Allens

Construction & Major Projects

Our experienced Construction legal team regularly publishes articles and updates - the full list of publications appears below. The construction group's articles and publications provide timely and accurate insights into the industry, including analysis of legislation and news on upcoming seminars. This information is relevant to owners, contractors, subcontractors, government instrumentalities, developers, investors and consultants. If you'd like to be notified when we add new construction publications to the site, please go to our subscription page to sign up for email alerts or, alternatively, you can subscribe to our RSS feed.

Download the 2015 edition of Construction Law Year in Review.

Previous versions can be downloaded here: 2014, 2013, 2012, 2011, 2010, 2009, and 2008.

Construction & Major Projects Publications

  • Focus: Finally - a class action regime for Queensland

    17 August 2016

    Class actions in Queensland are one step closer with the introduction of proposed new legislation into the Queensland Parliament. Partner Michael Ilott, Special Counsel Robyn Morrison and Senior Associate Suzie Fraser report.

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  • Focus: Compliance with multi-tiered dispute resolution clauses

    28 July 2016

    The Queensland Supreme Court has stayed proceedings on the basis that the parties did not follow the agreed contractual provisions for the proper escalation of a dispute. Partner Leighton O'Brien, Senior Associate Julian Berenholtz and Law Graduate Flora Ma report on the decision that emphasises the importance of constructing appropriate dispute resolution clauses for each transaction.

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  • Focus: Supreme Court of WA sends EPC contractor back to arbitration

    13 July 2016

    In Samsung C&T Corporation v Duro Felbuera Australia Pty Ltd [2016] WASC 193, the Supreme Court of Western Australia had to carefully consider the role that Australian courts play when there is a dispute over the existence and scope of an arbitration agreement. The key issue was whether a jurisdiction clause in a term sheet was inconsistent with there being an agreement to arbitrate disputes arising under the term sheet. However, the court was also required to consider the extent to which it should determine whether an arbitration agreement existed, and whether a dispute fell within its scope, in circumstances where an arbitral tribunal had already been asked to rule on its own jurisdiction to hear the same dispute. Partner Jeremy Quan-Sing and Law Graduate Lily Hands report.

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  • Allens insights: Value capture and getting smart

    30 June 2016

    The Australian Government has identified value capture and innovative financing as key elements of its Smart Cities Plan. The move will have significant implications for traditional project finance. By Paul Kenny, Sector Leader, Government, and Phillip Cornwell, Project Finance, Consultant at Allens.

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  • Focus: Resolving and valuing disputed variation claims under BCIPA in Victoria

    2 June 2016

    The Victorian Court of Appeal has confirmed that a dispute resolution clause providing for mediation is insufficient to exclude variations claims from the statutory adjudication process under the Victorian Security of Payment regime. The decision also confirms that, when determining the value of a progress payment, an adjudicator is not required to adopt a valuation certified by the superintendent under the contract. Partner Nick Rudge and Senior Associate Luisa Uriarte look at the decision and the practical ramifications for drafting construction contracts in Victoria.

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  • Paper: The Public-Private Partnership Law Review

    18 May 2016

    Partners David Donnelly and Nicholas Ng examine public-private partnerships (PPPs) in Australia, including the year in review, the general framework, bidding and award procedures, recent decisions and the outlook for 2015.

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  • Focus: Contractors face uphill battle restraining security calls

    7 March 2016

    The Supreme Court of Western Australia has dismissed a subcontractor's application for an interlocutory injunction restraining a call on a bank guarantee. Partners Nick Rudge and Jeremy Quan-Sing and Lawyer Evan Lacey discuss the decision and its implications.

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  • Focus: World Bank compares public procurement globally

    12 January 2016

    The World Bank has released its Benchmarking Public Procurement 2016 report, which provides comparable data on regulatory environments that affect the ability of private companies to do business with governments in 77 countries. Partner Leighton O'Brien* (who contributed to the report's analysis of Australia's public procurement practices) and Lawyer Patrick Easton look at the report and the lessons it provides Australian procuring entities on global best practice in public procurement.

