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Building Construction Security of Payments

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…

Victoria Caldwell

Commercial Contracts

5 December, 2023

Restraint of trade clauses in business sale agreements – What NOT to do

Restraint of trade clauses in business sale agreements must be drafted with enough specificity to avoid being struck out by the Court as unreasonable. This article will provide a few pointers on what not to do when drafting restraint clauses in business sale agreements. What is a restraint of trade?…

Victoria Caldwell

Building Construction Security of Payments

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…

Victoria Caldwell

Commercial Contracts

1 December, 2023

Unfair Contract Terms Significantly Expanded. Don’t be caught out!

Businesses that employ fewer than 100 employees or with annual turnover under $10 million (Small Business) are now protected by the new unfair contract terms (UCT) regime in standard form contracts. The intention of this new UCT regime is to capture an expanded number of businesses and provide greater protections…

Victoria Caldwell

Building Commercial Construction Insolvency Security of Payments

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.…

Victoria Caldwell

Adjudication Building Construction Litigation

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…

Victoria Caldwell

Building Construction Development Guarantees

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…

Victoria Caldwell

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 Contracts Development Litigation Projects

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…

Victoria Caldwell

Commercial Insolvency

6 November, 2023

The PJC’s Corporate Insolvency Report

On 12 July 2023, the Parliamentary Joint Committee on Corporations and Financial Services (PJC) released a comprehensive report on corporate insolvency in Australia. This report made 28 recommendations focused on addressing various issues in the current Australian corporate insolvency space and raised some issues in the personal insolvency sector. The…

Mark Lucchitti

Commercial Insolvency

13 October, 2023

Can statutory demands and set aside applications be served by email?

Bioaction Pty Ltd v Ogborne, in the matter of Bioaction Pty Ltd FCA 436 Statutory demands and applications to set aside a statutory demand may be served by email, however this manner of service is fraught with danger. The requirements for effective service are more complicated and the onus for…

Vincent Young

Property

9 October, 2023

Forfeiture of lease and relief for sublessees

A summary of Synergy Scaffolding Holdings Pty Ltd v Goodman Funds Management Australia Limited as trustee for GAI1 RPF Subtrust of the Hayesbery NSWSC 538 In this Supreme Court of New South Wales decision, the Summons filed by the Plaintiffs, the sublessees, in respect of relief sought against forfeiture of…

Vincent Young

Projects Property Stamp duty Tax

6 October, 2023

Increase in Property Related Duties – A further revenue hit

The release of the 2023-24 budget by NSW Treasurer Daniel Mookhey on September 19, 2023, marked a significant turning point in the fiscal landscape of the state projected to yield a substantial increase in revenue, estimated at nearly $1 billion over the next four years. In this article we focus…

Vincent Young

Property

22 September, 2023

Overview On Incentive Clawbacks

The effectiveness of incentive clawback provisions, whilst common in commercial leasing transactions, continues to be uncertain. Perhaps it is time to consider alternatives. See details below. Some recent cases In brief summary: Courts are open to interpreting an incentive clawback clause as potentially not being a penalty where it gives…

Vincent Young

Insolvency Litigation

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…

Vincent Young

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Latest news

You Have One Shot

Restraint of trade clauses in business sale agreements – What NOT to do

Be Wary of Your Payment Schedules Under the SOP Act

Unfair Contract Terms Significantly Expanded. Don’t be caught out!

Using DOCAS To Preserve SOPA Claims In Administrations?

Procedural Fairness In Adjudication

How to Prevent Bank Guarantees being Called Upon

Jurisdictional Errors of an Adjudicator

Recourse To Security Based On A Bona Fide Claim

The PJC’s Corporate Insolvency Report

Can statutory demands and set aside applications be served by email?

Forfeiture of lease and relief for sublessees

Increase in Property Related Duties – A further revenue hit

Overview On Incentive Clawbacks

Recovery of judgment debts – Garnishee and Writs

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