Welcome to The Critical Path, HWL Ebsworth Lawyers’ Construction and Infrastructure newsletter featuring the latest developments in construction law, to help you stay on the critical path!
Press pause – Queensland project trust accounts
This article was written by Colin Harris, Partner, and Kelly Brook, Senior Associate.
The rollout of Queensland’s the statutory trust regime to private projects valued at less than $10 million has been paused indefinitely by Queensland’s new government.
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The jurisdictional error under Building and Construction Industry Security of Payment Act 1999 (NSW)
This article was written by Lucas Keogh, Partner, Rhys Moran, Senior Associate, and Edward Wong, Associate.
The Supreme Court of NSW decision in Martinus Rail Pty Ltd v Qube RE Services (No 2) Pty Ltd [2024] NSWSC 1223 serves as a reminder as to when a Building and Construction Industry Security of Payment Act 1999 (NSW) (SOPA) determination might be set aside for jurisdictional error, and the process adopted by the Court to consider whether a jurisdictional error has occurred.*
*The case is currently the subject of an appeal to the Court of Appeal (NSW). At the time of writing, the appeal judgment has not yet been handed down. A further article discussing the expected appeal judgment will follow in the next instalment of this two-part series.
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Uneasy departure – why variations to standard form contracts need careful consideration
This article was written by Colin Harris, Partner, and Alyce Walker, Solicitor.
A recent Supreme Court of Queensland decision, Tomkins Commercial & Industrial Builders Pty Ltd v Pacific Diamond 88 Pty Ltd as trustee for the Pacific Diamond 88 Unit Trust [2024] QSC 321 emphasises the importance of clear, unambiguous contract drafting. It illustrates the practical application of being of a court being able to consider negotiations to establish the background facts surrounding the contract as part of resolving the ambiguity.
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Substantial changes to Victorian residential building legislation
This article was written by Brian Rom, Partner, and Jashrin Whitehead, Associate.
The Building Legislation Amendment (Buyer Protections) Bill 2025 introduces far reaching reforms of benefit to home and apartment owners in Victoria, but which significantly impact residential builders and developers.
Domestic building insurance (DBI) will become insurance of ‘first resort’ and developers will be required to lodge a bond with the Victorian Building Authority (VBA) for 3 per cent of the total build cost.
The VBA, the Victorian Managed Insurance Authority (VMIA), and the Domestic Building Dispute Resolution Victoria (DBDRV) will be consolidated and a new streamlined regulator, the Building & Plumbing Commission, will emerge with enhanced powers against builders and developers. The Bill provides for checks and balances, including rights of review and recourse to VCAT, but they will come at a cost.
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Don’t be late – time bars and strict compliance
This article was written by Theo Kalyvas, Partner, and Nick Jarrett, Solicitor.
Strict compliance with procedural requirements has long been recognised in the construction industry as essential to establishing a party’s contractual rights.
Colormode Pty Ltd v Civic Construction Group Pty Ltd [2024] QDC 148 reinforces the requirement for strict contract compliance to establish a party’s entitlements.
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Under fire and shot to pieces – the importance of effectively managing cost estimates and budget expectations
This article was written by Lucas Keogh, Partner, Jacques Lourens, Special Counsel, and Christian Nehme, Solicitor
The NSW Supreme Court matter of Construction & Design Australia Pty Ltd v Robinson and subsequent appeal highlight the issues that can arise when expectations around project cost estimates and budgets are misaligned. The matter provides valuable insight into what steps can be taken to better manage the communication of cost estimates and budget expectations early on.
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Cracking the coconut – Sanmik Food v Alfa Laval [2025] NSWCA 7
This article was written by Kevin Lock, Partner and Angelo Lin, Solicitor.
In Sanmik Food Pvt Ltd v Alfa Laval Australia Pty Ltd, the NSW Supreme Court of Appeal decided that a broadly drafted release clause in a settlement deed did not preclude a supplier from asserting title over delivered components where title had not passed to the purchaser pursuant to the initial contract.
The Court also decided that the supplier was permitted to attribute the prior work to new supply arrangements agreed in the settlement deed.
The case of Sanmik v Alfa is an instructive example of disputes arising over the interpretation of a settlement deed in respect of prior supplies or prior work where further work is required to be carried out. Such disputes can be avoided by the parties properly considering interests and clearly specifying rights, obligations and liabilities in respect of any prior supplies or work.
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BEC scams – first major Australian case authority and its impact: Mobius Group Pty Ltd v Inoteq Pty Ltd [2024] WADC 114
This article was written by Bill Singleton, Partner, Darcy Thompson, Senior Associate, and Lauren Neale, Solicitor
On 20 December 2024, the Western Australian District Court handed down the first major Australian court decision on business email compromise (BEC) scams: Mobius Group Pty Ltd v Inoteq Pty Ltd [2024] WADC 114 (Mobius v Inoteq). This article discusses the impact this case has on liability for loss caused by BEC scams and provides key recommendations for construction industry participants to implement moving forward.
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Building and Construction Industry (Security of Payment) Act 2021 (WA) – challenges to the Deemed Liability Regime
This article was written by Kate Morrow, Partner, and Michael Harris, Special Counsel.
This article discusses the deemed liability regime under the Building and Construction Industry (Security of Payment) Act 2021 (WA) (Act), two recent cases in Western Australia where contractors were unsuccessful in obtaining summary judgment under the Act, and what can be learned from these judgments.
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