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The latest issue of the Building and Construction Law Journal (Volume 39 Part 5) contains the following material:
EDITORIAL – Editor: Michael Christie SC
Articles
How Will the New Unfair Contract Terms Regime Affect Construction Contracts? – Jey Nandacumaran and Cameron Inglis
The new unfair contract terms (UCT) regime, which came into effect through reforms to the Australian Consumer Law in late 2023, marked the beginning of a new era. As the reforms significantly expanded the reach of the UCT law, many parties to standard form building contracts may now be subject to “Australian norms of fairness”. This will impact the Australian construction industry, as some terms common to building contracts may be declared unfair and rendered void, causing project disruption and exposing parties to multimillion dollar penalties. Even if not declared unfair, contracting parties may seek to avail themselves of the regime if a particular term is thought to be unfair or if its enforcement causes detriment. This article explores how the UCT reforms will impact the Australian construction industry, how it may influence the behaviour and risk allocation of contracting parties large and small, and whether it is beneficial for the industry or not.
Concurrent Delay and the Prevention Principle – Resolving the Conflicting Lines of Authority – Ian Thorpe
It is submitted that a preventative act by a principal that causes delay concurrent with a contractor’s delay will engage the prevention principle and set the time for completion at large, unless the contract provides for an extension of time for that concurrent preventative act. There is conflicting authority on this subject – the courts found otherwise in North Midland Building Ltd v Cyden Homes Ltd and Turner Corp Ltd (in liq) v Co-ordinated Industries Pty Ltd, but this submission is consistent with Wells v Army & Navy Co-operative Society and Perini Pacific Ltd v Greater Vancouver Sewerage and Drainage District and the characterisation of the prevention principle in Roberts v The Bury Improvement Commissioners, Dodd v Churton, Peak Construction (Liverpool) Ltd v McKinney Foundations Ltd, Trollope & Colls Ltd v North West Metropolitan Regional Hospital Board and Probuild Constructions (Aust) Pty Ltd v DDI Group Pty Ltd.
For Better or for Worse? An Analysis of “Betterment” in the Assessment of Damages in Construction Claims – Amanda Jade Staninovski
The traditional principle underpinning the measure of damages is the cost of rectification of the works which are necessary to achieve conformity with the plans and specifications. However, if the remedial works go beyond the scope and specifications originally stipulated by the contract, and thereby placing a plaintiff in a better position than it had originally bargained for, a defendant may seek to reduce damages based on this “betterment” enjoyed by a plaintiff. While the concept of betterment is clear, the legal principles underpinning betterment, and entitlement to this reduction in damages, are not so prescriptive. This article aims to provide a comprehensive review of the principles of betterment in Australia and its application to practical situations experienced in construction-related legal disputes.
REPORTS
- Cirrus Real Time Processing Systems Pty Ltd v Jet Aviation Australia Pty Ltd
- A-Civil Aust Pty Ltd v Ceerose Pty Ltd
- Bhatt v YTO Construction Pty Ltd
- McDonald v MAK Constructions and Building Services Pty Ltd
- Witron Australia Pty Ltd v Turnkey Innovative Engineering Pty Ltd
For the PDF version of the table of contents, click here: New Westlaw Australia – BCL Vol 39 No 5 Contents.
Click here to access this Part on New Westlaw AU
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