Congratulations! You have just obtained an adjudication certificate. What comes next if the respondent refuses to pay the adjudicated amount? Knowing how to enforce SOPA debts is essential for construction industry participants who want to exercise their right to receive progress payment. Two potentially powerful options available to claimants are…
4 April, 2024
La Niña And Its Effect On Contractors
The last La Niña (wet period) lasted for more than 1 year and ended in March 2023. After a few months of a neutral period, El Niño (dry period) started in September 2023. El Niño was expected to persist until at least the second quarter of this year. However, based…
28 February, 2024
Consequential Loss: The Approach In NSW
Dangers of drafting liability clauses Hadley & Anor v Baxendale & Ors EWHC J70 (Hadley v Baxendale) was a landmark decision in English law defining the classification of different types of loss. However, both the UK courts and academia and the Australian courts and academia have been pursuing modified and…
9 February, 2024
Changes To The Strata Building Bond And Method Of Calculation
The Building Legislation Amendment Act 2023 (NSW) The Strata Building Bond & Inspections Scheme (SBBIS) was introduced in 2018 to provide some protection to owners’ corporations in relation to defects. On 21 November 2023, the NSW Parliament passed the Building Legislation Amendment Act 2023 (NSW) (BLA) which makes 2 significant…
7 December, 2023
You Have One Shot
Serving a Payment Claim Post-Termination Introduction Section 13(1)(c) of the Building and Construction Industry (Security of Payment) Act 1999 (SOPA) allows contractors to serve one final payment claim after termination of a construction contract. In Taylor Construction Group Pty Ltd v Adcon Structural Group Pty Ltd NSWSC 723 (Taylor v…
1 December, 2023
Be Wary of Your Payment Schedules Under the SOP Act
Turnkey Innovative Engineering Pty Ltd v Witron Australia Pty Ltd NSWSC 981 In the recent Supreme Court case of Turnkey Innovative Engineering Pty Ltd v Witron Australia Pty Ltd NSWSC 981, the Court emphasised how a respondent’s payment schedule must provide the amount and any reasons for withholding. The respondent’s…
1 December, 2023
Using DOCAS To Preserve SOPA Claims In Administrations?
Commercial Context Construction companies are often thinly capitalised and do not hold significant real property or other assets. Often their most significant (and sometimes their only) assets are unpaid progress claims arising from construction work undertaken prior to entering into external administration. Progress claims however can be difficult to recover.…
30 November, 2023
Procedural Fairness In Adjudication
Demex Pty Ltd v McNab Building Services Pty Ltd NSWCA 261 The recent NSW Court of Appeal decision in McNab Building Services Pty Ltd v Demex Pty Ltd NSWCA 261 considered an appeal of a NSW Supreme Court decision quashing an Adjudicator’s decision under the Building and Construction Industry Security…
22 November, 2023
How to Prevent Bank Guarantees being Called Upon
Bank guarantees are a familiar presence in construction contracts. They are seen to be “as good as cash” and the holders of bank guarantees call on the guarantees when there is a dispute with a contractor or subcontractor providing the bank guarantee. Bank guarantees are often expressly stated to be…
22 November, 2023
Jurisdictional Errors of an Adjudicator
Miller v LMG Building Pty Ltd NSWSC 995 Introduction The case of Miller v LMG Building Pty Ltd NSWSC 995 is a reminder of the obligations of an adjudicator when making a determination under the Building and Construction Industry Security of Payment Act 1999 (NSW) (Act). Relevant facts On 30…