Building And Construction

(See also under Security of Payments)



Assignment, Novation and Subcontracting: [1994] 1 Building & Construction Law

Implied terms in building contracts – inference or imputation: [1995] 11 Building & Construction Law

Damage without loss – a legal conundrum: [1995] 11 Building & Construction Law

Severability of dispute resolution clauses in contracts: [1994] 12 Building & Construction Law

The impact on contract  upon tortious liability of Construction: [1997] 13 Building & Construction Law

Delay and Disruption: [2001] 17 Building & Construction Law – December

Contractor’s Duty to Warn: The Extent to Which a Contractor is now Liable for Design Defects: [2001] 17 Building & Construction Law – December

Enforcing Security Bonds, Guarantees and Injunctions: [2001] 17 Building & Construction Law – December


Building contracts — Position of superintendent — Principal and agent — Whether superintendent under building contract is as a matter of law an agent of proprietor — Whether any species of implied agency: Abigroup Contractors Pty Ltd v Peninsula Balmain Pty Ltd (No 2) [2001] NSWSC 1016


Contract prohibiting assignment without consent – Effect of failure to obtain consent – Effect on right to claim damages for damage occurring before and after assignment: Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd [1993] 6 All.E.R. 417

Builder’s Lien

Building contracts — Creation of lien — Creation of lien over land in respect of work done: Badge Constructions (SA) Pty Ltd v Rule Chambers Pty Ltd [2007] SASC 417


Building not completed by due date – plaintiff  purporting to terminate  – whether time was of the essence: RJR Holdings v Balleroo (1991) 56 SASR 151

Unregistered builder – Whether prevented from recovering from work done: Steelhomes (1985) Pty Ltd v. Hutts 9 SRWA 143

Contractual right to terminate – whether non-payment of progress certificate entitled respondent to terminate – whether damages flowed from termination: Geraldton Building Co v v Christmas Island Resort (1994) 11 WAR 40

Formation of contract – Parties agreeing on standard terms – Proviso that should contract fail to proceed and be formalised quantum meruit basis applying – Work proceeding on agreed basis – Whether contract existing: Harvey Shopfitters Ltd v ADI Ltd [2004] 2 ALL ER 915 & CA 982

Cost Plus Contracts

Building contracts — Enforceability — Licensed builder — Oral contract — What constitutes written contract – Entitlement to quantum meruit claim – Meaning of “cost plus percentage”: Triple “C” Holdings Pty Ltd & Anor v Hogan & Anor [1983] 1 NSWLR 252

Dispute as to payment of costs incurred by contractor — whether implied term that costs must be reasonably and properly incurred — whether implied term that costs must be incurred in course of best endeavours performance of contract — whether information and evidence about costs incurred must be provided to the reasonable satisfaction of plaintiff: Onesteel Manufacturing P/L v United KG P/L [2006] SASC 119


In claim for damages for breach of contract by owner against builder, the measure of damages is not the difference between the value of the building as erected and the value it would have borne if erected in accordance with the contract, but the cost, in excess of any amount of the contract price unpaid, of reasonable and necessary work to make it conform to the contract plus consequential losses by reason of the breach: Bellgrove v Eldridge (1954) 90 CLR 613; but see Scott Carver Pty Ltd v SAS Trustee Corporation [2005] NSWCA 462; Brewarrina Shire Council v Beckhaus Civil Pty Ltd [2006] NSWCA 361 Westpoint Management Ltd v Chocolate Factory Apartments Ltd;  Chocolate Factory Apartments v Westpoint Finance & Ors [2007]  NSWCA 253 at [41]

Failure of builder to comply with architects instruction – Right of proprietor to do work and recover costs: Corp of Adelaide v Jennings Industries [1985] 59 ALJR 243

Claim by builder for balance of price – counterclaim by proprietor for loss incurred by reason of delay and defective workmanship: Centura Nominees v Pynt 4329/84 Del 4/3/87 Heenan J – District Ct of WA.

