The New South Wales decisions consider the risks associated with a failure to adequately plead, particularise and present a party's case; the circumstances in which an adjudicator who fails to expressly consider a contractual argument raised in adjudication will fail to comply with the NSW SOP Act; the Court's interpretation of a narrowly drafted arbitration clause; whether the Court will make an order for rectification works in circumstances where damages are being sought; a builder's entitlement to obtain legal or equitable interest in land for the performance of work under the Home Building Act; and whether service of a payment claim is invalidated by a claimant's failure to serve a head contractor's supporting statement.

The Northern Territory case reiterates the importance ensuring that both parties follow the correct contract formation processes. The Queensland Supreme Court decision considers whether a flagrant breach of a restrictive covenant and court imposed injunction will be grounds for a mandatory injunction. The South Australian decisions consider procedural fairness in adjudications; what the court will consider when assessing whether work the subject of a payment claim was performed within the six months before the claim; and the circumstances in which a builder's failure to perform work may not give rise to damages in the nature of rectification costs. Finally, Victorian decision re-affirms that, in cases involving the VIC SOP Act, a superior court will be more unwilling to grant a stay of judgment pending any appeal.

Legislative Update

Changes to the NCC confirmed – no new definition of 'building complexity' and deferred commencement of a new process to document Performance Solutions | National Construction Code 2019 Amendment 1

In the Australian courts

New South Wales

Make your case – the 3Ps of litigation | Cubic Metre Pty Ltd v C & E Critharis Constructions Pty Ltd [2020] NSWSC 479
What we've got here is a failure to consider | Diona Pty Ltd v Downer EDI Works Pty Ltd [2020] NSWSC 480
Chickens and narrow arbitration clauses: what could go wrong? | Inghams Enterprises Pty Limited v Hannigan [2020] NSWCA 82
Builders to pay up if they don't fix it up | Ippolito v Cesco [2020] NSWSC 561
The unappealing appeal of an unlicensed contractor | Lawrence v Ciantar [2020] NSWCA 89
No supporting statement? No worries! | TFM Epping Land Pty Ltd v Decon Australia Pty Ltd [2020] NSWCA 93

Northern Territory

NT Court of Appeal confirms authority is still essential to creating a binding contract | Halikos Hospitality Pty Ltd & Ors v INPEX Operations Australia Pty Ltd [2020] NTCA 4

Queensland

Indemnity costs awarded in response to flagrant covenant and injunction breaches | BGM Projects Pty Ltd v Durmaz Corporation Pty Ltd [2020] QSC 87

South Australia

Not fair adjudicator – jurisdictional error found where decision based on points not raised by the parties | Ausenco Operations Pty Ltd & Anor v Ferretti International Ottoway Pty Ltd & Anor [2020] SASC 46
Long stop date on payment claims and running accounts | Commercial Fitouts Australia Pty Ltd v Miracle Ceiling (Aust) Pty Ltd & Ors [2020] SASC 11
Rectification costs not always guaranteed for defective work | Tincknell v Duthy Homes Pty Ltd [2020] SASCFC 24

Victoria

Should I stay or should I go (ahead and pay)? | ASEA 1 Pty Ltd v Rudyard Pty Ltd [2020] VSCA 122
Challenging the finality of final progress certificates under building contracts | Kelly v Lombardi (Building and Property) [2020] VCAT 284