The cost of construction materials has risen like never before. This, in turn, creates pressure for parties to use cost estimates and budgets rather than "fixed price" contracts. Providing cost estimates can therefore be...more
A key part of the interim payment process in construction projects is the issuing of payment notices by payee and payer alike. Two recent UK cases demonstrate a strict approach being taken by the courts to the validity of...more
If an extension of time (EOT) clause permits the apportionment of delay, what should be taken into account when apportioning delay? Comments in a recent decision of the Singapore Court of Appeal indicate that a party's...more
Contractors' extension of time (EOT) entitlements and associated financial rights are always to be assessed pursuant to the applicable contract mechanism. A recurring question is whether EOT entitlements are to be determined...more
In Triple Point Technology v PTT, the Supreme Court of the United Kingdom has restored the orthodox position on how termination prior to completion of work affects the operation of a liquidated damages...more
[co-authors: Rhulani Matsimbi, and Kit Goodfellow]
Three pillars are at the heart of global efforts to boost sustainability and make our built environment cleaner, greener and more socially responsible: construction,...more
Estoppel and waiver are common arguments used to rebut the enforcement of time bar and notice provisions in construction contracts. However, these arguments have often seen limited success. Nevertheless, estoppel was...more
In the UK, disputes in the construction industry are rarely resolved through conciliation, with parties preferring recourse to adjudication, mediation, litigation or arbitration. However, a recent Australian case highlights...more
Variation powers under construction contracts typically contemplate work being authorised as a variation where it is instructed in writing. This can give rise to disputes over whether work is a "variation" if it is instructed...more
Construction contracts may be priced in a number of ways. For most contracts, even those which are "fixed price", there is usually scope for cost/price variability. Four cases from December 2020 highlight some of the...more
Can a valid claim notice issued, on time, referring to one contractual basis, be relied upon where a claim is ultimately pursued on a different ground? In the first authoritative case to consider this issue, the Hong Kong...more
Courts and arbitral tribunals in many jurisdictions have the power to order contractors to perform building works - to order "specific performance" of a construction contract. But these powers are rarely exercised. A recent...more
Recent insolvency law reforms in the UK, Singapore and Australia impact upon the ability of a party to a construction contract to terminate it due to the other party's insolvency...
...more
A recent Scottish case considers the contractual power to omit works and highlights key principles applicable to the question of whether omitted works can be transferred to another contractor -
The descoping or omission of...more
Main contractors often make claims against subcontractors for liquidated damages for delay. A question that sometimes arises is whether liquidated damages may be claimed by a main contractor where there is no corresponding...more
8/22/2020
/ Construction Contracts ,
Construction Industry ,
Contract Terms ,
Delay Claims ,
General Contractors ,
Liquidated Damages ,
Loss Allocation ,
No Damage For Delay ,
Singapore ,
Subcontractors ,
UK
Advance payment guarantees are commonly used in the construction industry. However, successful challenges to a demand made under an advance payment guarantee appear to be less common. This article looks at three recent cases...more
7/25/2020
/ Advance Payment Guarantees ,
Amortization ,
Banks ,
Condition Precedent ,
Construction Industry ,
Construction Litigation ,
Construction Project ,
Contract Terms ,
Default ,
Encashment ,
Engineering ,
Korea ,
Notice and Demand For Payment ,
Qatar ,
Saudi Arabia ,
Subcontractors ,
UK
Amending standard forms of construction and engineering contracts to change the risk level between the parties is a perennial issue. This, however, can lead to disputes due to amendments not clearly reflecting the intention...more
2/28/2020
/ Amended Forms ,
Construction Contracts ,
Construction Industry ,
Contract Terms ,
Engineering ,
FIDIC Contracts ,
General Contractors ,
London Technology and Construction Court (TCC) ,
Public Procurement Policies ,
Risk Allocation ,
Standard Form Contracts ,
UK
Restrictions on a contractor's rights to subcontract works are common across industry forms of contract, and breach of these provisions can have significant consequences for a contractor. In a recent Australian case, the...more
11/11/2019
/ Breach of Contract ,
Construction Contracts ,
Construction Industry ,
FIDIC Contracts ,
General Contractors ,
Non-Assignment Clauses ,
Restrictive Covenants ,
Risk Mitigation ,
Specific Performance ,
Standard Form Contracts ,
Subcontractors ,
UK
The case of Doosan Enpure Limited v Interserve Construction Limited represents a rare consideration by the English High Court of a dispute between members of a construction joint venture. The court found that Interserve was...more
10/14/2019
/ Breach of Contract ,
Construction Contracts ,
Construction Industry ,
Contract Disputes ,
Contract Terms ,
Interim Payments ,
Joint Venture ,
Land Developers ,
Profit Sharing ,
Real Estate Development ,
Risk-Sharing ,
UK
In Thio Keng Thay v Sandy Island Pte Ltd [2019] SGHC 175 the High Court of Singapore confirmed that an employer may recover damages for rectifying defects even when it has done so in breach of a contractual defects...more
In a recent case, the Federal Court of Australia confirmed that it will enforce a "no damage for delay" clause, including when delay occurs as a result of a variation under a contract....more
A recent decision by Singapore's highest court has held that a contractor must first establish that it is entitled to payment under the contract in order to claim progress payments under the Security of Payment Act, raising...more