construction contract low
Mo7amed
Takeawayfromthefirstlecturewithvoiceover.pptxTake away from the first lecture
Let me see if I can give you some help.
How much you take of this material is dependent on what mark you want to achieve and how much time you have.
First there is a great deal, unfortunately, of preparation reading.
1. You need to read the first three chapters of the prescribed textbook.
2. You need to read my power points.
3. You need to review my guide material posted on canvas- the prime pump material.
4. Then you need to read all three again with the assignment question in mind.
{You may also find it helpful to view the recorded lecture}
During the revisiting of the material
1. Make notes, and/or dot points.
2. Start to make your plan - how to structure your answer.
3. When reviewing the material consider if there is contrary material available. For instance the duty of care that a builder has to a subsequent purchaser in constructing a domestic building compared with a commercial building.
4. When reviewing material see if you can find other cross-references. For instance some of section 8 warranties of the Domestic Building Contracts Act are similar to the warranties imposed by the ACL See ACL sections 54 and 55).
See page 54 of the prescribed textbook.
How to source material
1 The E-book is a significant research shortcut tool.
a) If you click on the highlighted cases that will immediately take you to the case reports.
b) If you click on the highlighted paragraph references to a statute or standard form contract you will be taken to the paragraph in the text.
c) Some of the textbook footnotes have references to relevant journal articles.
d) In the section of the book titled Further Reading on page 397 onwards there are references to journal articles under topic headings.
How to source material 2
2. The library is a good source of journal articles and case reports.
( When I found journal articles-
-I went to page 37 of the prescribed textbook to find the full title of the publication
-and looked at the articles and I collated them by journal
-for instance I found that the Building and Construction Law Journal [BCL] referred to articles discussing Pavey & Matthews case, Bryan v Maloney, and an article on proportionate liability)
- in the library I found the best way to find an article was to go to the volume reference of the journal and then scroll down and find the journal article.
Law case reports are listed under the relevant court.
http://rmit.libguides.com/c.php?g=335979&p=2261051
How to source material 3.
3. The best source for statutes and the statutory sections is Austlii
Selection of cases.
1. Consider the cases I have referred and discussed.
2. Consider cases that have the most discussion in the textbook.
3. Consider if the case authority is binding or persuasive authority.
4. Consider if the case arises from the interpretation or application of a statute.
5. Look for cases that have been used as a precedent cases or have been distinguished. For instance in Woolcock’s case, the case of Bryan v Maloney was distinguished.
Selection of statutes
1.Consider statutes and statutory sections which have considerable discussion in the textbook.
2. Consider statutes that have been interpreted or applied in court and there is a case report
Selection of journal articles
Select a journal article that is written about a statute or a case you have chosen to discuss.
Regarding the following next eight slides.
I have chosen some extracts from the prescribed textbook and placed them in the following PowerPoint slides to help you find a pathway to start question one of your assignment.
In one of the extracts is a reference to a clause in a standard form contract. You may find a way to use this. For instance you could compare this with section 31 of the Domestic Building Contracts Act.
In another slide I have given you links, to where there is consideration of one of the current pressing building construction problems- where non-compliant outside cladding has been used.
AS 2124-1992 General conditions of contract.
6 EVIDENCE OF CONTRACT
6.1 Contract in Absence of Formal Instrument of Agreement
Unless a Formal Instrument of Agreement is executed by the parties, the agreement in writing between the parties for the execution of the work under the Contract, including documents or parts of documents to which reference may properly be made to ascertain the rights and obligations of the parties, shall evidence the Contract.
6.2 Formal Instrument of Agreement
If the conditions of tender require a Formal Instrument of Agreement, the Principal shall prepare in duplicate a Formal Instrument of Agreement and shall, within 28 days after the
45 Date of Acceptance of Tender, forward it to the Contractor with a request that it be executed.
Within 14 days after being requested in writing by the Principal so to do, the Contractor shall execute both copies of the Formal Instrument of Agreement in the manner directed in writing by the Principal and return them to the Principal.
50 Within 14 days after receipt from the Contractor of the two copies of the Formal Instrument of Agreement duly executed by the Contractor, the Principal shall execute both copies, have them stamped (unless they are exempt from duty) and forward one copy to the Contractor.
The Superintendent may extend the periods under Clause 6.2 by notice in writing to the
55 parties.
The Principal shall bear the cost of any stamp duty payable on the Contract.
