Building and Construction

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


 

 

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.

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Recent Developments in Pure Economic Loss (27/11/2013)
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.