Australian Construction Dispute - Report Example

Australian construction dispute By [ name of the author] Australian construction dispute from [name of the organization] [author’s name] [date of fulfillment] Acknowledgment Abstract This is a report that is related to the dispute that often takes place in the construction related case. It is about the mediation and the litigation cases that determined certain norms for all those who are into the trade and are some way or the other may get involved in these legal proceedings. The report aims to show few cases through which the builder can have a clear idea about some of the proceedings that he needs to follow while dealing with his construction business in Australia. All these are supported by the cases that could make the builder or a construction firm aware of the legal conditions in Australia. There are many incidences that could make the study more interesting; however I have chosen a few for my elaboration. Table of Contents Cover sheet Title page Acknowledgment Abstract List of Illustrations Executive Summary The report Conclusion references Appendix Recommendations List of Illustrations 1. Downer Construction (New Zealand) Ltd v Silverfield Developments Ltd, HCNZ, CIV-2005-404-6800 2. Halkat Electrical Contractors Pty Ltd v Holmwood Holdings Pty Ltd [2006] NSWCA 1 3. Meridian Retail Pty Ltd v Australian Unity Retail Network Pty Ltd [2006] VSC 223 Executive Summary In this report I have discussed few of the cases related to the Australian units of constructions. This paper is illustrating some of the cases of dispute that came under legal proceedings in Australia. The paper discusses over the cases of litigation and mediations that had undergone through the cases like, Downer Construction (New Zealand) Ltd v Silverfield Developments Ltd, HCNZ, CIV-2005-404-6800, Halkat Electrical Contractors Pty Ltd v Holywood Holdings Pvt. Ltd [2006] NSWCA 1 and Meridian Retail Pty Ltd v Australian Unity Retail Network Pty Ltd [2006] VSC 223 . The paper also analyses Australian Government Building and Construction OHS Accreditation Scheme. It discusses few of the issues that are the disputes with some sort of resolution and finds some of the conflict management in the construction sector of Australia (Charlton, Ruth; Dewdney, Micheline 2003)1. The paper tries to see the aspects protecting the builders, their businesses and their profession with an appropriate use of professional liabilities. The role played by the political activities is also considered as a part of the report. As a whole the report has been made on the basis of few cases of litigation and mediations that took place in the recent past in Australia. The report According to the Australian Government in order to improve the construction industry’s OHS performance, there has to be a new paradigm where work must be performed safely, on budget and on time. The accreditation as forwarded by Australian Government on 14 March 2006, by the Minister for Employment and Workplace Relations, the Hon Mr Kevin Andrews MP announced that the OFSC has received more than 110 applications for provisional accreditation under the Scheme. It operates according to the existing State/Territory prequalification schemes. It is into the act of encompassing many elements such as finance, OHS and environmental requirements of the country. In contrast, the Australian Government Building and Construction OHS Accreditation Scheme is absolutely concentrating on OHS and is meant for Australian Government funded project only. Violation of any rule under these authorities causes the dispute related claims in both mediation cases and litigation cases. These can be exemplified by Downer Construction (New Zealand) Ltd v Silverfield Developments Ltd, HCNZ, CIV-2005-404-68002. In this case, Justice Harrison, rejected the proposition of the error caused by an arbitrator in ordering a contractor to perform its warranty to construct watertight dwellings. This was an activity the contractor was supposed to accomplish by repairing defective workmanship. The rejection was on the basis of Lord Justice Romer’s statements in Wolverhampton Corporation v Emmons [1901] 1 QB 515 at 524-525 (Wolverhampton). Under this statement the litigations related to the specific performance of building contracts. The flexibility and adaptability of the remedy of specific performance achieved the ends of equity. The case also affirmed that an order for specific performance of a warranty to remedy construction may go through defects. The case was a mediation of a payment claim under the Building and Construction Industry Security of Payment Act 1999 (NSW). In the verge of this legal authorization NSW appealed for a decision of the Supreme Court which held the adjudicator’s determination void. The Supreme Court also made the party, a second payment claim for adjudication. This second claim was the work that was the subject of the first payment claim. The specifications towards the rights of access to the townhouses were the relevant factor in this case. It was not the matter of possession. As a consequence to it, Silverfield had obtained the unit owner’s consent to Downer’s access to effect repairs. As concluded by Justice Harrison “the terms of the order are sufficiently specific and precise to enable this Court or the arbitrator ‘…to satisfy itself, ex post facto¸ if the covenanted work has been done.’” The next instance is about NSW Court of Appeal in Halkat Electrical Contractors Pvt. Ltd. vs Holmwood Holdings Pty Ltd [2006] NSWCA 1253. In the words of Hodgson JA there was constant strain over the limitations of time to appeal in this particular case. As against the abuse of the process, the cases of Walton v. Gardiner (1993) 67 ALJR 485, 177 CLR 378; and Jago v. District Court of NSW (1989) 168 CLR 3; Ridgeway vs The Queen (1995) 69 ALJR 484, 184 CLR 19;were all forwarded by Holmwood. These were the cases that were meant to make the case in favour Holmwood. As a consequence to all these references the Court considered the matter under the Building and Construction Industry Security of Payment Act 1999 (NSW) and gave the decision against the adjudicator shopping in view of the circumstances led by Halkat. the Court decided not to dismiss or stay Halkat’s appeal for abuse of process. There was a subsequent progress claims Halkat referred to section 13(6) of the Act. Under