delivery of complex projects.

The current boom in the engineering and infrastructure market has seen principals become more creative with project delivery models to help attract the best contractors and engineering resources available. Early Contractor Involvement is one such innovative project delivery method that has a strong emphasis on developing long-term relationships between parties.

The introduction of the Building and Construction Industry Security of Payment Bill could potentially over-ride the Worker's Liens Act, which has been in operation for more than a century. If passed, the Bill will have a much wider application than existing legislation by offering contractors additional entitlements.

If a future Australia is to have a world class public transport system, we must start exploring innovative ways to manage and procure transport infrastructure and services through harnessing substantial investment from the private sector.

Can a Superintendent submit a payment schedule under the Security of Payment Act? This was the question thrown into the spotlight during a recent case heard before the NSW Supreme Court.

The decision of Precept Services Pty Ltd v Concrete Equipment Australia (Trading) & Anor outlines some of the key issues to consider when upholding the validity of a notice of claim of charge.

The recent case of BMD Major Projects Pty Ltd v Victorian Urban Development Authority raised some interesting issues for both owners and contractors when dealing with latent conditions claim. It also highlighted the need for contractors to take care when considering the wording of latent condition clauses and notice provisions in construction contracts.

The creation of Infrastructure Australia by the Rudd Government represents the first concerted attempt at national leadership in the prioritisation and delivery of public infrastructure. What will be the likely impacts of this new statutory body for Australia's construction industry?

Few areas of law are developing so rapidly with such immediate impacts on the way industry participants run their business. This special report summaries the important decisions and legislation changes to the Building and Security of Payment Acts across Australia.

A looming question for the building and construction industry is, what will happen if the Australian Labor Party wins the election and would an ALP Government move to change the National Code and the Implementation Guidelines immediately after the election?

In the decision of Doolan v Rubikcon the Queensland Supreme Court has held that a contractor cannot resubmit a previously unpaid payment claim with a new date and make an adjudication application when the claim remains unpaid. Whilst successive payment claims do not necessarily have to be for new or additional work, they cannot be identical.

Professional designers in the building and construction industry have generally found comfort in the moral rights protections of the Copyright Act 1968. However, the first moral rights decision to be handed down by an Australian court in Meskenas v ACP Publishing Pty Ltd, provided a good test case for the application of the Act.

Arbitrations are a common dispute resolution procedure used by parties for construction disputes. However, the arbitration process can be slow and costly, particularly if either of the parties adopt 'go slow' tactics. The Institute of Arbitrators & Mediators Australia has launched a set of guidelines which aim to reduce the costs associated with arbitrations and provide the parties with quick determinations.

The Queensland Parliament has passed legislation to amend the Judicial Review Act, which will exclude an adjudicator's decision from judicial review, under the Act. It will be interesting to observe the extent to which parties will be able to challenge an adjudicator's decision after the amendments take effect.

Discussion and negotiation over use of the terms 'all reasonable endeavours' and 'best endeavours' are commonplace in many commercial contracts and were central to a recent decision handed down by the NSW Court of Appeal.

The revised Equator Principles launched in 2006, represent an important shift in project finance decision making requiring operators to account for the adverse social and environmental costs of their projects. The Principles require project financiers to play a role in ensuring projects are developed in a socially responsible manner, that reflect sound environmental practices.

Given that the contribution of the built environment to climate change was not addressed by Prime Minister's Taskforce report, it seems unlikely that a Commonwealth scheme will provide credits for abatement activities. The New South Wales Greenhouse Gas Abatement Scheme does allow for carbon credits for greenhouse gas abatement activities for buildings and parties involved in the construction or management should keep this front of mind.

The attractiveness of developing green buildings for developers and investors has been the result of their marketability with limited incentives provided by either the federal or state governments. On the other hand the UK Government has taken an incentive-based approach by introducing a stamp duty exemption for zero-carbon homes to encourage more companies to build green.

The NSW Land and Environment Court recently rejected a challenge, brought by a Sydney law student, that the $800 million redevelopment of the former CUB site was not environmentally sustainable. While the court rejected the challenge, the case is one of the first ripples of the coming wave of green litigation.

The new National Greenhouse and Energy Reporting Bill 2007, which will introduce mandatory measuring and reporting of greenhouse gas emissions, provides the first major plank of Australia's emission trading scheme. The Bill was introduced amidst pressure from the state and territory governments to establish a mandatory reporting scheme, which would be capable of reducing greenhouse emissions.

The potential for legal disputes involving green buildings revolves around the use of operational or performance-based rating tools, rather than design or delivery-based tools, according to Australia’s leading green building practitioner. Responsibility for obtaining a rating needs to be addressed in the relevant project and contractual documentation.

The Victorian Supreme Court's decision in Woods v. De Gabriele and Others, handed down on 15 June 2007, clarifies the effect of proportionate liability on risk allocations in contracts.

Three recent decisions of the NSW Court of Appeal demonstrate that, in the context of challenges to an adjudicator's determination under the Security of Payments legislation, the NSW decision of Brodyn Pty Ltd v Davenport (Brodyn) will continue to be followed until the High Court determines otherwise.

Some courts have held that a party relying on a consequential loss clause must have actual knowledge, at the time of the contract, of special circumstances likely to cause the loss, otherwise the damages are too remote to be recoverable. The law on this matter, however, is not settled.

What are the inherent risks of the Green Star ratings tool and what issues do project participants need to address to ensure risk and responsibility for achieving rating outcomes are appropriately allocated? And, how can disputes be avoided when ratings expectations are not met?

The Australian Taxation Office has released a ruling which explains its view of the operation of the construction withholding tax provisions.

The importance of appropriate disclosure in commercial negotiations, where it can be reasonably expected to occur, was reiterated in the decision of EK Nominees Pty Ltd v Woolworths Ltd.

The High Court, in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd, overturned a Full Federal Court decision, holding that a land owner who commissions architectural drawings as part of a land development has the right to sublicense the use of those drawings to a purchaser who wishes to continue the development.

Environmental considerations are key factors affecting business decisions today, with many organisations implementing an environmental rating system. Although there are obvious environmental and commercial benefits for doing so, achieving these ratings often means higher development costs.

As the decision of the Hong Kong Court of First Instance in Government of the HKSAR v Hongkong and Yaumati Ferry Co Ltd shows, the position in Hong Kong remains that good faith cannot be implied in negotiations.