“ Construction law in Australia” fourth edition by Ian Bailey page 37
| Publication | Abbreviation | Coverage | Available online? |
| Australasian Journal of Construction Economics and Building | AJCEB | International – articles on construction topics generally | ✓http://epress.lib.uts.edu.au/ |
| Australian Construction Law Bulletin | ACLB | Primarily Australian but some international – articles and case notes | ✓LexisNexis |
| Australian Construction Law Newsletter | ACLN | Primarily Australian but some international – articles and case notes | ✓By subscription and via SoCLA and AustLII |
| Building and Construction Law Journal | BCL | Primarily Australian but some international – articles and case reports | ✓Thomson Reuters |
| Building Dispute Practitioners Society Newsletter | BDPSNews | Primarily Australian but some international – articles and case notes | N |
Law reports and journals
“ Construction law in Australia” fourth edition by Ian Bailey page 403
CHAPTER 6 − LAW OF TORTS
Liability in negligence to future owners of buildings
Bell M and Jocic W, “Negligence Claims by Subsequent Building Owners: Did the Life of Bryan End Too Soon?” (2017) 41(1) Melbourne University Law Review 1
Colmer K and Grace T, “Buyer Beware” (2011) 22(8) ACLB 102
Connor S, “Protection of the Rights of Purchasers of Commercial Properties Where Latent Defects Arise: Assignment of Ongoing Rights under Building Contracts” (2005) 21 BCL 248
Remedies generally
See further reading for ch 2
Proportionate liability
Creedon M and Bevan E, “The Queensland Proportionate Liability Regime: When Does It Apply to Claims for Breach of Contract?” (2015) 27(2) ACLB 26
Hayford O, “Proportionate Liability: Its Impact on Contractual Risk Allocation” (2010) 26 BCL 11
Greenham P, Morrow K and Naylor S, “Single Line Accountability! Proportionate Liability and Joint and Several Liability” (2011) 6(1) CLInt 6
Horan T, “Proportionate Liability: Towards National Consistency” (Report for National Justice CEOs, September 2007)
Levin D, “Proportionate Liability in Arbitrations in Australia?” (2009) 25 BCL 298
McDonald B, “Indemnities and the Civil Liability Legislation” (2011) 27 Journal of Contract Law 56
Quinn S, “Proportionate Liability: Whilst the Philosophy May Be sound, Will the Desired Outcomes Be Achieved in Practice?” BDPS News (July 2007) 23
“ Construction law in Australia” fourth edition by Ian Bailey.page 400
Consumer protection and trade practices
Calver R, “The Australian Consumer Law: Impacts on the Construction Industry” (2010) 135 ACLN 36
Corones S, The Australian Consumer Law (3rd ed., Lawbook Co, 2016)
Draper K, “Unfair Contract Terms – Construction Contracts with Consumers” (2011) 23(2) ACLB 21
“ Construction law in Australia” fourth edition by Ian Bailey page 402
Quantum meruit
Andrew R, “The Fabrication of Unjust Enrichment in Australian Law: Pavey & Matthews v Paul Reassessed” (2010) 26 BCL 314
Baron A, “Rectifying Defects in Legal Doctrine (the Alignment of Historical Curiosities with Modern Legal Principles)” (2011) 27 BCL 72
Hicks F, “Quantum meruit and Repudiation” (1998) 14 BCL 445
“ Construction law in Australia” fourth edition by Ian Bailey page 21
Decisions of courts outside the hierarchy will be of relevance in deciding cases. Decisions of the Privy Council, the United Kingdom Supreme Court (until 2009, the Law Lords within the House of Lords), the English Court of Appeal and the High Court of England will be of great persuasive value, and until recently Australian courts were quite prepared to follow their decisions. Lately, however, the High Court of Australia has shown a disinclination to follow the approach taken by the English courts, particularly in the areas of negligence. For example, in Bryan v Maloney,19 for example, the High Court expressly did not follow the House of Lords in D & F Estates Limited v Church Commissioners for England20 and Murphy v Brentwood District Council21 in relation to the duty of a builder to a subsequent purchaser of a house. The High Court has since refined the law further, in Woolcock Street Investments Pty Ltd v CDG Pty Ltd,22 and further still in Brookfield Multiplex Ltd v Owners Corp SP 61288.23
Judges in Australian courts will entertain arguments based on the decisions of foreign jurisdictions such as New Zealand, the United States and Canada but generally give lesser weight to those principles. They often are highly influential, however, in the reasoning of the High Court which strives to take due account of relevant developments in the law around the world. Therefore, if a foreign development is adopted by the High Court, it filters down into inferior Federal and State/Territory courts.
“ Construction law in Australia” fourth edition by Ian Bailey page 23
CONTRACT DOCUMENTS
[9.120]
Most building contracts are recorded in writing, but there is no reason, in general, why they cannot be oral. Some contracts are, however, required to be in writing to be enforceable by the contractor, particularly contracts for domestic or residential building work.36 Depending on the terms of the legislation, the contractor may nevertheless be able to recover payment for work performed under the unenforceable contract on the basis of unjust enrichment, see also Pavey & Matthews Pty Ltd v Paul,37 and see Gray (Constructions) Pty Ltd v Hogan38 where the Court accepted that the valuation of a claim made “on a quantum meruit” for building goods and services called for determining a reasonable remuneration for the builder which included a reasonable profit element.
A current example of the application of apportionment liability legislation.
https://www.holdingredlich.com/blog/vba-thwarted-in-battle-against-combustible-cladding
https://architectureau.com/articles/judge-finds-architect-proportionately-liable-for-lacrosse-fire-damages/
“ Construction law in Australia” fourth edition by Ian Bailey page 234
The conditions of tendering and the conditions of contract may make provision for preliminary agreements.25
23Holman Construction v Delta Timber Co [1972] NZLR 1081.
24Cox Constructions Pty Ltd v Decor Ceilings Pty Ltd (No 2) [2005] SASC 483, (2007) 23 BCL 347.
25See, eg, AS 2124-1992 cl 6.1; AS 4000-1997 cl 6.
26Masters v Cameron (1954) 91 CLR 353.
27Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622.
