Welcome to The Critical Path, HWL Ebsworth Lawyers’ Melbourne Construction and Infrastructure newsletter featuring the latest developments in construction law, to help you stay on the critical path!
As always, we hope you enjoy this issue of The Critical Path and that it finds some use in your endeavours.
Changes to Victorian Security of Payment laws recommended by Legislative Assembly Environment and Planning Committee
This article was written by Leighton Moon, Partner, Fin Neaves, Associate and Ariadne Paras, Solicitor.
The construction industry has been consistently identified to experience payment problems such as long payment terms, late payments, incomplete payments and non-payments. As such, in November 2023, the Legislative Assembly Environment and Planning Committee (the Committee) published its inquiry dealing with the security of payment (SOP) laws in Victoria.
This inquiry has been published in recognition of the proliferation of poor payment practices frequently experienced by businesses in the construction industry, and considering its findings, the Committee has made a number of recommendations to the Victorian Government including a call for legislative reform to the Building and Construction Industry Security of Payment Act 2002 (Vic) (the Act).
Click here to read more.
Jurisdictional Referral – Transfer or start again?
This article was written by Theo Kalyvas, Partner and Fin Neaves, Associate.
The Victorian Court of Appeal has clarified the jurisdictional boundaries of VCAT. Its decision in Krongold v Thurin [2023] VSCA 191 helps to enshrine a principle that matters concerning federal law must (at the moment at least) be referred by VCAT to another court.
Click here to read more.
Can retention monies be claimed in payment claims under the SOP act?
This article was written by Paul Graham, Partner, Tara Nelson, Senior Associate and Nick Jarrett, Solicitor.
In the recent decision of Hunters Green Retirement Living Pty Ltd v J.G. King Project Management Pty Ltd [2023] VSC 536 the Supreme Court of Victoria held that contractors can claim retention monies under the Building and Construction Industry Security of Payment Act 2002 (Vic) (SOP Act).
This is contrary to Punton’s Shoes Pty Ltd v Citi-Con (Vic) Pty Ltd [2020] VSC 514 (Punton’s Shoes) where the Victorian Supreme Court held that a payment claim for the return of retention money was not a valid payment claim in relation to construction work or the provision of related goods and services.
Click here to read more.
Building Legislation Amendment Act 2023: A concise overview of key changes
This article was written by Marko Misko, Partner, Julie Charles, Special Counsel and Taulant Javori, Associate.
The Building Legislation Amendment Bill 2023 (Amendment Act) amends the Building Act 1993 (Building Act), the Architects Act 1991, the Domestic Building Contracts Act 1995, the Building and Construction Industry Security of Payment Act 2002, the Victorian Administrative Tribunal Act 1998, the Sale of Land Act 1962, the Owners Corporations Act 2006, the Cladding Safety Victoria Act 2020 and also has other purposes. It received Royal Assent on 6 June 2023, and will take effect no later than 1 February 2024. These amendments arise from a 3-year process to identify and reform issues relating to building regulation.
Click here to read more.
“Fair” thee well: Expanded unfair contract terms laws affect construction and infrastructure contracts
This article was written by Matthew Bliem, Partner, Patricia Oman, Senior Associate and Jashrin Whitehead, Solicitor.
It is important that businesses in the construction and infrastructure sectors assess any standard form contracts to ensure that they are not imposing unfair contract terms onto small businesses. Including such terms is prohibited at law and potential repercussions for doing so are now severe.
The unfair contract terms (UCT) regime has been expanded in scope and now applies to a broader range of businesses which were not previously captured by the test of “small business”. Examples of UCTs could include indemnities, liability caps and time bars which are not reasonable and proportionate in the circumstances.
The UCT regime provides small businesses and consumers with the ability to:
- seek that UCTs be declared void and unenforceable in Court; and
- refer companies relying on UCTs to the regulator (the ACCC) who has the power to prosecute and impose large civil penalties.
Click here to read more.
Infrastructure Australia overhaul: New reforms set to reshape national infrastructure advisory body
This article was written by Marko Misko, Partner, Julie Charles, Special Counsel and Taulant Javori, Associate.
Infrastructure Australia (IA) is on the brink of a significant transformation with a series of reforms set to redefine its role, delineate its functions, and establish a new governance framework.
Click here to read more.
