New South Wales

In New South Wales, the decisions highlight when a contractor's scope of work may be extended to include work not specifically included in the scope of work, by virtue of the statutory warranties set out in section 18B of the Home Building Act 1989 (NSW). We also consider whether contract drawings and plans that form part of a construction contract are instructions that enable a builder to rely on the defences to a breach of these warranties, as well as whether parties will be unable to rely on inconsistent implied terms if the provisions of a contract articulate a clear intention.

Queensland

In Queensland, the decisions provide guidance on the validity of payment claims under the Building Industry Fairness (Security of Payment) Act 2017 (BIF Act). These include that payment claims need to provide sufficient identification of the work for which payment is claimed, and must only deal with claims under one construction contract. The Queensland cases we have covered in this edition also highlight that parties cannot agree to alter the statutory definition of a payment schedule. We also consider when the 'policy' of the BIF Act could be a relevant factor against granting an interlocutory injunction, as well as the circumstances in which the court will not release funds that were paid into court in connection with an application to have an adjudication determination declared void.

The remaining cases uphold that the policy and philosophy of the Uniform Civil Procedure Rules (UCPR) will not be set aside to ease concerns about prejudice and the disclosure of draft expert reports. This reminds us of the need to ensure that expert reports comply with the Makita requirements, and highlights the occasions where the unpaid debts of a construction company in liquidation may be recoverable as damages. It also reminds us that a principal contractor will not be vicariously liable for all injuries and loss suffered by subcontractors or independent contractors on-site. However, failure to enforce safety procedures may still constitute a breach of the duty to take reasonable care to avoid unnecessary risk or injury, and to minimise other risks of injury.

South Australia & Western Australia

The decision arising out of the South Australian Supreme Court of Appeal shows that Courts will continue to apply a liberal approach to the construction of dispute resolution clauses in order to effect a business-like and commercially tenable interpretation of the parties' agreement. The decisions arising out of the Western Australian Supreme Court highlight the circumstances in which the Supreme Court will grant summary judgement in respect of certified progress claims, and where an application to have proceedings transferred to interstate courts will be 'in the interests of justice'.

If there is anything in particular you would like us to cover in an upcoming edition, please get in touch with our team.