DECEMBER UPDATE
Trends in contract drafting – pandemics and ports
It is interesting to meet people in other fields and discuss their perspectives on the economy and the world.
I recently met a renowned virologist and discussed the risk of another pandemic. This topic interests me as I have been including pandemic clauses in my clients’ contracts without debate or amendment. I had been doing so in the misguided belief that a pandemic is unlikely to occur in the near future and governments would not likely shut the economy down again. Well, I could not be more wrong. I have been advised that another pandemic is inevitable (and sooner than we imagine) and that isolation may be the only method to control it.
Armed with this new information I now either add a pandemic clause to major contracts (if I act for the contractor) or vigorously reduce entitlement of any proposed clause (if I act for the principal). Pandemics are not a thing of the past as I had believed.
I also recently attended a party of a senior ranking figure (and good friend) from the Australian Defence Force. I was taken aback by his views on the effect of any war on our shipping lanes, particularly the effect of reduced petroleum on our economy.
With that conversation in mind, it is not surprising that clauses that deal with port delays arising from industrial action or war are now the latest trend. I know of one major contractor that insists on a force majeure clause and extension of time clauses (and definitions) that cover these specific events.
If your company is entering a significant contract that will span the next three to five years consider the above issues carefully.
These types of clauses now represent the latest trend in contract drafting.
Brett Vincent, Partner
DUNCAN MACFARLANE JOINS VINCENT YOUNG
Special Counsel
We are proud to announce that Duncan Macfarlane has joined Vincent Young as Special Counsel.
Duncan has extensive experience both as a solicitor and commercial barrister, with a focus on building and construction disputes.
During Duncan’s time as a barrister, Duncan advised on many building and construction disputes and he has appeared – led and unled – in the New South Wales Court of Appeal, NSW Supreme Court, District Court, Local Court as well as in NCAT, arbitrations (domestic and international), mediations and expert determinations.
According to Brett Vincent: “I have known Duncan for many years and I am thrilled that he is joining the Vincent Young team. Duncan is a fantastic fellow to deal with and he has a deep understanding of construction law. His skillset and experience will help us expand our construction services even further. We are blessed to have him join VY.”
VY CLIENT TRIUMPHS
Supreme Court win
Vincent Young is delighted to announce that its clients, United Beverage Co-Packers Pty Ltd and RJ8 Enterprises Pty Ltd, wholly succeeded in proceedings brought in the Supreme Court of NSW. Not only did UBC and RJ8 receive judgment for their unpaid invoices, those companies also successfully defended a sizeable cross-claim of about $2 million in its entirety. The cross-claim included claims for breach of contract, misuse of confidential information, breach of a restraint of trade and claims for allegedly defective products. All claims in the case were decided in UBC and RJ8’s favour.
Vincent Young is a staunch ally to its clients. With Vincent Young’s dedicated commercial and insolvency team, UBC and RJ8 received timely and strategic advice and the support the companies needed to see the litigation through to judgment. But do not just take our word for it, read what Mr Gordon, director of UBC and RJ8, had to say:
“Careful attention to details, dedication and well executed reasoning of law led to our repelling of the legal challenge in the Supreme Court. A great victory that we will celebrate for some time.”
If you need assistance with a dispute, reach out and speak to the team.
CONSTRUCTION
The Ever Expanding Personal Duty Of Care Under The DBPA
Introduction
Section 37 of the Design and Building Practitioners Act 2020 (NSW) (DBPA) imposes a statutory duty of care on those who carry out construction work in or related to a building to avoid economic loss to the owner or subsequent owner resulting from defects.
Section 37 has not been amended since its commencement, but its application is being continuously increased by the Courts. This article explains the increasing risk of liability to individuals in control of building works.
COMMERCIAL & INSOLVENCY
A court order does not create a security interest
The case of Laurus Group Pty Ltd (admin apptd) v Mitsui & Co. (Australia) Limited (No. 2) [2023] VSC 412
Facts
Mitsui and APT were parties to litigation. Mitsui made an application for security for costs against APT. The Court granted the application and ordered APT to pay $30,900 into Court on 29 June 2021 (First Security for Costs Deposit).
About a year later, after the parties attempted mediation, Mitsui and APT filed consent orders that APT pay a further $100,000 into Court (Second Security for Costs Deposit).
PROPERTY & PROJECTS
The newly introduced Property Developers Act 2024 (ACT)
Introduction
The recent introduction of the Property Developers Act 2024 (ACT) (the Act) will change the landscape of residential property development in the Australian Capital Territory. This article provides an overview of the most pertinent provisions and legislative effect.
Commencement of the Act
The Act has a staggered commencement.
Provisions relating to rectification orders, stop work orders and undertakings take effect on and from 11 July 2024 and apply to developments which received approval on or after 11 July 2024. The remainder of the Act has not commenced. Regulations and a Code of Practice are yet to be released