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…
28 March, 2024
The Question: Will The Court Order A Separate Question?
Typically, the standard approach in litigation is to resolve all issues together in a single hearing. However, there are exceptions acknowledged by the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) where a specific issue may be decided as a separate question before addressing the remaining disputes in the legal proceedings.…
8 March, 2024
Personal Liability of Administrators
The personal liability arising under Division 9 of Part 5.3 A of the Corporations Act 2001 (Cth) (Act) often provides one of the greatest risks facing administrators on accepting an appointment. These risks can limit restructuring options available through a voluntary administration as an administrator is unlikely to want to…
29 February, 2024
Substituting Creditors – Why You Should Join A Winding Up Petition
What you need to know Where a company that owes you money is subject to a winding up application brought by an unrelated third party, you should always seek to join the proceedings as a supporting creditor. If you are a supporting creditor, you have a right to apply to…
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…
10 November, 2023
Recourse To Security Based On A Bona Fide Claim
Total Construction Pty Ltd v Catholic Healthcare Limited NSWSC 585 It is common for bank guarantees (BGs) to be used as a form of security to secure the performance of a contractor’s obligation in a construction contract. A principal’s right to have recourse to the BGs is often governed by…
22 September, 2023
Recovery of judgment debts – Garnishee and Writs
If you have obtained a judgment in your favour and the judgment debtor has failed to pay the judgment amount to you, what are your options? This article looks at two ways you can enforcement a judgment: a garnishee order and a writ. Garnishee order A garnishee order imposes an…
1 June, 2023
Clawback of incentives remains an issue
The clawback of incentives and their enforceability remains a live issue with the courts treating clawback clauses as a penalty in certain circumstances. This was recently reinforced in Alamdo Holdings Pty Ltd v Croc’s Franchising Pty Ltd (No 2) NSWSC 60 (Alamdo). In the context of commercial leasing, consideration should be given…
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…
Case Note on V601 v Probuild VSC 849 Background This case concerns a development of five separate buildings comprising commercial suites and residential apartments. V601 was the developer. V601 engaged Probuild to design and construct the project under an amended contract form of AS4902-2000 (Contract). Issues The issues concerned time-related…