The decision in the High Court of Australia:
- confirms that parties can contract out of limitation periods; and
- establishes that parties to construction contracts need to be aware that a court may give effect to clauses preventing a party from relying on limitation periods in defence of future claims.
New South Wales
The decisions in the New South Wales (NSW) courts:
- clarify the interpretation of the exceptions to the provision making expert determination final and binding under the GC21 contract;
- highlight the need to formalise agreements in writing and keep proper records;
- identify that a statutory exception to the hearsay rule may apply to statements made out of court by non-witnesses, if those statements are contained in business records; and
- confirm that a person who signs an untrue statutory declaration, in support of a payment claim that asserts all subcontractors have been paid, is likely to be held liable to the recipient of the declaration in an action for misleading and deceptive conduct under the Australian Consumer Law.
In addition, the NSW decisions cover:
- circumstances where payment claims will be considered 'personally served';
- the limited circumstances that the courts will grant an injunction preventing payment of an adjudication determination;
- the requirements for obtaining an order for security for costs against a corporation under the Corporations Act 2001 (Cth), instead of relying on rule 51.50 of the Uniform Civil Procedure Rules; and
- the steps required to stop an existing assumption that a party will not rely on notice requirements and time bars.
The decisions in the Queensland (QLD) courts are a reminder that:
- failure to include reasons for withholding in a payment schedule will prevent these reasons from being considered by an adjudicator;
- 'global claims' are liable to be struck out;
- parties to contracts containing an arbitration clause will be required to submit disputes to arbitration, and not seek to circumvent the process through commencing litigation; and
- under the Building Industry Fairness (Security of Payment) Act (BIF Act), adjudicators are limited to deciding the amount of a progress payment by reference to the amount stated in the claim, and may fall into jurisdictional error if amounts outside the payment claim are considered.
In addition, the QLD decisions highlight that:
- if a party wishes to stay a court proceeding and have the dispute referred to arbitration, it must make the application as soon as possible, and before it makes any statement as to the nature of its claim or defence;
- construction contracts can validly deem a particular document to be a payment schedule; and
- a claim under section 100 of the BIF Act, for the recovery of an unpaid progress payment as a debt owing to the claimant, cannot be consolidated with proceedings where counterclaims or defences under the contract are raised against the claimant.
If there is anything in particular you would like us to cover in an upcoming edition, please get in touch with our team.