Articles / Resources

From contract review to payment recovery, here’s when to hire a construction lawyer and how they ensure your construction project stays on track.

Learn the basics of construction contracting. Key commercial clauses cover scope of work, payment, security, variations, delays and dispute resolution. Read now.

In the recent case of Tomkins Commercial & Industrial Builders Pty Ltd v Pacific Diamond 88 Pty Ltd [2024] QSC 321, the Qld Supreme Court considered an application of the builder (Tomkins) seeking declarations that the developer (Pacific Diamond) was not contractually entitled to set off amounts certified as LD’s against amounts payable to the builder.

Explore how to prepare a BIF Act payment schedule in Queensland. Understand key requirements, timeframes, and best practices to protect your payment rights.

Further Rollout of Project Trust Accounts on Hold A recent BIF Act Proclamation places the further rollout of Project Trust Accounts (PTA’s) (for eligible contracts valued below $10 million) on hold until further notice.

Learn how to prepare a BIF Act payment claim step by step. Ensure compliance, avoid disputes, and secure timely payments for your construction projects. This guide offers practical tips to ensure that fast track avenues for payment recovery remain open.

Giving BIF Act payment claims – brought to the attention of an authorised person is enough The Qld Court of Appeal in the recent case of Oakey Pty Ltd v Canadian Solar Construction (Australia) Pty Ltd [2024] QCA 2024 upheld effective service of the contractor’s BIF Act payment claim in the sum of approx. $4m after the principal failed to issue a payment schedule within the time frame.

It is well established in QLD & NSW in relation to SOP Act legislation, that respondents can raise the misleading and deceptive conduct of claimants as a defence to a claimant’s summary judgment application seeking to enforce a payment claim. These defences are often raised when no payment schedule is served by the respondent within time and a deemed statutory debt in respect of the payment claim arises in favour of the claimant.

On 1 July 2024, s79 of the BIF Act was amended to clarify the obligations on applicants (following submission of an Adjudication Application to the QBCC) to give copies of specified documents to the respondent within 4 business days (July 2024 BIF Act amendments). Earlier this month, the July 2024 BIF Act amendments were considered by the Qld Supreme Court in the case of Platform Constructions.......

Payment Claims are not for Construction Work Alone - The NSW Court of Appeal recently considered a contractor’s appeal seeking to reinstate an Adjudication decision in its favour of approximately $10m after being voided by the primary judge. The primary judge considered the subject payment claim was not a valid for the purposes of the NSW SOP Act because it was not a claim for construction work (rather a claim for security improperly recovered by the principal) and voided the Adjudication decision in favour of the contractor.

Proposed amendments to AS4000 (for release in late 2024 or early 2025) introduce new contract interpretation, confidentiality, insolvency, PPSR and dispute resolution clauses. The new dispute clauses introduce options for mediation, expert determination and a dispute avoidance board by election by the parties.

Two recent decisions in QLD Supreme Court and NSW Court of Appeal concern appeals of Adjudicator’s decisions in respect of payment claims issued after termination of the respective contracts, whereby the Adjudicator in each instance had awarded payment of retention money to the claimant contractor.

In 2023, the decision of the NSW Supreme Court in Sunshine East Pty Ltd v CBEM Holdings Pty Ltd (Sunshine) highlighted a major divergence between NSW and QLD in respect of security of payment legislation applied to unlicensed contractors.

Recent NSW & QLD Supreme Court and NSW Court of Appeal decisions below provide useful tips for all construction businesses in the contractual chain in relation to issue of payment claims and payment schedules under security of payment legislation.

SOP Act Adjudication Decision Upheld - denial of procedural fairness rejected

The NSW Supreme Court recently considered an application of a local council to overturn a NSW Adjudication decision in favour of a civil contractor for approx.$3.3m.

Many Queensland subcontractors are not aware of the full debt recovery power of subcontractors charges in Chapter 4 of the Building Industry Fairness (Security of Payment Act) 2017 (Qld) (BIF Act).

