The Critical Path – C&I Newsletter October 2025
Market Insights
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!
The new and improved AS 4000:2025 General Conditions of Contract is here!
This article was written by Kate Morrow, Partner, Caitlin Newland, Associate and Elizabeth Lester, Solicitor.
On 30 June 2025, Standards Australia announced the AS 4000 underwent its first significant revision in almost 30 years. The revised standard boasts improved clarity, usability and alignment with laws, whilst maintaining the familiar risk allocation provisions.
Click here to read more.
Major reforms set for Victoria’s Security of Payment legislation
This article was written by Paul Graham, Partner, Fin Neaves, Senior Associate, and Joseph Li, Solicitor.
On 11 September 2025, the Building Legislation Amendment (Fairer Payments on Jobsites and Other Matters) Bill 2025 (the Bill) was released and read for a second time in Victoria’s Legislative Assembly.1
The Bill introduces sweeping changes to the Building and Construction Industry Security of Payment Act 2002 (Vic) (SOP Act) that aim to:
- modernise the SOP Act to streamline the process of making claims and adjudication; and
- better align Victoria’s regime with the security of payment legislation in other Australian jurisdictions.
Click here to read more.
Reducing greenhouse gas emissions in the building and construction sector
This article was written by Jonathan Davies, Special Counsel and Noel Williams, Associate, and was reviewed by John Vozzo, Partner.
This article considers the emerging legal framework for reducing emissions in Australia’s building and construction sector.
Click here to read more.
When a bank guarantee is not quite “as good as cash” – Synergy Construct v GSA North Terrace [2025] SASCA 72
This article was written by John Vozzo, Partner, Jonathan Davies, Special Counsel and Noel Williams, Associate.
In Synergy Construct v GSA North Terrace [2025] SASCA 72, the Court of Appeal of South Australia granted an interim injunction restraining a principal from “cashing in” bank guarantees provided as security under a construction contract.
The decision is a useful reminder that, although an unconditional bank guarantee or insurance bond is often thought to be “as good as cash”, the terms of the construction contract may still restrict a principal’s right to have recourse to such forms of security.
Click here to read more.
Dents in the armour – Navigating the boundaries of SOPA protection
This article is written by David Jury, Partner, Sannan Tariq, Special Counsel and Christian Nehme, Solicitor.
The NSW Court of Appeal in Black Label Developments Pty Ltd v McMenemy [2025] NSWCA 114 (Black Label) has found that even though the policy of the Building and Construction Industry Security of Payment Act 1999 (NSW) (Act) is ‘pay now argue later’ the Court still has a broad discretion to order a stay of enforcement.
When considering an application for a stay, the Court found in Black Label:
- the policies of the Act are material considerations but not determinative;
- these policies may be outweighed by issues affecting the validity of the contract;
- other factors, such as the financial position of the builder, may influence the outcome; and
- when the contract concerned is for residential building work different considerations apply.
While a series of earlier judgments suggest that stays will only be granted in very limited circumstances, Black Label affirms that the Court always has discretion to order a stay in the right situation.
Click here to read more.
“Bright days” gets a gloomy outcome – Jurisdictional decisions and ill-timed payments
This article was written by Colin Harris, Partner and Samuel Bates, Solicitor.
In Bright Days Herston Pty Ltd v ATG Project & Property Solutions Pty Ltd [2025] QSC 147 the Queensland Supreme Court considered whether an adjudicator refusing to make a decision was a determination and further, whether a payment made after a payment schedule was issued was considered a “new reason” which an adjudicator must not have regard to.
Click here to read more.
1 Building Legislation Amendment (Fairer Payments on Jobsites and Other Matters) Bill 2025.
Clarification and apology to Mr Gerrard Toltz
An article distributed in the December 2024 edition of this newsletter, titled ‘Apportionment in NSW is a more inclusive interpretation on the horizon for defendants’, mistakenly referred to Gerrard Toltz Pty Ltd as a ‘now-deregistered’ law firm. It has since come to our attention that this reference was incorrect. As at the time of writing, according to our searches, Gerrard Toltz Pty Ltd remains registered on both the ASIC company register and the Law Society of New South Wales register of solicitors (under the trading name Toltz Lawyers).
We retract, and apologise unreservedly to Mr Toltz for, the suggestion that Gerrard Toltz Pty Ltd is a ‘now-deregistered’ law firm.
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