In this recent decision, the Court of Appeal held that deleted words appearing on the face of an executed contract may not be used to interpret a clause unless the clause in question (excluding the deleted words) is ambiguous. If it is, the deleted words may be used, only, to assist in choosing between alternative constructions.
Category: Building and Construction Law
Security of Payment: What constitutes a “method of resolving disputes” and the adjudicator’s role in assessing value
In this recent decision, the Court of Appeal held that a mediation-based dispute resolution clause in a construction contract did not oust the jurisdiction of an adjudicator under Victorian security of payment legislation, and that an adjudicator is not bound by a valuation certified by a superintendent under a contract.
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
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.