Firm foundations year in review_19-01-16_FB

Australia: For the first time in the history of the Construction Contracts Act 2004 (WA) an application for leave to enforce a determination under the Act was refused by theWestern Australian Supreme Court in Harmsely Iron Pty Ltd v James [2015] WASC 10 . Forge (Claimant) was successful at adjudication in respect of a payment claim it submitted prior to entering voluntary administration. Between entering voluntary administration and the adjudicator’s determination, Hamersley Iron had terminated the contract and had recourse to Forge’s security. In arguing that the leave should not be granted to enforce the determinationHamersley argued it was entitled to set off the determination amount against amounts owed by Forge to it pursuant to s553C of the Corporations Act 2001 (Cth). Beech J was forced to consider the purpose of the Construction Contracts Act 2004 (WA) inmaintaining cash flow in the construction industry against the role of the Corporations Act in protecting creditors. The Court found that it would not be a just result if Hamersleywere forced to pay the amount of the determination and then prove the debts owed to it in the liquidation of Forge. Accordingly the court favoured the operation of the Corporations Act over the Construction Contracts Act in this instance. Hong Kong: On 1 January 2015, The Hong Kong International Arbitration Centre (HKIAC) introduced the HKIAC Procedures for the Administration of Arbitration under the UNCITRAL Arbitration Rules. To read more on this, please see page 46. decision, contending that there was no room for incorporating into the subcontract the adjudication provisions of the FA. In particular, under the FA, adjudication was a condition precedent to litigation. This was an onerous provision which required clear words for it to be imposed. The judge agreed that it was not clear that this was the intention, and proceeded to enforce the adjudicator’s decision.

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