The Cornwalls Building & Construction team in Melbourne has recently acted for clients who achieved successful outcomes in the following matters:

Matter 1- Building Contract Adjudication

We acted for a domestic builder who was engaged by a developer to construct six (6) town-houses. The developer purported to terminate the building contract, took possession of the site and withheld the final payment.

Cornwalls acted for the builder in responding to the purported termination of the building contract, advised on the payment claims and then acted for the builder who applied for an adjudication under the Building and Construction Industry Security of Payment Act 2002 (Vic). The adjudication application under the SOP Act was successful for our client who received a payment within 45 days of commencing the adjudication application.

Two issues successfully addressed in the adjudication included whether the owner was a ‘developer’ for the purposes of the SOP Act (noting that in most cases the SOP Act does not apply to domestic building works as between a home owner and builder) and whether certain variation works could be claimed in full under the provisions of the SOP Act.

Matter 2- Sporting Stadium Upgrade

We acted for an AFL sporting club in drafting a contract for the refurbishment and upgrade of their stadium. Timeframes for costing, contracting, subcontracting and construction were tight owing to the high usage of the facility. The construction contract needed to be hybrid as a consequence. We worked cooperatively with the club and its chief project consultants to get the project underway on time.

Matter 3 – Final Payment Claim

We acted for a fit-out subcontractor who was engaged to provide the fit-out and joinery for a high-end commercial restaurant. The builder refused to pay the final payment claim. The subcontractor, pursuant to an adjudication application under the SOP Act, successfully recovered the bulk of the amount owed. Issues included the absence of a formal building contract, questions about entitlement to claim monies for variations of various classes and whether an original payment claim had been withdrawn.

Matter 4- Fee Reimbursement

We acted for a developer who engaged a project manager and architect (Project Manager) to conduct feasibility inquiries, formulate a development plan for a site and prepare the necessary planning permit applications for the project. The developer paid the Project Manager 100 percent of the fee for the services as an upfront deposit. After an unsuccessful planning outcome at VCAT the developer decided to put the project on hold. The developer successfully recovered the majority of the fee which had been paid to the Project Manager (who had refused to repay any funds) minus a reasonable allowance for the services it had performed. The matter involved issues such as whether the deposit paid to the Project Manager contravened applicable limitations in section 11 of the Domestic Building Contracts Act 1985 (Vic) and interpretation of the underlying contract.

The Team

Richard Hutchings

PARTNER, MELBOURNE

John Hutchings

PARTNER, MELBOURNE