the speculative perspective of this Act it got the permission of including itself in a subsequent progress claim of work that has been included in a previous progress claim. Halkat did not made any further payment claim and additional work. On the contrary it included adjudication determination which did not have defects or possible defects4. It was all free from any kind of cases that could favour a Supreme Court challenge. Hodgson JA observed Halkat’s appeal was successful so that costs incurred by Holmwood in relation to the second payment claim were thereby thrown away. Halkat played a considerable role of satisfactory for the purpose of adjustment of cash flow pending the final determination of the rights of the parties. The Court of Appeal could take into account in making its costs order on the appeal. The next case could be of Meridian Retail Pty Ltd v Australian Unity Retail Network Pty Ltd. in this case the opinion as provided by the High Court was not in favour of rejection to the implication of a good faith obligation in commercial contracts. In the Victorian Supreme Court case, Meridian Retail Pty Ltd vs. Australian Unity5 Retail Network Pty Ltd [2006] VSC 223, Justice Dodds-Streeton gives the ultimate overview of judicial discussion. The implications of a good faith obligation in commercial contracts have been very strictly rejected by the High Court, but not by the lower courts. For lower courts the application of a good faith obligation in commercial contracts is very much favourable. The purpose, however should be to protect a vulnerable party from conduct which undermines the purpose of the agreement. This is considerably the selection of the agreement for the subject of the dispute. Dodds-Streeton J declared that the Australian Unity had not generated any amount of “significant change” and thus cannot be breached to an obligation of good faith. This was declaration that was made “on any of its articulations” held against Australian Unity. It stood for the duty of good faith and thus got implied into a contract while for the sequence where it could meet the criteria set out by Codelfa6. The ultimate verdict states that a duty of good faith should be implied as a matter of law into commercial contracts is uncertain in the application of the proposition. Conclusion The Construction Division of Australia is often associated with the left-wing. It is the left wing of Australian labour movement. The division occupies the conflicts with the Australian Workers Union (AWU) over civil construction projects. It has been found that the reason behind these conflicts is that both unions' rules allow them to cover civil construction sector of the country. They are all related to roads, bridges, dams etc. This has led to several demarcation disputes in the state in the construction sector. None other that clear political negotiation with both the AWU and CFMEU can give the construction unit the best deal in Australia (Boulle, Laurence 2005)7. The scheme is administered by the Office of the Federal Safety Commissioner. references 1. Australian Government Building and Construction OHS Accreditation Scheme, [retrieved on 29.05.08] http://www.mallesons.com/search/search-hithighlight.cfm?hitURL=publications/2006/Mar/8368499w.htm&keyword=mediation%20cases%20of%20construction 2. Boulle, Laurence (2005). Mediation: Principles, Process and Practice. LexisNexisButterworths, Australia, 418. 3. Charlton, Ruth; Dewdney, Micheline (2003). The Mediator's Handbook: Skills and Strategies for Practitioners. The Law Book Company Limited, Sydney, 338. 4. Charlton, Ruth; Dewdney, Micheline (2003). The Mediator's Handbook: Skills and Strategies for Practitioners. The Law Book Company Limited, Sydney, 178. 5. Construction - Australia, n.d., [retrieved on 29.05.08] http://www.mallesons.com/Expertise/construction/5501567w.htm 6. Downer Construction (New Zealand) Ltd v Silverfield Developments Ltd, HCNZ, CIV-2005-404-6800, n.d., [retrieved on 29.05.08] http://www.mallesons.com/search/search-hithighlight.cfm?hitURL=publications/2006/Dec/8733350W.htm&keyword=litigation%20cases%20of%20construction 7. Energy Australia City West Cable Tunnel Project, n.d., [retrieved on 29.05.08] http://www.mallesons.com/expertise/construction/5501567W-03.htm 8. Halkat Electrical Contractors Pty Ltd v Holmwood Holdings Pty Ltd [2006] NSWCA 1, n.d., [retrieved on 29.05.08] http://www.mallesons.com/search/search-hithighlight.cfm?hitURL=publications/2006/Sep/8588365w.htm&keyword=litigation%20cases 9. Meridian Retail Pty Ltd v Australian Unity Retail Network Pty Ltd [2006] VSC 223, n.d., [retrieved on 29.05.08] http://www.mallesons.com/publications/2006/Sep/8588857W.htm 10. Protecting yourself, your business and your profession: Professional Liability-A summary; http://qld.engineersaustralia.org.au/jetspeed/portal/action/MarkRefPage/portlet/EventInfo?jetspeed.event.view=jetspeed.event.view.event&jetspeed.event.id=2866 11. Vicky Watts, August 1998, Law: Construction Law; Building: Construction Law; Dispute Resolution; Dispute Resolution and Conflict Management in Construction; edt. Edward Davies; Peter Fenn; Michael O'Shea, University of Melbourne, Australia, [retrieved on 29.05.08] http://www.informaworld.com/smpp/content~content=a736354742~db=all~jumptype=rss Appendix AWU - Australian Workers Union BLF - Builders Labourers Federation BWIU - Building Workers Industrial Union CFMEU - This was part of the ACTU inspired union rationalization process. FEDFA - Federated Engine Drivers and Firemens Association of Australasia OHS - Occupational Health and Safety. An Accreditation Scheme applies to the Australian Government’s capital works program following the Building and Construction Industry Improvement Act 2005 OPDU - Operative Painters and Decorators Union Recommendations Astor, Hilary; Chinkin Christine M. (2002). Dispute Resolution in Australia. Butterworths, Sydney, 169. Boulle, Laurence (2005). Mediation: Principles, Process and Practice. LexisNexisButterworths, Australia, 82. Charlton, Ruth; Dewdney, Micheline (2003). The Mediator's Handbook: Skills and Strategies for Practitioners. The Law Book Company Limited, Sydney, 338. Priest, M; Scott S (22 July 2005). "Case Closed: Disputes Head Out of Court". The Australian Financial Review. The Royal Commission into the Building and Construction Industry (2001-2003), Royal Commissions Act 1902 Read More