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  • Focus: UK Supreme Court counters High Court on penalties

    19 November 2015

    The highest appellate court in the UK has affirmed and restated the penalty rule as it applies in the UK in a recent decision that directly addresses, and counters, the High Court of Australia's approach to the rule in Andrews. Partner Nick Rudge and Lawyer Patrick Easton report.

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  • Focus: Painting the full picture: certifiers and financiers in projects

    20 October 2015

    A recent decision of the UK High Court provides valuable instructions to both financiers and consultants regarding their obligations in monitoring project developments. Partners Nick Rudge (view CV) and David Donnelly (view CV) and Lawyer Patrick Easton report on the decision in Lloyds Bank plc v McBains Cooper Consulting and its relevance to parties to Australian projects.

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  • Focus: Judicial review of adjudication determinations - a new expansive approach?

    28 July 2015

    In a recent decision, the Supreme Court of Western Australia quashed two adjudication determinations on the basis of jurisdictional error. At the core of the decision was a finding that the adjudicator had misapplied the terms of the relevant construction contract. The decision suggests that an expansive approach will be taken to the judicial review of adjudications under the Construction Contracts Act 2004. Partner Jeremy Quan-Sing and Law Graduate James Illich report.

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  • Focus: There's no such thing as a free lunch (or road): user charges and road pricing

    26 June 2015

    Whether or not to more broadly adopt a 'user-pays' model for road infrastructure is a contentious debate within Australia. A number of industry participants and bodies have shown leadership in framing and enriching the debate, while others have sought to politicise or inflame the core issues. Partner David Donnelly considers the current state of the debate on user charges for road infrastructure in Australia.

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  • Focus: Support for principals with bank guarantees

    25 June 2015

    A principal has successfully challenged a decision to grant an interlocutory injunction restraining it from calling on performance bonds. The Victorian Court of Appeal's decision reaffirmed the court's general approach in favour of rejecting such applications where, as in many cases, the purpose of the bond is to provide security and allocate cash flow risk. Partner Nick Rudge and Senior Associate Julian Berenholtz report on the Victorian Court of Appeal decision in Sugar Australia Pty Ltd v Lend Lease Services Pty Ltd and its implications.

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  • Focus: WA Supreme Court provides further guidance on challenging adjudication determinations made under the Construction Contracts Act

    21 May 2015

    The Western Australian Supreme Court has provided additional guidance on the types of errors that can lead to an adjudicator's determination being quashed by the court. The Delmere Holdings Pty Ltd v Green decision is of interest to anyone who deals with security of payment adjudications under the Construction Contracts Act 2004 (WA). Partner-elect Jeremy Quan-Sing and Law Graduate James Illich report.

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  • Focus: When are LDs a penalty?

    8 May 2015

    The Supreme Court of Queensland recently considered whether liquidated damages in a standard form construction contract were a penalty. In a decision that traversed long-held doctrines on penalties and recent developments in Andrews and Paciocco, the court ruled that the obligation to pay liquidated damages in this case was not penal. Partners Nick Rudge and David Donnelly and Lawyer James Waters report.

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  • Focus: Insolvent contractors beware: principals can rely upon set-off rights when resisting claims

    29 April 2015

    The Victorian Supreme Court has provided guidance on set-off rights in the context of insolvency, particularly in relation to inconsistency between provisions of the Corporations Act and security of payment legislation. Partner Nick Rudge and Lawyer James Waters report.

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  • Paper: The Public-Private Partnership Law Review

    21 April 2015

    Partners David Donnelly and Nicholas Ng examine public-private partnerships (PPPs) in Australia, including the year in review, the general framework, bidding and award procedures, recent decisions and the outlook for 2015.

