The Supreme Court of Western Australia has held that under that state’s security of payment legislation, an adjudicator does not have the power to make a determination that requires an applicant to pay the respondent money by reason of any counterclaim raised in the adjudication. An adjudicator may consider the counterclaim, but only in the context of whether any amount is payable to the applicant. A respondent who seeks to recover money by reason of a counterclaim must initiate a separate adjudication. Partner Michael Hollingdale, Managing Associate Jeremy Quan-Sing and Associate Helen Dolling report.

In a decision that has potential implications for a raft of Federal Government programs, the High Court held that legislation, passed to authorise hundreds of government funding arrangements, is invalid insofar as it relates to the national schools chaplaincy program. The decision once again confirms that the Federal executive cannot enter into contracts or authorise spending on a subject matter that it does not have power to legislate for. Partner Paul Kenny and Lawyer Danielle Atkin report.

The WA Supreme Court has provided important clarification on the enforcement of adjudication determinations by the use of statutory demands under that State’s security of payment legislation. It has confirmed that leave to enforce an adjudication determination as a judgment must be obtained before the issue of a statutory demand, and that failing to do so will mean the statutory demand is liable to be set aside. Partner Michael Hollingdale, Senior Associate Jeremy Quan-Sing and Lawyer Brittney Nash report.

Partners Leighton O’Brien and Nicholas Ng provide an overview on public-private partnerships (PPPs) in Australia, examining the general PPP framework, trends in the industry, the procurement process, operation and maintenance, default and termination and financing.

The High Court recently overturned a NSW Court of Appeal decision that stated a building contractor owed a duty of care for pure economic loss for defective work to a successor in title to the developer of commercial premises. Partner Leighton O’Brien and Lawyer William Coote assess the decision and its consequences.

Industry Super Australia’s proposed Inverted Bid Model has generated a lot of interest and discussion. At a recent industry symposium, participants were invited to explore the model, with a view to further refining it for application in the Australian infrastructure market. Partner David Donnelly poses some key questions.

The Federal Government announced late last week that the first agreement under its $5 billion Asset Recycling Initiative has been signed with the ACT Government, demonstrating the Federal Government’s commitment to the Initiative despite the underlying legislation remaining stalled by the Senate. Government sector leader and Partner Paul Kenny, Managing Associate Emin Altiparmak and Lawyer Ellie Mulholland report.

Our Construction Law Year in Review 2014 provides an overview of important construction law decisions and legislative developments in the past 12 months and considers how this may impact on your business.

A principal has successfully challenged a decision to grant an interlocutory injunction restraining it from calling on performance bonds. The Victorian Court of Appeal’s decision reaffirmed the court’s general approach in favour of rejecting such applications where, as in many cases, the purpose of the bond is to provide security and allocate cash flow risk. Partner Nick Rudge and Senior Associate Julian Berenholtz report on the Victorian Court of Appeal decision in Sugar Australia Pty Ltd v Lend Lease Services Pty Ltd and its implications.

The Western Australian Supreme Court has provided additional guidance on the types of errors that can lead to an adjudicator’s determination being quashed by the court. The Delmere Holdings Pty Ltd v Green decision is of interest to anyone who deals with security of payment adjudications under the Construction Contracts Act 2004 (WA). Partner-elect Jeremy Quan-Sing and Law Graduate James Illich report.

The Supreme Court of Queensland recently considered whether liquidated damages in a standard form construction contract were a penalty. In a decision that traversed long-held doctrines on penalties and recent developments in <em>Andrews</em> and Paciocco, the court ruled that the obligation to pay liquidated damages in this case was not penal. Partners Nick Rudge and David Donnelly and Lawyer James Waters report.

With the recent Intergenerational Report having further highlighted the need to deliver social outcomes in an efficient way, Partners David Donnelly and James Darcy report on the potential role of social benefit bonds in providing social infrastructure and services.

The highest appellate court in the UK has affirmed and restated the penalty rule as it applies in the UK in a recent decision that directly addresses, and counters, the High Court of Australia’s approach to the rule in Andrews. Partner Nick Rudge and Lawyer Patrick Easton report.

A recent decision of the UK High Court provides valuable instructions to both financiers and consultants regarding their obligations in monitoring project developments. Partners Nick Rudge (view CV) and David Donnelly (view CV) and Lawyer Patrick Easton report on the decision in Lloyds Bank plc v McBains Cooper Consulting and its relevance to parties to Australian projects.

In a recent decision, the Supreme Court of Western Australia quashed two adjudication determinations on the basis of jurisdictional error. At the core of the decision was a finding that the adjudicator had misapplied the terms of the relevant construction contract. The decision suggests that an expansive approach will be taken to the judicial review of adjudications under the Construction Contracts Act 2004. Partner Jeremy Quan-Sing and Law Graduate James Illich report.

Whether or not to more broadly adopt a ‘user-pays’ model for road infrastructure is a contentious debate within Australia. A number of industry participants and bodies have shown leadership in framing and enriching the debate, while others have sought to politicise or inflame the core issues. Partner David Donnelly considers the current state of the debate on user charges for road infrastructure in Australia.

The Australian Government has identified value capture and innovative financing as key elements of its Smart Cities Plan. The move will have significant implications for traditional project finance. By Paul Kenny, Sector Leader, Government, and Phillip Cornwell, Project Finance, Consultant at Allens.

The Victorian Court of Appeal has confirmed that a dispute resolution clause providing for mediation is insufficient to exclude variations claims from the statutory adjudication process under the Victorian Security of Payment regime. The decision also confirms that, when determining the value of a progress payment, an adjudicator is not required to adopt a valuation certified by the superintendent under the contract. Partner Nick Rudge and Senior Associate Luisa Uriarte look at the decision and the practical ramifications for drafting construction contracts in Victoria.

Partners David Donnelly and Nicholas Ng examine public-private partnerships (PPPs) in Australia, including the year in review, the general framework, bidding and award procedures, recent decisions and the outlook for 2015.

The Supreme Court of Western Australia has dismissed a subcontractor’s application for an interlocutory injunction restraining a call on a bank guarantee. Partners Nick Rudge and Jeremy Quan-Sing and Lawyer Evan Lacey discuss the decision and its implications.