Australia: In BroadviewWindows Pty Ltd vArchitectural Project Specialists Pty Ltd [2015] NSWSC 955 (9 July 2015) theNSWSupreme Court confirmed that, where a construction contract does notmake express provision for the timing ofmaking progress payments, a claimant will be entitled to rely on the times formaking progress payment under s8(2)(b) the Building and Construction Industry Security of Payment Act 1999 (NSW), which allows for progress claims every month during the course of the project and for 12 months from the date when construction work was last carried out. Thismeans that a claimant can continue tomake payment claims everymonth for 12months, evenwhere nonewworkhas been carried out, and extends to situationswhere the contract has been terminated. Accordingly, a principal is essentially on risk to be liable for further payment claims for 12months. In relation to ground (1) the Court of Appeal confirmed the approach required by clause 4.12, “The contractor must draw upon its own expertise and its experience of previous civil engineering projects. The contractor must make a reasonable assessment of the physical conditions which it may encounter. The contractor cannot simply accept someone else’s interpretation of the data and say that is all that was foreseeable.” In relation to ground (2) the Court noted that the first instance decision relied on a finding of fact following “heated discussion” during the trial and as such could not be re-opened. Ground (3) arose out of AGG’s termination of OHL’s engagement on grounds that it failed to comply with a notice to correct, and abandoned or failed to proceed with the works. In considering OHL’s failure to proceed the Court relied on the decision in Sabic v Punj Lloyd [2013] , noting that there had been a serious breach of clause 8 (the obligation to proceed with the works with due expedition) which “is not directed to every task on the contractor’s to-do list. It is principally directed to activities which are or may become critical”. OHL had no excuse for its failure to proceed with the tunnelling works. UK: In Obrascon Huarte Lain SA v HM Attorney General for Gibraltar [2015] EWCA Civ 712 , the Court of Appeal unanimously dismissed an appeal against Akenhead J’s decision that the employer (AGG) was entitled to terminate the contractor’s (OHL’s) engagement under a contract based on the FIDIC yellow book. The appeal was based on three grounds: 1. That the court had wrongly rejected OHL’s claim for relief arising from unforeseeable physical conditions under clause 4.12 2. The court had erred in failing to find that certain engineer’s documents constituted variations under clause 13.1 3. The court had erred in finding AGG had validly terminated the contract under clauses 15.2 (a), (b) and (c)(i)
15
Made with FlippingBook flipbook maker