Nature and extent of details required to be included in a valid payment claim under the Building & Construction Industry Security of Payment Act 2002 (Vic) Act (the Act), and the assessment process required to be undertaken by an Adjudicator to determine the value of claims to avoid jurisdictional error
Category: Building and Construction Law
Slicing and dicing technical engineering construction cases: Orders for appointment of both an Assessor, and a Special Referee
Whether the Court would be best assisted by a report from a special referee under O. 50 of the Supreme Court (General Civil Procedure) Rules (Vic) 2015 and or an assessor under s. 77 of the Supreme Court Act 1986 (Vic) and s. 65M of the Civil Procedure Act 2010 (Vic) (CPA)
Excess progress payments refundable by builder where statutory warning not signed by the building owners
VCAT has determined that $654,568.00 in progress payments received by a builder was repayable as the building owners did not sign the warning in the contract that the progress payments were in excess of the statutory limits set out in section 40 of the Domestic Building Contracts Act 1998 (DBC Act)
A single judge of the Supreme Court of New South Wales has found that an assignment of contractual warranties in a contract to construct a container terminal was effective to assign causes of action that had accrued at the time of the assignment
Is the existence of a reference date under Security of Payment legislation a jurisdictional fact amenable to review?
The NSW Court of Appeal determined, unanimously, that a finding by an adjudicator of an available reference date is not a jurisdictional fact and therefore is not a precondition to the making of a valid payment claim. On this basis the adjudicator’s decision was not amenable to judicial review.
Validity of payment claims solely for work previously performed but not claimed in an earlier payment claim in respect of an earlier reference date under the BCISOP Act
Will a Payment Claim under the BCISOP Act be valid if it:
- only claims for work not previously claimed in an earlier payment claim made pursuant to an earlier reference date; and / or,
- does not contain a claim for work performed since the last reference date ?
VCAT has recently confirmed that an applicant in a building action is not entitled to make a claim against a respondent who has been joined as a concurrent wrongdoer if that claim is out of time under the Building Act 1993.
In obiter remarks the High Court has now provided some clarity by unequivocally stating that “surrounding circumstances” may only be used to construe a written contract when “ambiguity” is present.
The proposed reforms to the domestic building industry (discussed in the CommBarNews of 28 May 2014) have been put on hold by the change of government in Victoria. Despite this, VMIA has taken the pro-active step of improving the services it offers to consumers.
Vickery J looked at applications to set aside judgments under s.28R(5)(a)(iii) of the Building and Construction Industry Security of Payment Act 2002 (Vic) (SOP Act) and the availability in this context of challenges based on jurisdictional error (available) and error on the face of the record (not available).
The NSW Court of Appeal looked at whether the vendor of a private home, who had admitted misrepresenting the quality of the home, could be liable for a breach of the misleading and deceptive conduct provisions of the Australian Consumer Law. The Court also looked at the proportionate liability regime in Part VIA.
The use of expert evidence is controlled by primary and subordinate legislation. Courts can use their extensive management powers to assist the process but often the parties do not focus early enough on what is required.
Case Note by David McAndrew. The Court of Appeal has found that interlocutory applications to restrain recourse to performance bonds generally fall into a special category when it comes to whether the Court should exercise its discretion to decide a question of law/construe the recourse provision. A mere assertion of reputational damage in the event of recourse will not suffice to demonstrate likelihood of irreparable harm.
Domestic Building Contracts Act 1995 (Vic) applies to multi-apartment developments: Burbank Australia Pty Ltd v Owners Corporation  VSC 160, 29 April 2015, McDonald J.
The Supreme Court of Victoria was required to consider the application of the Domestic Building Contracts Act 1995 (Vic) to multi-apartment developments. McDonald J held that, subject to the nature of the works falling within the definition of “domestic building work”, the Act applies to multi-apartment developments and to developers of such developments.