Extent of contractual obligations of engineer to design driveway – liability for costs of remedying defects – liability of costs of seeking professional advice – liability in contract and tort – damages for distress and inconvenience: Rowlands v Collow (1992) 1 NZLR 178

Whether damages to be assessed on cost of replacement of flats or remedial work or to restore flats to satisfactory standard – whether costs of most economic remedy for damage caused was proper measure of damages: Lester v White [1992] 2 NZLR 483

Breach of contract – Whether provision in contract precludes damages at common law: Mancorp Pty Ltd v. Baulderstone Pty Ltd (t/a Baulderstone Hornibrook) (No.2) 60 SASR 120

Liabilitity of engineers and architects for subsequent purchasers of commercial buildings – extension of principles of Bryan v Maloney to commercial buildings: The Proprietors Units v Jiniess [2000] NTSC 89.  But see also HC in Perre v Apand Pty Ltd (1999) 198 CLR 180

Duty of care — Pure economic loss — Builders’ duty to remote purchasers — Respondents designed foundations and constructed commercial premises under contract with site owner: Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16

Measure and remoteness of damages in actions for tort – Damages in tort – Negligent advice by architect and engineer- Defective design – Negligent failure to advise re soil condition – Construction of hockey pitch for use also as tennis courts – Whether plaintiffs entitled to damages for construction of pitch to improved design – Whether plaintiffs liable to contribute to added cost of remedial design – Whether deduction for betterment – Measure of damages: South Parklands Hockey and Tennis Centre Inc and Others v Brown Falconer Group Pty Ltd and Others (2004) 88 SASR 65 at 87

Defective building work — Damages — Appeal against judgment awarding damages in connection with building project — Judgment finding of fact that value of property not affected by defects: Scott Carver Pty Ltd v SAS Trustee Corp [2005] NSWCA 462

Damages for rectification of defective work — Owners’ claim for defects — Application for determination of question of law — Applicant town house owners observed building defects and made claim on respondent home warranty insurer for builders: Owners Corporation Strata Plan 64487 v Suncorp Metway Insurance Limited [2007] NSWSC 1165

Defective Work

Damages — Defective work – Determination on applicant’s entitlement to damages: Campbell v CJ Cordony & Sons Pty Ltd [2009] NSWSC 63


In what circumstances owner entitled to return of deposit: MANFAL PTY LTD v LONGUET (1986) 8 IPR 410


Building contract – Rescission – Estoppel – Principles: Tudor Developments Pty Ltd v Makeig [2008] NSWCA 263

Extensions of Time

Building contracts — Building disputes — Extension of time — Appeal against decision of QDC Clemens v Flower [2006] QCA 265; Spiers Earthworks Pty Ltd v Landtec Projects Corporation Pty Ltd (No 2) [2012] WASCA 53; (2012) 287 ALR 360

Consideration of principles relating to prevention in the context of a clause allowing for extension of time where default on the part of the Principal or those for whom or which the Principal is responsible: Turner Corp Ltd (in liq) v Co-ordinated Industries Pty Ltd (1994) 11 BCL 202


Time for payment – head contractor in receivership – subcontractor not paid – change of ownership of contracting party – whether in any event party sued was the proper defendant: Smith v Winstone [1992] 2 NZLR 473

Claim by builder for payment on progress certificates – whether proprietor can raise cross claim in answer: Simon v Fowles [1992] 2 VR 189

Power to suspend works – manner of exercise of notice to show cause: Premist PL v Turner Corp 30 NSWLR 478

Subcontractors — Subcontractor’s charges — Building contractor entered contract with subcontractor regarding building contractor’s contract with Crown — Subcontractor unlicensed — Whether subcontractor had valid claim of charge: Northbuild Construction Pty Ltd v Lockton [2000] 2 Qd R 600

Convictions of company and directors for offences — Offences of entering into contracts for building work and conducting building work without registration — Defence that contracts entered into and work done as agent of registered builder — Defence not valid: Lewkowski v Lilley [2000] WASCA 14

