New South Wales

The decisions arising out of New South Wales highlight that:

• correspondence between a builder and a home owner may have the effect of varying a building contract between the parties, and extending the completion date for the work, for the purpose of the commencement of a limitation period;
• proof is required in circumstances where an owner of a defective building is seeking to recover damages, arising out of the cost of rectifying defective work. This proof must demonstrate that all of the rectification work performed was required to 'bring the work into conformity with the contract'. This cannot simply be invoices from a third party builder; and
• owners need to ensure that claims for breach of statutory warranties under the Home Building Act 1989 are brought within the statutory limitation period. This period will commence upon practical completion, not on the issue of an occupation certificate under Housing Industry Association contracts.

Queensland

The decisions in the Queensland courts have upheld that:

• union officials with work health and safety (WHS) entry permits are entitled to enter workplaces. This includes construction sites, where the official holds a reasonable suspicion of a safety issue and the union's membership rules cover workers at the site (whether or not workers are actually members);
• courts will strictly construe the requirement for a claimant to 'give' a copy of an adjudication application to a respondent under section 79(3) of the Building and Construction Industry Fairness (Security of Payment) Act 2017 . While an adjudication application may be validly served by post, any claimant wishing to do so needs to be alive to the importance of proving service;
• an opinion about the monetary value of something depends upon many factors. This may include the method of valuation and the point in time, in respect of which the value is said to hold. Where the value of a joint venturer's interest is to be determined, and the contract is silent as to the valuation date, the date that will produce the most relevant and current value should be preferred;
• a force majeure event must be outside a party's control, and not the direct result of a party's fault or negligence. In addition, all notice requirements specified in a force majeure clause must be complied with;
• there is no binding authority obliging a court to imply a duty of good faith into a commercial contract. A court will not imply a duty of good faith in circumstances where: the contract is between commercially sophisticated parties, is capable of sensible operation without the implication of that term, and contains terms that contradict the implication of the duty;
• purported compliance with the Queensland Building and Construction Commission Act 1991 is no excuse for falsifying tenders and quotes; and
• a judge is entitled to accept and prefer evidence adduced by one party, and doing so does not necessarily mean that other evidence has been ignored.

Western Australia

In Western Australia, a construction contract under which a developer charges its interest in the property with due payment to the builder of all moneys that may become payable arising out of the subject matter of the contract, is broad enough to encompass a debt created by an adjudication determination under the Construction Contracts Act 2004. If successful, this debt can be enforced as a security interest.