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  • Focus: Social benefit bonds - their role in the funding challenge for social infrastructure and services

    20 March 2015

    With the recent Intergenerational Report having further highlighted the need to deliver social outcomes in an efficient way, Partners David Donnelly and James Darcy report on the potential role of social benefit bonds in providing social infrastructure and services.

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  • Focus: The Inverted Bid Model - five key questions in solving it

    18 March 2015

    Industry Super Australia's proposed Inverted Bid Model has generated a lot of interest and discussion. At a recent industry symposium, participants were invited to explore the model, with a view to further refining it for application in the Australian infrastructure market. Partner David Donnelly poses some key questions.

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  • Client Update: First Asset Recycling Initiative agreement signed

    24 February 2015

    The Federal Government announced late last week that the first agreement under its $5 billion Asset Recycling Initiative has been signed with the ACT Government, demonstrating the Federal Government's commitment to the Initiative despite the underlying legislation remaining stalled by the Senate. Government sector leader and Partner Paul Kenny, Managing Associate Emin Altiparmak and Lawyer Ellie Mulholland report.

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  • Construction Law Year in Review 2014

    20 February 2015

    Our Construction Law Year in Review 2014 provides an overview of important construction law decisions and legislative developments in the past 12 months and considers how this may impact on your business.

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  • Paper: Getting the deal through - Australia PPP chapter

    5 November 2014

    Partners Leighton O'Brien and Nicholas Ng provide an overview on public-private partnerships (PPPs) in Australia, examining the general PPP framework, trends in the industry, the procurement process, operation and maintenance, default and termination and financing.

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  • Focus: The hotel window closes - no vulnerability where a contract exists

    20 October 2014

    The High Court recently overturned a NSW Court of Appeal decision that stated a building contractor owed a duty of care for pure economic loss for defective work to a successor in title to the developer of commercial premises. Partner Leighton O'Brien and Lawyer William Coote assess the decision and its consequences.

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  • Audio: Ravenhall Prison Project - part of a broader move to core services outsourcing?

    28 September 2014

    The Victorian Government's new medium security men's prison at Ravenhall represents a significant advance in the outsourcing of core services. Partner David Donnelly speaks to BRR Media about the key drivers of the outsourcing and what this could mean for future infrastructure projects.

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  • Focus: Amendments to BCIPA regime passed in Queensland

    18 September 2014

    The Queensland Parliament has passed amendments to the state's security of payment legislation that aim to address concerns raised by the construction industry about unfairness in the payment claim and adjudication process. Managing Associate Nicholas Ng, Associate Laura Nagy and Lawyer Timothy Leschke report on the key changes and the implications for the industry.

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  • Focus: Make informal payment arrangements for construction work at your own peril

    5 September 2014

    A recent decision of the New South Wales Supreme Court serves as a timely reminder that a 'construction contract' under security of payment legislation can include an arrangement to carry out construction work that is not legally enforceable. Managing Associate Nicholas Ng, Associate Matt Thomas and Lawyer Timothy Leschke report on this decision and its implications for the construction industry.

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  • Focus: SOPA adjudications in Western Australia - only the applicant can win!

    3 July 2014

    The Supreme Court of Western Australia has held that under that state's security of payment legislation, an adjudicator does not have the power to make a determination that requires an applicant to pay the respondent money by reason of any counterclaim raised in the adjudication. An adjudicator may consider the counterclaim, but only in the context of whether any amount is payable to the applicant. A respondent who seeks to recover money by reason of a counterclaim must initiate a separate adjudication. Partner Michael Hollingdale, Managing Associate Jeremy Quan-Sing and Associate Helen Dolling report.

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  • Focus: School chaplaincy program remains out of bounds of federal power

    26 June 2014

    In a decision that has potential implications for a raft of Federal Government programs, the High Court held that legislation, passed to authorise hundreds of government funding arrangements, is invalid insofar as it relates to the national schools chaplaincy program. The decision once again confirms that the Federal executive cannot enter into contracts or authorise spending on a subject matter that it does not have power to legislate for. Partner Paul Kenny and Lawyer Danielle Atkin report.

