The Supreme Court has emphasised the primacy of the building contract in granting a right to make a claim for final payment and confirmed the requirement for an adjudicator to be satisfied as to the ‘value’ of the works, notwithstanding that alleged defects that were subsequently identified existed at the time of a previous adjudication.
Category: Building and Construction Law
Contractual time bars and claims for damages for misleading or deceptive conduct under s 236 of the ACL
A contractual provision which had the effect of excluding liability for damages for misleading or deceptive conduct under s 236 of the Australian Consumer Law if the complainant failed to give a notice of the proposed claim within a prescribed time limit was found to be unenforceable. Such a provision was also found to be ineffective in a “no transaction” case.
A “revised” payment claim, for a different sum, served one day after another payment claim had been served was invalid because it was held to be a second payment claim and therefore in contravention of s 14(8) of the Building and Construction Industry Security of Payment Act 2002 (Vic) which prohibits more than one payment claim being served in respect of the same reference date.
Court upholds VCAT decision to allow builder to recover on quantum meruit basis (after wrongful repudiation by owner), based exclusively on evidence of quantity surveyor; and finds that s 38 of the Domestic Building Contracts Act 1995 (Vic) does not apply to quantum meruit claims.
Building and Construction Industry Security of Payment Act 1999 (NSW) – Adjudication determination quashed – failure to give adequate reasons
The Supreme Court of Victoria has found that a one-off special purpose company, incorporated for the sole purpose of carrying out a property development, was “in the business of building residences”, and therefore the Security of Payment Act applied to the dispute.
The High Court has handed down its decisions in the second and third cases concerning Security of Payments legislation to come before it. In Probuild v Shade Systems and Maxcon v Vadasz, the High Court affirmed that in New South Wales and South Australia, review is available for jurisdictional error but not for error of law on the face of the record.
In this recent decision the Court of Appeal considers builders’ duties under domestic building contracts to an undisclosed principal and owner, and the parties’ ability to limit the scope of the statutory warranties under the Domestic Building Contracts Act 1995 (Vic).
Victorian cases establish that a statutory payment claim is not invalid by reason of it being served before a reference date. These authorities are likely to be revisited in the light of recent decisions of the High Court of Australia and the New South Wales Court of Appeal.
This article considers the relevant Acts, Rules and Practice Notes that apply in appealing a VCAT decision, identifies the documents that must be prepared, and provides an overview of the relevant appeal steps.
In response to years of consumer complaints, the state government has implemented major reform in the domestic building area. Most notable is the introduction of a new mandatory dispute resolution process called DBDRV. This article will briefly explain the new procedure and identify some of its potential failings.
VCAT has ordered the owners to pay a builder $660,526.41 by way of a quantum meruit following the termination of a building contract; a sum which was “considerably more” than the builder might have recovered in a damages claim under the contract.
Paterson Constructions Pty Ltd v Mann  VCAT 2100
The New South Wales Court of Appeal has determined that an adjudicator’s decision under the Building and Construction Industry Security of Payment Act 1999 (NSW) is not amenable to judicial review for error of law on the face of the record, thus reversing the decision at first instance.
In response to years of consumer complaints, the state government is implementing major changes in relation to domestic building contracts and disputes in Victoria. Practitioners need to be aware of the new procedures and requirements.