Category: Building and Construction Law

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:

  1. only claims for work not previously claimed in an earlier payment claim made pursuant to an earlier reference date; and / or,
  2.  does not contain a claim for work performed since the last reference date ?

Application to restrain recourse to security

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 [2015] 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.

The penalty doctrine and delay to practical completion caused by trivial events: Grocon Constructors (Qld) Pty Ltd v Juniper Developer No. 2 Pty Ltd & Anor [2015] QSC 102, 23 April 2015, P. Lyons J

A modified AS4300-1995 contract defined practical completion to include an exhaustive list of both significant and trivial items of work. The builder argued that because the failure to attend to trivial items of work could trigger the liquidated damages clause, the clause was penal. The Queensland Supreme Court disagreed.

Appeal against $1.8 million judgment in favour of domestic building insurer fails as appeal point not raised below

The New South Wales Court of Appeal has refused leave to add a ground of appeal against a judgment that the director of a building company and his wife indemnify an insurer for over $1 million paid out to home owners, as the appeal point on which the appellants now sought to rely was not raised before the primary judge.