DISTINCTION- Building and Construction Law notes

Description

List of topics included are the topics learnt throughout the semester, this includes: Week 3: Managing Liability – Indemnities, Insurances and Counterparty Risks 5 Indemnities and Releases 5 Duty to Mitigate 5 Cause of Action 6 Limitation of Liability 6 Statutory Liability 7 Indemnities 9 Liquidated Damages 11 Quantum Meruit 12 Key Cases 12 Limitation of Liability 13 Through Contract 13 Proportionate Liability 15 Insurance 16 Insurance for Tunnelling 20 Managing Counterparty Risk 21 Week 4: Type of Contracts 25 Contract Conditions 25 Warranties and Indemnities 26 Standard Form Contract 27 Bespoke Contracts 28 Vienna Convention 28 What is generally included in contract? 29 Preliminaries 29 Technical Documentation and Specifications 29 Role of a Superintendent – Principal’s representative 30 Key Case 31 Material and Equipment 32 Material and Supply contracts 32 Commercial and Legal Considerations 32 Week 5: Site and Planning 35 Site 36 Latent Conditions 38 Tunnelling projects – use of Geotechnical Base Reports (GBR) 41 Third-Party Agreements 43 Planning 44 Week 6: Time 47 Completion Obligations 47 Other Completion triggers 47 Best endeavours and Reasonable Endeavours 48 Liquidated Damages 49 Types of Liquidated Damages 49 Relief from Late Completion 53 Extension of Time (EOT) 54 Delay Costs 54 Key Cases 55 Conditions Precedent 57 Float 57 Drafting Clause regarding Floats 60 Force Majure 61 Drafting Force Majure 62 Week 8: Design, quality and scope 65 Good industry practice – Standard of care 66 Legislative requirements (building) 66 Building information modelling (bim) 66 Intellectual property- types 67 intellectual property rights- practical considerations 68 Example of an IP warranty clauses- as 68 example of an ip clause- as 68 Foreground v background ip 69 copyright 69 Moral rights 69 quality control, defects and rectification 69 Express quality obligations 70 Testing 71 Fit for purpose warranty 71 Practical completion 74 Defects 74 defective work clause- as 75 when can defective work claims be made? 75 What avenues do contractors have to raise a defence for defective work? 76 Defect liability period 77 final certification- as 77 Scope and variation 78 variations clause- as 78 variations 79 australian standards 80 Australian standards compliance- bespoke contract clause 81 week 10- payment 81 contract sum 81 adjustments to contract sum 81 types of payment structures 81 payment structure influence- forex 82 structure types 82 security of payment legislation- security of payment act (sopa) 83 sopa- pay when paid provision 83 sopa process 84 sopa dispute process 84 adjudication process 85 week 11- legislative considerations 85 importance of legislation in delivery projects 85 what happens if there is a change in law? 86 General principles of WHS Law 87 primary duty of a pcbu 87 INdustrial relations legislation 88 Building code of australia 89 building code of australia- model compliance clause 89 building code of australia- model subcontract clause 90 property development 91 Home building act- when does it apply? 91 Building and developers key obligations 91 A developer’s statutory liability for defects 92 what happens if there is a breach? 92 Defences 94 managing liability for defects with builders 94 Insurance requirements 95 Strata schemes management act 2015 (NSW) 95 The strata schemes management act- Defects retention bond 96 Design and building practitioners act 2020 (nsw) 96 indemnification 98 Building products (safety) act 2019 (nsw) 98 Building Products (Safety) Act 2017 98 telecommunications- Telecommunications Act 1997 (Cth) 100 rail- rail safety national law 100 Accreditation - Office of the National Rail Safety Regulator 101 who has responsibilities under rsnl? 101 week 12- Managing disputes 103 types of dispute resolution 103 1. litigation 104 SCNSW Technology and Construction List 104 Monetary jurisdiction 104 Court process 105 summons/list statement – supreme court 105 appointment of a referee- supreme court of nsw 105 case analysis: Harris v Morabito Holdings [2018] nsw sc 912 106 2. Arbitration 107 Domestic arbitration- agreement to arbitrate 107 third parties in arbitration 107 Appointment of an arbitrator 108 Domestic arbitration rules 108 international arbitration 109 3. mediation 111 mediation process 111 mediation rules 111 4. expert determination 111 case analysis: shoalhaven city council v firedam civil engineering pty ltd (2011) 112 security of payment legislation- security of payment act (sopa) 113 sopa process 113 SOPA Dispute process- ADJUDICATION process 113 Dispute resolution under major projects – Linked claims and linked disputes 114