Building and Construction

Chan, Insuring Risk in Construction Projects (2018) 34 BCL 378

Powerpoint for the talks presented at the Thomsen Reuters Building and Construction Law Conference in Sydney and Brisbane in November 2018  on Alternative Dispute Resolution in Construction Project may be viewed here as well.


Powerpoint for talk presented in Chicago at the 2018 International Society of Construction Law conference on Doing Deals and Avoiding Squeals, the successful delivery of infrastructure projects may be viewed here as well.


The enforceability of extended contractual warranties:

The practice has arisen in bespoke contracts for infrastructure projects for contractors to provide extended warranties for the works.   Such warranties can be staggered depending upon the element that the warranty is being provided for and are particular to bespoke contracts. While such clauses have been included in these contracts for presumably appropriate consideration, there is an issue as to the enforceability of such clauses as they may run foul of applicable limitation periods. For example, section 14 of the Limitation Act 1969 (NSW) prescribes a limitation period of six years for causes of action in tort and for breach of contract.  Section 16 of the Limitation Act 1969 (NSW) prescribes a limitation period of 12 years for causes of action founded on a deed. Section 109ZK of the Environmental Planning and Assessment Act 1979 (NSW) however precludes the bringing of a building action more than ten years after the issue of (or when it ought to have been issued) a final occupation certificate. This article explores how the United States, the United Kingdom and Australia have grappled with this issue and considers in light of that jurisprudence whether it is possible to contract out of limitation periods to ensure the enforceability of extended contractual warranties.

Copy of paper presented at the 2016 National Society of Construction Law Conference in Canberra on the issue of the enforceability of extended contractual warranties can be downloaded here: Chan, Enforceability of Extended Contractual Warranties (2016) 32(3) BCL 170


The Lane Cove Tunnel Collapse

In 2003 the NSW RTA awarded Lane Cove Tunnel Company (LCTC) the contract to plan, design, construct, operate and to maintain the Motorway for a period of 33 years with URS Australia in the role of Independent Verifier (IV). LCTC contracted with the Thiess John Holland Joint Venture (TJH) to plan, design, construct and commission the project works including the tunnels. TJH appointed Parsons Brinkerhoff (PB) to provide design consultancy and construction phase services for the civil infrastructure works and engaged Pells Sullivan Meynink (PSM) to overview construction in relation to geotechnical instrumentation, monitoring, tunnel mapping and support. PB, in turn, appointed Coffey Geosciences (Coffey) to carry out geotechnical investigations and to assist in the design of tunnels and retaining walls.

In July 2004 construction of the Lane Cove Tunnel commenced and in the early hours of Wednesday (about 1:40am) 2nd November 2005 a collapse occurred while the intersection of the Marden Street ventilation tunnel (MC5B) and the exit tunnel to the Pacific Highway (MCAA) was being excavated.

The paper on the lessons to be learned by the collapse of the tunnel and the ensuing Supreme Court litigation before McDougall J on the apportionment of responsibility between the contractor and the consultants by Burman, Kotze and Chan, LCT – a forensic review (2018) 53(4) Australian Geomechanics 21 may be downloaded here.


Powerpoint to accompany the first of a series of chatz between Ian Bailey SC and Laina Chanthe video may be viewed at https://youtu.be/TVVSSbLUm0g



International disputes and the execution of foreign arbitral awards in the Asia Pacific (2014) Vol 9 issue 1 Construction Law International 33
By Laina Chan

A study on the difficulties that face the enforcement of foreign arbitral awards in the Asia Pacific, namely in Singapore, Indonesia and Hong Kong.

Download this article here



 

A detailed paper on the subject has been published in [2018] 34 BCL 378 and may be downloaded here.

 


 

 


 

Recent Developments in Pure Economic Loss (27/11/2013) – See also the chapter on professional liability in Bailey, Construction Law in Australia, Thomsen Reuters, 4th edition.
By Laina Chan

In The Owners – Strata Plan No 61288 v Brookfield Australia Investments Ltd [2013] NSWCA 317 (the Brookfield case), developers had contracted with the builder to design and construct a 22 storey building consisting of both residential apartments and serviced apartments in Chatswood. It emerged that there were latent defects in the building. The primary issue was whether the builder owed the Owners Corporation, a subsequent owner, ‘a duty to take reasonable care to avoid reasonably foreseeable economic loss to the appellant in having to make good the consequences of latent defects cause by the building’s defective design and or construction.’At first instance McDougall J held that the builder did not owe a duty of care to the Owners Corporation. In a surprising outcome, the NSW Court of Appeal unanimously overturned this judgment and upheld the appeal.

Download this article here.

 


 

Case note on Malago Pty Ltd v AW Ellis Engineering Pty Ltd [2012] NSWCA 227
By Laina Chan

The NSW Court of Appeal’s recent decision in Malago Pty Ltd v AW Ellis Engineering Pty Ltd [2012] NSWCA 227 has once again demonstrated the willingness of courts to give effect to commercial contracts and its reluctance to hold commercial contracts void for uncertainty.


 

Confidentiality in Special Projects
By Laina Chan

I understand from Kerrie that the flyer for tonight has 2 topics of discussion. I have chosen to talk about confidentiality in special projects. By that I mean the construction of prisons, military bases, military installations, nuclear power stations and even terrorist training camps and any other projects where security, whether national or otherwise, is an issue.