Defects Archives - Vincent Young

Adjudication Building Construction Defects Security of Payments

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…

Victoria Caldwell

Building Construction Defects

7 August, 2023

The Onus And Evidentiary Threshold For Combustible Cladding Clarified

Owners SP 92450 v JKN Para 1 Pty Ltd NSWCA 114 The Court of Appeal (CA) recently clarified the onus and evidentiary threshold for proving combustible cladding claims, making it easier for claimants to establish the liability of builders and developers. In short: a claimant no longer needs to show…

Vincent Young

Building Construction Defects

21 July, 2023

Defect Rectification Costs – Are Betterment Claims Allowed?

Defects commonly occur when a contractor fails to carry out the works according to the plans and specifications required by a construction contract. In such a situation, the contractor is liable to rectify the defects. If the contractor fails to rectify the defects, the principal can claim damages from the…

Vincent Young

Commercial Construction Contracts Defects Litigation

22 May, 2023

Standstill Agreements Pending Negotiations

Price v Spoor HCA 20 (Price v Spoor) Contractors with defects claims against subcontractors often commence litigation prematurely to preserve their claims from being time-barred. This occurs despite the costly nature of litigation and its potential to undermine settlement negotiations. The High Court case of Price v Spoor has confirmed…

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Building Construction Defects Litigation

19 April, 2023

Proving Causation Against Third Party Professionals In The Building Industry

The case of Mistrina Pty Ltd v Australian Consulting Engineers Pty Ltd NSWCA 223 (Mistrina) considers the current state of the law with regard to proving causation where a party claims loss against a third party based on allegations of misleading and deceptive conduct. In the building and construction industry, the…

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Building Construction Defects Law Projects Property

12 April, 2023

Application of Limitation Periods to the Statutory Duty of Care under the Design and Building Practitioners Act

The introduction of the Design and Building Practitioners Act (DBPA) represents a tremendous reform for the construction industry. The duty of care imposed by section 37 has the potential to impact both businesses and individuals significantly. Industry stakeholders should be aware of the limitation periods applying to this duty. Relevant…

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Building Construction Defects

23 February, 2023

Recovering Damages When a Contractor is Terminated

Case note - Heavy Plant Leasing Pty Ltd (in liquidation) v McConnell Dowell Constructors (Aust) Pty Ltd (No2) When a contractor has failed to complete their contracted works and is terminated, the principal will have to engage another contractor to finish the job and then claim the costs to complete…

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Building Construction Defects

14 February, 2023

Duty Of Care, Where Does It Stop?

A Case Note on Roberts v Goodwin Street Developments Pty Ltd NSWCA 5 Extension of the Duty of Care under DBPA The Supreme Court in Goodwin held that the coverage of duty of care under section 37(1) of the Design and Building Practitioners Act 2020 (NSW) (DBPA) extends beyond residential…

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Building Construction Defects

26 January, 2023

Contractors Beware – NCAT Decision on Work Orders and The Application of Margins

Case Note: Patel v Southern Cross Joinery Pty Limited NSWCATCD 162 The NSW Civil and Administrative Tribunal (NCAT), unlike any other Court, can make costs orders and work orders. Contractors must behave professionally when carrying out construction works. Otherwise, Contractors may have costs ordered against them, rather than a…

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Building Construction Defects Strata

23 January, 2023

What is the evidentiary threshold for combustible cladding?

In our previous article published this October titled, “Governments react to combustible cladding following the Grenfell fire?”, we discussed NSW and UK government reactions to combustible cladding post-Grenfell. Here, we ask what evidence is required to determine whether the builder or developer is liable to replace retrospectively-banned cladding. Biowood…

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