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Australia Construction Industry Construction Contracts

Herbert Smith Freehills Kramer

Time’s Up: NSW Court of Appeal Reminder About the Importance of Understanding and Hitting Security of Payment Deadlines

The NSW Court of Appeal in Roberts Co (NSW) Pty Ltd v Sharvain Facades Pty Ltd (Administrators Appointed) [2025] NSWCA 161 has confirmed that, under the Building and Construction Industry Security of Payment Act 1999 (NSW)...more

K&L Gates LLP

WA Regulation of Performance Security in Contracts

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All participants in the construction industry should be aware of legislative provisions that apply to performance security in more recent construction contracts for projects in Western Australia. The changes create new...more

Jones Day

Pay Now, Argue Later—Even if the Contractor is Going Bust: The NSW Security of Payment Regime and Distressed Contractors

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In Short - The Situation: Security of payment ("SOP") legislation across Australia provides a "pay now, argue later" regime for payment claims by contractors in the construction industry. The legislation expressly...more

Jones Day

No Exceptions to Procedural Requirements Under Australia's Security of Payments Legislation

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The Situation: For over a decade, all Australian jurisdictions have had in place security of payment ("SOP") legislation—statutory regimes providing for the submission and payment of progress claims, and resolution of payment...more

Jones Day

An Update on Insolvency in the Australian Construction Industry

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The construction sector in Australia has long been affected by insolvency and broader liquidity issues. In the last year, construction companies accounted for 26% of businesses that entered into insolvency, and insolvencies...more

K&L Gates LLP

Western Australia Set for Commencement of New Progress Payment Regime Under the Building and Construction Industry (Security of...

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Commencing from 1 August 2022, Western Australia will adopt a new statutory progress payment regime under the Building and Construction Industry (Security of Payment Act) 2021 (WA) (WA SOP Act). The WA SOP Act will change...more

White & Case LLP

Managing construction risks in Asia-Pacific: Australia

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Australia is a highly advanced mixed economy, but investors – often drawn to the country's economic stability and resilience – should be aware of certain clauses that typically appear in construction contracts. Australia...more

Jones Day

Western Australia Proposes Building and Construction Industry (Security of Payment) Bill 2020

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The Western Australian government has sought industry comment on a suite of significant proposed reforms to the WA security of payment regime ("SOP"). If passed, the Bill represents the most significant reform to the...more

King & Spalding

Tokyo Dispute Resolution & Crisis Management Newsletter – June 2020: Coronavirus & Construction Contracts - Causation, Force...

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Large construction projects, by their very nature, carry significant commercial and financial risk for the parties involved. Contributing to this overall risk is the reality that an act of nature or other circumstance beyond...more

K&L Gates LLP

Changes to the Security of Payment Act Commence Today – Are you Ready?

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The changes to the Building and Construction Industry Security of Payment Act 1999 (NSW) (Act) commence on 21 October 2019. The long awaited changes seek to improve the flow of payments to subcontractors and clarify the...more

White & Case LLP

High Court of Australia clarifies the availability of the remedy of restitution on a ‘quantum meruit’ basis

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a) On 9 October 2019, in the judgement of Mann v Paterson Constructions Pty Ltd [2019] HCA 32 (Mann), the High Court of Australia clarified the ability for contractors to claim on a quantum meruit basis....more

White & Case LLP

'Common Law Common Sense' delay analysis

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In White Constructions Pty Ltd v PBS Holdings Pty Ltd [2019] NSWSC 1166 the Supreme Court of New South Wales, Australia, rejected both parties' expert delay analysis and the methodologies on which they were based, holding...more

White & Case LLP

Construction contracts: "No damage for delay" clause enforced

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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

K&L Gates LLP

NSW Court of Appeal Quashes Ostwald's Adjudication Determination and Holds That Façade Continues to be 'Plainly Wrong'

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On 12 February 2019 the NSW Court of Appeal upheld an appeal by Seymour Whyte Constructions Pty Ltd (Seymour Whyte), represented by K&L Gates, relating to proceedings concerning a claim for a substantial progress payment...more

Jones Day

The End of the "Deemed Liability" Adjudication in Western Australia

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The Problem: The Construction Contracts Act 2004 (WA) contains a number of provisions that are to be implied into construction contracts that are silent as to those matters. These implied terms have been a steady source of...more

Jones Day

Recent Project Dispute Cases in Australia

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The Situation: Statutory adjudications continue to be deployed readily on projects in the construction and engineering fields. The Result: There have been a host of cases on the operation and scope of such adjudications in...more

Jones Day

Australia: Adjudicators’ Security of Payment Determinations Not Reviewable for Errors of Law

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The Situation: The High Court of Australia has, for the first time, confirmed that determinations by adjudicators appointed under security of payment legislation are not reviewable for errors of law alone. The Result: The...more

K&L Gates LLP

Navigating the Insolvency Reforms - Impending Changes to Contractual Termination Rights

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Last year the government introduced the most significant reforms to Australia's insolvency regime for over three decades. Among other changes, reforms that will come into effect on 1 July this year (or earlier by...more

K&L Gates LLP

The High Court Weighs in on Adjudication Determinations - Errors of Law Are Not Reviewable

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The High Court has unanimously confirmed in the decision of Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4 (Probuild) that Courts do not have the power to review adjudication determinations made...more

K&L Gates LLP

Construction Update - Last Ditch Attempt to Kill Off Building Code Fails, the ABCC calls the CFMEU's Bluff on 'Safety' Issues and...

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In this construction update, we look at some recent developments in relation to the Code for Tendering and Performance of Building Work 2016 (Code) and the race to achieve Code compliance before 1 September 2017. We also...more

K&L Gates LLP

The Early Bird Catches the Worm – Or Does it?

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The New South Wales Supreme Court has recently considered the effect of deeming provisions in respect of early payment claims made under the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOP Act) in...more

K&L Gates LLP

Court Turns "Practical Completion" on its Head

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The New South Wales Court of Appeal has recently considered the concept of "practical completion" in Abergeldie Contractors Pty Ltd v Fairfield City Council [2017] NSWCA 113. The decision is likely to have far reaching...more

K&L Gates LLP

Blink and You'll Miss It - NSW Defect Bond Scheme Postponed and Email Service Gets the Green Light under the NSW SOP Act

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The NSW Parliament has today passed the Electronic Transactions Legislation Amendment (Government Transactions) Bill 2017 (the Bill). The Bill has broad reaching implications for many participants in the building and...more

Jones Day

Projects Disputes in Australia: Recent Cases

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Since late last year, there have been several major decisions from Australia's highest courts on important issues for stakeholders in the construction, mining and infrastructure industries. Below, we provide a summary. Some...more

K&L Gates LLP

Status quo Returns: the High Court Weighs in on Reference Dates and the NSW Court of Appeal Clears up the Grounds for Challenge

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The decisions of the High Court in Southern Han Breakfast Point Pty Ltd (In Liq) v Lewence Construction Pty Ltd [2016] HCA 52 and the New South Wales Court of Appeal in Shade Systems Pty Ltd v Probuild Constructions (Aust)...more

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