Welcome to The Critical Path, HWLE Lawyers’ Construction and Infrastructure newsletter featuring the latest developments in construction law, to help you stay on the critical path!

Is an amendment to the Domestic Building Contracts Act 1995 (Vic) for ‘off-the-plan’ sales ‘off limits’?

Provided a sale contract is properly drafted, section 3 (4) of the DBCA gives a developer selling off-the-plan protection from claims by purchasers relying on section 8 warranties. Despite recommendations to extend the section 8 warranties to developers, these recommendations did not form part of the latest amendments to the DBCA. This means developers are still able to make use of this loophole. Recent VCAT findings nevertheless highlight that developers selling properties off-the-plan may still face liability under statutory warranties if contracts aren’t carefully drafted.

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Collaborate or bust? Choosing the right contract model

One of the most important, yet frequently understated, elements of success in construction & infrastructure projects is selecting the right contract model. Although no one contract model is perfect for all projects, it is possible to select the best or most appropriate contract model to achieve desired project outcomes and manage project-specific risks. This requires an understanding of the most important project drivers for the particular project, and an ability to understand and apply the right contract models to best deliver on those drivers.

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ATTENTION DEVELOPERS: Why the role you play – and not the title you have – determines whether you owe the statutory duty of care under the DBP Act

The statutory duty of care under the Design and Building Practitioners Act 2020 (NSW) does not hinge on job titles but on the level of control exercised over construction work. Developers who take an active role in supervision, coordination or decision-making could, depending on the circumstances, find themselves owing this duty, with implications for liability. A developer that insists on overseeing or controlling every decision is likely to owe the duty, whilst a developer who has contracted out of overseeing or controlling decisions is less likely to owe the duty. Our full article provides some practical steps to manage this risk.

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Insurance policies and building defects – Where the policy covers ‘property damage’

Recovering damages after a builder enters administration can be challenging, but recent proceedings show there are options. The Court allowed an insurer to be joined under the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) where property damage coverage under the policy was arguable. This case highlights an important avenue for claimants to pursue claims against a builder that is in administration.

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Belts and braces are not always the best approach

Contractors have multiple legal pathways to recover unpaid amounts, but taking a ‘belts and braces’ approach can create risk. The decision in Grounded v KW Civil & Construction highlights that running parallel proceedings, such as statutory demands alongside court actions, may in certain circumstances amount to an abuse of process. The judgment also said where an adjudicator rejected all of a party’s offsetting claims, those claims did not form part of the determination and could be successfully raised.

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Cross-claim clash: Who decides the scope in expert determination? – Downer EDI Rail Pty Ltd v John Holland Queensland Pty Ltd [2025] QSC 310

In Downer EDI Rail Pty Ltd v John Holland Queensland Pty Ltd¹ the Queensland Supreme Court considered whether the scope of expert determination can include new cross-claims beyond the disputes identified in a notice of dispute.

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