Category: Building and Construction Law
The Victorian Court of Appeal has clarified the law in relation to apportionable claims and determined that a failure to take reasonable care must be alleged as part of the pleaded claim for a claim to be apportionable.
The Court of Appeal, by majority, has held that judgment cannot be entered pursuant to s 16 of the Security of Payments legislation where the payment claim includes “excluded amounts”.
In the recent case of Leeda Projects v Zeng, the Court of Appeal clarified the principles for the assessment of damages for loss of use of real property caused by a breach of contract.
The NSW Court of Appeal has set aside an adjudication determination because the adjudicator made his finding on the basis of a reference date that was not available and because he denied the parties procedural fairness.
The Supreme Court of Victoria has held that payment claims under the Building and Construction Industry Security of Payment Act 2002 (Vic) served before a “reference date” are invalid, notwithstanding a contractual deeming provision to the contrary.
An item of work in a payment claim which has not been paid may be claimed again and again as a component of successive payment claims provided the payment claim itself is valid. The limitation period in s 14(4)(b) of the Security of Payment Act only applies to the payment claim.
The Court of Appeal has found that a judge’s exercise of the discretion to construe a recourse provision on an ‘as if final’ basis on an application for an interlocutory injunction to restrain recourse to performance securities miscarried.
The High Court has significantly reduced the scope of the doctrine of quantum meruit in so far as it applies to work undertaken pursuant a contract which has been discharged. In such a case, quantum meruit is only available for completed work but for which a contract entitlement has not crystallised at discharge.
The NSW Court of Appeal has clarified the limits of informality in payment schedules and emphasised the importance of identiying the reasons for the dispute with sufficient particularity to set the boundaries for any adjudication.
The Supreme Court of NSW has found that a statutory authority owed a tortious duty of care in providing information and advice to a developer and considered the evidence required to demonstrate that, but for the misstatement, the developer would have undertaken a more profitable development.
The recent decision of the NSW Court of Appeal in Seymour Whyte v Ostwald confirms that the position in NSW conflicts with the Victorian position on the question of whether the security of payments regime applies to companies in liquidation.
The Court of Appeal has upheld a VCAT decision in which owners were ordered 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.
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.
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.