Applying the Rolls Royce treatment to limitation of liability clauses
The interplay between limitation of liability and set-off clauses When drafting limitation of liability clauses, it is important to consider what ‘liability’ is being limited and whether the limitation of liability (the ‘cap’) will apply to the total net liability after all set-offs are reconciled or whether the cap will apply separately to the liabilities […]
ReadmoreIs the finality of arbitrations now a myth for apportionable claims?
Proportionate liability now applies to the substantive law of arbitrations in Australia The finality of arbitrations is now a myth – at least in respect of disputes involving apportionable claims where parties have not contracted out of the proportionate liability regime. When parties to a commercial contract select arbitration as a forum for resolution of […]
ReadmoreStrata developers in NSW spared increase in bond payments until November 2024
Amendments to the Strata Schemes Management Regulation 2016 – bond increase to 3% delayed until 2 November 2024 Under section 207 of the Strata Schemes Management Act 2015 (NSW) (Act), prior to applying for an Occupation Certificate, the developer of a strata scheme is required to provide security (called a ‘building bond’) equal to 2% […]
ReadmoreThe new DBP Act amendments – insurance requirements for Builders remain exempt until 1 July 2025
Amendments to the DBP Act – further 12 month reprieve for DBP Act insurance requirements for Builders Under the Design and Building Practitioners Act 2020 (NSW) (DBP Act), it is a condition of registration for design and building practitioners that they are ‘adequately insured’ against liabilities arising under the DBP Act including as a result […]
ReadmoreUnpacking the possible engineered stone ban and its shake-up on construction contracts
Most of the Australian standard form construction contracts make provision for contractors to comply with ‘legislative requirements’ which are typically broadly defined to include, for example: acts, Ordinances, regulations, by-laws, orders, awards and proclamations of the jurisdiction where WUC or the particular part thereof is being carried out; certificates, licences, consents, permits, approvals and requirements […]
ReadmoreWhen claiming statutory debts under the Security of Payment Act may not be a slam dunk
It is well established policy now enshrined under the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOPA) that for the construction industry to remain sustainable, subcontractors and suppliers must have regular and reliable access to cashflow. Aside from limited circumstances[1], the risk of insolvency (of either party) rests with the payor (recipient […]
ReadmoreIn NSW, the DBP Act is about to extend to the commercial sector, encompassing projects involving hotels and aged care facilities
In 2020, the New South Wales Government introduced the Design and Building Practitioners Act 2020 (NSW) (DBP Act) and the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (NSW) (RAB Act) as part of long-awaited reforms aimed at improving the standard of construction work in NSW and restoring public confidence in the industry. From […]
ReadmoreInsolvent contractors in New South Wales may be able to pursue debts through the Security of Payment Act regime
On 17 February 2023, Justice Ball of the New South Wales Supreme Court handed down his decision in Kennedy Civil Contracting Pty Ltd (Administrators Appointed) v Richard Crookes Construction Pty Ltd; In the matter of Kennedy Civil Contracting Pty Ltd [2023] NSWSC 99. Facts Kennedy Civil Contracting Pty Ltd (Administrators Appointed) (KCC) commenced proceedings against […]
ReadmoreFurther reforms to the Security of Payment regime in NSW – Implications for the construction industry
One of the most important pieces of legislation for the NSW construction industry, the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOP Act), is set to undergo further reform with the proposed Building and Construction Legislation Amendment Bill 2022 and accompanying regulation, the Building and Construction Legislation Amendment Regulation 2022 (together, the […]
ReadmoreMajor reform of NSW construction legislation on the horizon
The New South Wales Government has recently introduced three new bills and one accompanying regulation which aims to improve the standards and accountability of participants in the construction industry within the state. The bills, which are currently in the consultation phase until 25 November of this year, are the: Building Bill 2022; Building Compliance and […]
ReadmoreThe 2022 NCC – Mandating energy efficient homes
The National Construction Code (NCC) 2022 will be available from 1 October 2022, with a raft of new performance requirements designed to improve liveability and reduce energy consumption and carbon emissions. This update focuses on the new energy efficiency requirements in the NCC 2022. The proposed changes to NCC 2022 to address energy wastage are […]
ReadmoreThe duty of care under the DBP Act can extend to owner developers who have ‘substantial control’ over the carrying out of building work
In The Owners – Strata Plan No 84674 v Pafburn Pty Ltd [2022] NSWSC 659, the plaintiff (Owners Corporation) commenced proceedings against Pafburn Pty Limited (First Defendant) (Builder) and Madarina Pty Limited (Second Defendant) (Developer) in relation to alleged defective construction work in respect of a strata development in North Sydney. The Developer was the owner […]
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