 | This is our sample newsletter only.
17 September 2003
The new Security of Payment Act in NSW is likely to be much more effective than any other way of guaranteeing cashflow. Payments claims for $33 million dollars are currently being considered – as usual in 10 days – not to mention the Cross-claim in the multi-millions. It is not surprising that payment respondents are now showing some fight. We have a number of Supreme Court actions this month in which owners are contesting the adjudication determinations which they have received. The results of these challenges should be known by early in October 2003.In any event, a well-fought out adjudication is much, much, more cost-effective than any other method of resolving construction disputes, and in our experience, has usually meant an early settlement of the whole matter. The fact that we have at times had a Chartered surveyor, an engineer and an architect on our legal staff helps us meet the tight turn-around timetable for Security of Payments claims.
It is not like the old days when the big firms put pink tape around their documents and sent them off to their City barrister. No time for that sort of caper now. Walters Construction scored an early $13.9M this year because some-one on the other side forgot the short deadlines for responses. Response times can be as little as five days.
There are certain limited circumstances in which Adjudicators’ awards can be resisted. Don’t forget you need legal advice in those situations since costs can run high when the Supreme Court is asked to quash determinations.
Puzzles, Muddles and your favourite Superintendent.
'An inadequately controlled muddle' was how Judge Bowsher described the situation after the Architect's supervision of a project ceased. The issue of supervision is always present in the chain of contracts and employment regimes on building sites.
Superintendents, architects and other consultants or experts are often expected to supervise but it is not always clear what that involves. In that case, Corfield v Grant & Ors, the architect had 5 site visits and 5 in office meetings and sent his assistant to site twice(in the relevant month). All up, the time on site during 7 visits may have amounted in total to 1 hour. The judge held that "what is adequate by way of supervision and other work is not in the end to be tested by the number of hours worked on site or elsewhere, but by asking whether it was enough". In this example, a hotel development, His Honour commented that the architect's assistant was not sufficiently skilled or experienced for fast-tracking a project.
The role of the supervising consultant engineer was considered in Oldschool. There the engineer made 6 site visits in 7 weeks. Of course, different types/frequencies of supervision could be held necessary for different professions, and in respect of different projects. Here, a party wall was being under-excavated without adequate shoring. The court was persuaded to find the engineer was not responsible for doing anything but warn the contractor about dangers to life and property which were likely to result from the chosen construction methods:
"I do not consider that the consulting engineer's duty of supervision extends to instructing the contractors as to the manner in which they are to execute the work…" said the judge.
Certifiers
Since the mid-nineties there has been an increase in reliance upon certificates of compliance with appropriate codes and regulations. In part this has been caused by the privatization of certification since many government organizations have reduced staffs and can no longer perform functions that they have traditionally undertaken. Often certifiers also act as de facto supervisors
In Scolari, a Victorian case, a builder was refused a right to rely upon a certifier's certificate [which may be a statutory right under S.100 of the Building Act] on the basis that only $10.00 was charged by the certifier who had visited the site in order to provide the certificate. In Austcorp v Baulkham Hills SC again a certifier's certificate failed to protect other members of the construction industry who relied upon it. In that case the Court found the following defects in the certificate:
a. it was not signed by the Certifier
b. it did not include the name of the accrediting body which accredited the certifier
c. it failed to contain a statement that the work completed in accordance with the plans and specifications ‘will comply with the requirements of this Regulation’
d. the building as constructed did not accord with the plans and specifications purporting to be approved.
The Court gave no weight to the certificate.
Making sure all the invitations get issued in time
The supervision cases illustrate again the need to consider just how many parties ought be joined in any dispute to ensure that the load of mis-management, or multiple negligence, is fairly shared amongst those responsible. The election to join a number of parties in a lawsuit will become even more important now that insurance cover is so expensive, if not, unattainable, for some applications. Fortunately, at least two States have introduced modern legislation allowing judges to better apportion liability between parties.
The low cost of second opinions
Stop treating your lawyer like God. If you can’t get them to settle, how will a bloke who doesn’t even know what went on, get agreement where you can’t …. Get a second opinion (two Gods are better than one) before you start any litigation or dispute process – like mediation or expert determination. If you lose, legal fees hurt like bone grafts…[and you have that long waiting period for surgery]
Call us for that second opinion by a construction lawyer: remember EXPERIENCE counts [And Allows Us To Discount Our Rates In Big Dollar Cases ] *naturally conditions apply.
And may you have a good month…
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This is our sample newsletter only.
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