The NSW Supreme Court in Castle Constructions Pty Ltd v Napoli Excavations and Civil Pty Ltd recently considered the builder’s application (Castle) to have an adjudication…

Late last year the Queensland Supreme Court in the case of Karam Group Pty Ltd (Karam) v HCA Queensland Pty Ltd (HCA) & Ors considered an…

The recent Queensland Court of Appeal decision in Built Qld Pty Limited v Pro-Invest Australian Hospitality Opportunity (ST) Pty Ltd demonstrates how generalised descriptions in the…

The NSW Supreme Court in the case of BCFK Holdings Pty Ltd v Rork Projects Pty Ltd recently considered the Principal’s (BCFK) appeal of an adjudication…

The recent NSW Supreme Court decision in McNab Building Services Pty Ltd v Demex Pty Ltd considered an appeal of an Adjudicator’s decision under the NSW…

The Queensland District Court in the recent decision of Thallon Mole Group Pty Ltd v Morton considered whether estoppel stands in the face of the statutory…

Last month, Troy Legal published a reminder for Queensland commercial construction businesses of the importance of properly preparing valid payment claims under the BIF Act by…

Owners, developers and contractors will be aware that contracts for the design and construction of building elements such as mechanical systems (eg. air conditioning and ventilation)…

Part 6AA of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) defines what constitutes a non-conforming building product (NCBP). Put simply, a NCBP…

Commercial construction businesses in Queensland are well aware of the strategic advantage of submitting progress claims that are also valid payment claims under the Building Industry…

Australian Consumer Law Protections Impacting SME’s in Construction The recent Federal Court decision of Lobux Pty Ltd v Willshaun Pty Ltd [2022] FCA 204 considered the…

Recently the NSW Court of Appeal (comprising 5 judges) in BSA Advanced Property Solutions (Fire) Pty Ltd v Ventia Australia Pty Ltd considered a Subcontractor’s appeal from…

The recent Queensland District Court decision in Allencon Pty Ltd v Palmgrove Holdings Pty Ltd [2022] QDC 90 concerned a summary judgment application by the Subcontractor…

In the current high-risk environment of increased products, materials and transport costs, labour shortages and flood water impacts, it is critical subcontractors and suppliers take prompt…

The Building and Other Legislation Amendment Bill 2022 (Bill) recently introduced in the Queensland Parliament overturns the proposed repeal (by earlier legislation) of the head contractor licensing exemption…

The NSW Supreme Court in Equa Building Services Pty Ltd v A&H Floors 2 Doors Australia Pty Ltd recently considered the validity of an Adjudicator’s decision finding that…

In December 2021, Williams J in separate cases in the NSW Supreme Court decided the same issue regarding the proper application of s13(4) of the NSW…

Recently the NSW Supreme Court in Ventia Australia Pty Ltd v BSA Advanced Property Solutions (Fire) Pty Ltd [2021] NSWSC 1534 considered a challenge to the validity of a…

The Qld Court of Appeal in the recent case of Ausipile Pty Ltd v Bothar Boring Tunnelling (Australia) Pty Ltd overturned a decision of a primary judge at first…

The subcontractors’ charges provisions in Chapter 4 of the Building Industry Fairness (Security of Payment) Act 2017 (Act) provide a powerful tool for subcontractors looking to secure payment.…

Many Australian Standard construction contracts, commonly used for construction projects in Queensland and across Australia, contain dispute resolution clauses referring disputes to Arbitration and are binding…

The NSW Court of Appeal in the case of Joye Group Pty Ltd v Cemco Projects Pty Ltd recently considered whether an email issued in response…

Parties to commercial contracts often expect good faith in their ordinary dealings, however, readily accept contractual terms which contradict those expectations. When a matter becomes the…

It is important Principal’s retain the right to revoke the authority of a Superintendent to act as their agent under a construction contract. Contractual deeming provisions…

The NSW Supreme Court recently considered the effect of s31 of the NSW SOP Act, and what constitutes effective service of a payment claim under that…

GC21 Expert Determination Clause The NSW Court of Appeal recently considered an expert determination clause in a GC21 Contract between a builder and the NSW Department…