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  • Focus: Adjudications under WA's SOPA legislation - enforcement by statutory demands clarified

    24 June 2014

    The WA Supreme Court has provided important clarification on the enforcement of adjudication determinations by the use of statutory demands under that State's security of payment legislation. It has confirmed that leave to enforce an adjudication determination as a judgment must be obtained before the issue of a statutory demand, and that failing to do so will mean the statutory demand is liable to be set aside. Partner Michael Hollingdale, Senior Associate Jeremy Quan-Sing and Lawyer Brittney Nash report.

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  • Audio: Will new Senate impact proposed workplace changes?

    5 June 2014

    A raft of important workplace relations legislation is waiting to be passed by the Senate. Special Counsel Eleanor Jewell spoke to BRR Media about the more important Bills and how the makeup of the new Senate may affect these proposed changes.

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  • Focus: National Partnership Agreement on Asset Recycling

    14 May 2014

    The National Partnership Agreement on Asset Recycling between the Commonwealth and each of the states and territories firmly entrenches asset recycling for the next five years (at least). In last night's Budget, the Federal Budget announced $5 billion will be made available to fund payments to the states and territories. This could see existing state-owned infrastructure assets sold off to invest in significant major new works. Partner John Greig looks at the Agreement's implications.

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  • Focus: Using 'reasonable endeavours' - the importance of internal contractual standards

    28 April 2014

    The High Court has recently highlighted the significance of internal contractual standards when interpreting an obligation to use 'reasonable endeavours'. Partner Nick Rudge and Lawyers Goran Gelic and Timothy Leschke report on this development and its implications.

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  • Client Update: Security of payment laws to come into force in NSW

    11 April 2014

    New amending security of payment legislation will soon come into force in NSW that will provide greater protection and certainty for subcontractors in the contracting chain. Partner Leighton O'Brien and Lawyers Will Coote and Jerome Entwisle look at what will change and the implications.

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  • Focus: Important changes to BCIPA in Queensland

    11 April 2014

    Queensland's Department for Housing and Public Works has released details of fundamental amendments to the Building and Construction Industry Payments Act, proposed to come into effect this year. Partner Dan Young and Overseas Practitioner Andrew Middleton report on the key reforms proposed and their implications should they be enacted in their current form.

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  • Focus: Significant changes to Victorian Civil and Administrative Tribunal powers

    26 March 2014

    New legislation will implement significant changes to the administration of the Victorian Civil and Administrative Tribunal in a bid to improve efficiencies. Special Counsel Meg Lee and Lawyer Katherine Kirby discuss the key changes to VCAT's powers in the context of its planning jurisdiction.

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  • Client Update: Adjudication during the festive season - are you prepared?

    16 December 2013

    Principals and head contractors need to act now, to avoid being caught short by an application for adjudication made just before, or on any day during, the festive season. Partner Stephen McComish and Lawyer Kristian Maley report.

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  • Focus: When will a WA court restrain an adjudicator from making a determination?

    29 November 2013

    The WA Supreme Court recently looked at whether interlocutory relief should be given to restrain a subcontractor from progressing an adjudication application and an adjudicator from making a determination. Partner Stephen McComish and Lawyers Andrew Kirk and Helen Dolling report.

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  • Focus: The NSW Planning Bill 2013 - Part IV - appeals and enforcement

    19 November 2013

    In this fourth and final article in our series providing commentary on the NSW Planning Bill 2013, Partner Paul Lalich and Senior Associate Trent March discuss the appeals and enforcement provisions in the Bill that was recently introduced into Parliament.

