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Negotiations regarding variations

CLIENTRigging Contractor (“Subcontractor”) OTHER PARTYHead contractor (“Head Contractor”) CONTRACTContract to install structural steel to a recreational facility in Melbourne PAYMENT CLAIM$80,434.76 including GST PAYMENT SCHEDULE$46,141.00 The Head contractor withheld $80,343.76 for the recreational facility and withheld $61,055.54 on another job that was already completed. The initial payment schedule stated the payment proposed was $46,141.00. The difference related […]

Security of payment technicalities, service

CLIENTStructural Steel Contractor (“Subcontractor”) OTHER PARTYHead contractor (“Head Contractor”) CONTRACTConstruction of a large grocery chain in Melbourne PAYMENT CLAIM$249,723.52 including GST PAYMENT SCHEDULE$110,884.50 ADJUDICATION AWARD$249,723.52 including GST BACKGROUNDThe contract was for the steel detailing, supply and installation of structural steel for a commercial shopping centre. The Head Contractor had been engaged using a design and […]

Letter of Demand

CLIENTTimber Flooring Contractor (“Subcontractor”) OTHER PARTYHead contractor (“Head Contractor”) CONTACTInstallation of Jarrah flooring to new dwelling PAYMENT CLAIM$8,840.50 including GST OUTSTANDING AMOUNT$2,210.00 The Subcontractor was contracted for the supply and installation of Jarrah flooring. The Head Contractor made payment for supply. After completion, the Head Contractor failed to respond with a time for payment. The […]

Allegations of defects and backcharges

CLIENTStructural Steel Contractor (“Subcontractor”) OTHER PARTYHead contractor (“Head Contractor”) CONTRACTConstruction of an extension to a high school in Melbourne PAYMENT CLAIM$173,922.63 including GST CONCLUSION1. Variations are claimable if the contract provisions for variations are followed. If an instruction to complete a variation is given, the head contractor is liable for the cost. 2. Backcharges are […]

Adjudication flow chart

Key risk areas in the construction industry

VARIATIONS Once a site direction is given by a builder, a subcontractor has no choice but to complete the variation; often before the variation amount is approved. Timing is essential to ensuring variations are recoverable under the Security of Payments Act (specifically, variations over 10% of the contract should be monitored carefully). There are 2 […]

Misleading Conduct – Off-the-plan Apartment with an Artist’s Impression

The judgment of Ripani v Century Legend Pty Ltd [2022] FCA 242 found:A purchaser can rescind a contract of sale based on a misleading and deceptive representation based on inaccurate marketing material. Key points The Court ordered the developer to return the deposits, plus pay damages to the purchasers. Take-Away Points Disclaimers must not use ‘vague, […]

Enterprise Bargaining Agreement

Transport Workers’ Union of Australia v Transit (NSW) Services Pty Ltd [2022] FWC 2334 (link) Case Summary Decision Key takeaways

Case Study: Shamrock Cabinets Pty Ltd v Hutchings (Building and Property)

Shamrock Cabinets Pty Ltd v Hutchings (Building and Property) [2022] VCAT 1156 Case Summary: Key Takeaways: Need help? If you are unsure whether a MDB Contract is required for your job or if you meet registration requirements, seek legal advice. We can assist with drafting contract templates specific to your trade.

Top Tips to Minimise your Risk of Preference Payments

What are preference payments? Preference payments are payments made by an insolvent company that give one creditor an unfair advantage over other creditors. Basically, in the lead up to liquidation, one creditor is paid more than another. If this is the case, a liquidator may be able to recover (claw back) these payments, provided they […]

Avoiding disputes with Variations

It’s no secret that building can often be a bit of an experiment.With so many factors out of your control – like the weather and changing site conditions – things can’t always go to plan.If this happens, having a good process for requesting and documenting variations is vital. What is a variation? Variations are a […]

September video update

This month we talk about variations and the importance of determining whether various factors are considered variations under your contract. We also discuss our top tips for avoiding payments being deemed ‘preference payments’ liable to be clawed back by a liquidator. In addition, we discuss the case of Re Amville Constructions Pty Ltd [2022] VSC […]

Case Summary: Re Amville Constructions Pty Ltd [2022] VSC 65

Recently, we received the judgment in Re Amville Constructions Pty Ltd [2022] VSC 65, involving a dispute between our client, a subcontractor, and the other party, a builder.We acted for the defendant L.S. Bricklaying (Vic) Pty Ltd (“L.S. Bricklaying”). Summary of Case Facts Contract was for a domestic building project involving three unitsL.S. Bricklaying served […]

August video update

This month we discuss the recent Supreme Court of Victoria case of Re J Build Developments Pty Ltd. This case clarifies how statutory demands interact with the Security of Payments legislation (SOP Act). We also talk about the importance of Shareholder Agreements in reducing the risk of shareholder disputes. In addition, we offer five tips […]

Top Tips for Preparing for Legal Proceedings

Most construction disputes arise from defects, variations and delay. To ensure that you have the best chance at recovering funds, we have included some tips below. Tip number 1: Contemporaneous evidence Have everything documented in writing at the time the event occurs!When you’re working on a project, it is common to be given updated directions […]

Shareholder Agreements: A guide

Over the last few months, LPF has been engaged to act in some shareholder disputes. To minimise the risk of shareholder disputes, we highly recommend that all companies have a shareholder agreement prepared by solicitors and have the agreement regularly updated. What is a shareholder agreement? A shareholder agreement is a legally enforceable contract between […]

August 2022 Legal Update

The recent Supreme Court of Victoria handed down judgment on 4 August 2022 in:Re J Build Developments Pty LtdJ Build Developments Pty Ltd successfully disputed a statutory demand for payment of debt. What is a statutory demand? This is a formal demand for payment of a debt, if ignored, can lead to a winding up application against […]

Limitation Period of a Building Action Starts from Issue Date of first Occupancy Permit

In the recent decision by the Victorian Supreme Court of Appeal in Lendlease Engineering Pty Ltd v Owners Corporation No 1 [2022], VSCA confirmed that the 10-year limitation period for a building action for defective building work starts as soon as the first occupancy permit is issued. This means that an owner can only sue […]

Proposed changes to the Building Act and its Effects

The Building Act 1993 is currently being reviewed by the Victorian Government, who stated: The Victorian Government is committed to delivering a building system that provides safe, compliant and durable housing and buildings. This requires a workforce of skilled and experienced practitioners and a strong and viable system of regulation to enforce compliance. This Bill […]

Building Party must provide Insurance over and an Adjoining Property

In a recent case at the Supreme Court in Victoria, the judgment of Hronopoulos v Building Appeals Board 2022 found that there is a difference between third party liability insurance and property damage insurance. Key points Building parties must provide insurance that covers adjoining property owners and where the adjoining property owners can claim Having […]

Creditor-defeating Dispositions

A creditor defeating disposition occurs when a company, who is being wound up, transfers property or other assets were less than market value. The new s588FDB of Corporation Act 2001, intends to prevent companies from disposing of assets prior to liquidation and passing those assets for less than market value. The liquidator can seek to […]