Guarantees and Performance Bonds

Performance bond in relation to building contract – absolute or conditional liability: Burleigh Forest v. Signa Insurance [1992] 2 QdR 54

Building contracts — Irrevocable guarantee securing performance under contract — Application for interlocutory injunction — Injunction to restrain recourse to guarantee — Whether beneficiary entitled to call on guarantee: Baulderstone Hornibrook Pty Ltd v Qantas Airways Ltd [2000] FCA 672

Liquidated Damages

If the liquidated damages clause is held to be a penalty the contractor will be liable to pay such damages as the employer is able to prove but the clause may set the upper limit of the damages able to be recovered: Fraser v Evans [1946] VLR 382 at 385;

On this issue, see also AMEV-UDC Finance Ltd v Austin (1986) 162 CLR 170 at 174, 192.

On a quantum meruit it is no objection that the figure arrived at exceeds the figure payable had the contract been performed: Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234


Building contracts – Settlement of disputes – Mediation clause – Enforceability- Whether proceedings should be adjourned or stayed- Principles involved – Effect of uncertainty in agreement to mediate – discretionary nature of orders to adjourn or stay proceedings – Matters relevant to exercise of discretion: Elizabeth Bay Developments Pty Ltd v Boral Building Services Pty Ltd (1994-1995) 36 NSWLR 709

Misleading and Deceptive Conduct 

Deceptive practices — Tender process — Misrepresentations — Application for determination of preliminary issue — Substantive claim for damages for breach of contract and trade practices: Dockpride Pty Ltd v Subiaco Redevelopment Authority [2005] WASC 211—. .


Mistake — Sub-contract to perform earthworks — Tenderer invited to prepare a Target Guaranteed Maximum Price proposal — Guaranteed maximum price (GMP) contract agreed — Whether tenderer bore risk of design development after finalisation of GMP P Ward Civil Engineering Pty Ltd v Lend Lease Property Services Pty Ltd (formerly known as Civil and Civic Pty Ltd) — Federal Court of Australia — Einstein J — 3 Aug 1999 [1999] NSWSC 727

Progress Claims 

Summary judgment — Application by plaintiff for summary judgment — Substantive application for sums outstanding pursuant to six progress certificates issued under building contract: Main Roads Construction Pty Ltd v Samary Enterprises Pty Ltd [2005] VSC 388

Quantum Meruit

Arbitration clause – unenforceable contract – claim for quantum meruit – enforceable dispute arising “in connection with” building contract: Elkateb v Lawindi 42 NSWLR 351

Building contracts — Whether contract formed — Whether unregistered builder barred from contracting to construct building — Whether unregistered builder barred from making claim for quantum meruit – unregistered builders right to contract: Great City Pty Ltd v Kemayan Management Services (Australia) Pty Ltd [1999] WASC 70

Building and engineering contract — Electric wiring in a boat — Oral agreement to pay reasonable sum — Invoice sum claimed by plaintiff: West Boat Builders Pty Ltd v Cull Holdings Pty Ltd [1999] WASCA 72

Subcontractor – Subcontractor not licensed – entitlement to quantum meruit no licence: De More Constructions Pty Ltd v Garpace Pty Ltd [2002] 53 NSWLR 132


Building contracts — Repudiation — Termination: Sopov v Kane Constructions Pty Ltd [2007] VSCA 257


Building contracts — Rescission — Estoppel: Tudor Developments Pty Ltd v Makeig [2008] NSWCA 263


Position of superintendent — Principal and agent — Whether superintendent under building contract is as a matter of law an agent of proprietor — Whether any species of implied agency: Abigroup Contractors Pty Ltd v Peninsula Balmain Pty Ltd (No 2) [2001] NSWSC 1016 – Reversed on appeal: Peninsula Balmain Pty Ltd v Abigroup Contractors Pty Ltd [2002] NSWCA 211


Building and construction — Building contracts — Variation — Dispute – Arbitration — Natural justice: John Holland Pty Ltd v Roads and Traffic Authority (NSW) (RTA) [2007] NSWCA 19