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  • Client Update: Amending security of payment legislation in NSW

    14 November 2013

    In response to the Collins Report into insolvency in the NSW building industry, the State Government is amending its security of payment legislation. Partner Leighton O'Brien and Law Graduate William Coote look at the changes and what they mean for certain aspects of future contracts in this industry.

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  • Audio: Changes to building licence laws: Qld

    8 November 2013

    The Queensland Parliament has recently passed a number of amendments to the Queensland Building Services Authority Act, which governs building licences in Queensland. The amendments are part of the government's ongoing response to a review of the Queensland Building Services Authority. Senior Associate Nicholas Ng speaks to BRR Media about the amendments and their wide-reaching implications.

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  • Audio: Major construction developments in 2013

    7 November 2013

    The past year has seen several significant legal developments in relation to the construction industry. On the release of Allens' 2013 Construction Law Year in Review publication, Partner Nick Rudge talks to BRR Media about developments regarding construction contracts and dispute resolution.

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  • Focus: The NSW Planning Bill - Part III - infrastructure and development contributions

    30 October 2013

    In this third of our four-part series of articles providing commentary on the anticipated future direction of the NSW Planning Bill 2013, Partner Paul Lalich and Senior Associate Trent March discuss the infrastructure and development contributions regime proposed under the Bill.

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  • Audio: New planning laws for NSW

    30 October 2013

    The New South Wales Government's decision to forge ahead with the most significant planning overhaul in decades has received a mixed response from the property and construction industry. Paul Lalich, who is a Partner in the Environment & Planning group at Allens, speaks to BRR Media about the new laws, which are aimed at streamlining approvals processes so that development can be stimulated in NSW's growth areas.

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  • Focus: Flooding generates more debate on consequential loss exclusion

    14 October 2013

    A recent decision of the Western Australian Supreme Court arising out of a flooding incident at a remote power station near Lake Argyle, WA has shone a bright light on the law on consequential loss in the wake of the previous authority that had informed this area of law. Partner Michael Hollingdale and Senior Associate Nicholas Gallina report on the case.

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  • Audio: Election impacts on infrastructure

    9 October 2013

    The newly elected Abbott Government has announced a range of policies that will impact upon Australian companies across a number of sectors, with potential changes in the areas of tax, climate change, infrastructure, competition, workplace relations, foreign investment and technology, media and communications. Partner Michael Hollingdale, from the Energy, Resources & Infrastructure group at Allens, speaks to BRR Media about the impact of the election results on the infrastructure sector.

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  • Focus: Tax loss incentive for nationally significant infrastructure projects

    14 August 2013

    After a long period of scoping, consultation and review, concessional treatment for the tax losses of entities undertaking nationally significant infrastructure projects has become law. Under the measure, which was announced in the 2011-12 Federal Budget, eligible losses can be uplifted by the long-term Government bond rate and the loss integrity rules are moderated. Partner Martin Fry and Lawyer Timothy Stokes look at how it will work in practice.

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  • Focus: Dispute resolution clauses: are yours enforceable?

    30 July 2013

    A recent Victorian Supreme Court decision has reinforced the need for dispute resolution clauses to set out the process to be followed to resolve a dispute with sufficient certainty to enable them to be enforceable. Partner Nick Rudge, Senior Associate Nicholas Gallina and Law Graduate Emily Giblin report on the case.

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  • Client Update: Breaking Ground

    29 July 2013

    Breaking Ground is a regular publication by the Allens Infrastructure and Construction group to keep you informed of the latest news and developments in this area.

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  • Client Update: Breaking Ground

    15 July 2013

    Breaking Ground is a regular publication by the Allens Infrastructure and Construction group to keep you informed of the latest news and developments in this area.

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  • Focus: Post-termination payment claims - new issues

    8 July 2013

    A recent decision has upheld that a party to a terminated construction contract cannot make a subsequent payment claim under BCIPA. Partner Ren Niemann and Overseas Practitioner Andrew Middleton report on the case and its implications.

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