Although AS 4000 is one of the most widely used construction contracts in Australia, many people remain unfamiliar with the detail. You can find our easy to understand explainer right here. The ...
A shareholders agreement will normally address the situation where one or more parties wish to exit the venture, or where there is a falling out between shareholders. This article explains some of ...
Early contractor involvement (or 'ECI') is a method of construction contracting that allows a builder to become involved, and potentially start work, before the design has been completed.
A fiduciary duty exists where a person or company is required to put another person's interests before their own. It arises from a relationship of trust and confidence, such as the relationship ...
The 'prevention principle' is a legal doctrine that protects a contractor from liquidated damages for delays caused by the principal. The basic idea is that a party to a contract should not be ...
AS 4000, more formally known as the Australian Standard AS 4000-1997 General Conditions of Contract, is one of the most widely used forms of head contract for construction projects in Australia.
With businesses conducting the majority of their day-to-day communications by email, it can be easy to assume that email will be a valid form of communication under a contract. However that will ...
A joint venture is an arrangement where different people or businesses combine resources to achieve a common objective. In some cases, they create a new company (an 'incorporated joint venture'), ...
This article explains how to claim an EOT, and addresses some of the areas where mistakes are often made.
Usually, yes. A contractor will normally remain liable for defects after the defects liability period has expired. This article addresses a common misconception about the defects liability period ...
Below is a list of recognised legal recruiters in Sydney, including a number of executive search firms.
Sometimes called a 'deed of adherence', a deed of accession is a deed that binds a person to an existing shareholders agreement.
A latent condition clause regulates the contractor's ability to make claims for unexpected site discoveries. There are 5 key elements to any latent condition clause.
In a shareholders agreement, tag along and drag along rights are two very different things, designed to serve completely different purposes.
As a minority shareholder, your rights will be limited. However there are a few basic protections you may consider asking for before you invest.
If you are selling shares in a private company, the buyer will almost always seek warranties. In this context, a warranty is a promise you make about the thing you are selling.
The federal government has introduced legislation that outlines new protections for whistleblowers, and requires public and large private companies to have a whistleblower policy. The laws are ...
The defects liability period (or 'DLP') is a fixed period of time, starting from the date of practical completion, during which the contractor has an express contractual right to return to the ...
The basic idea of any employee share scheme is to give participants the opportunity to acquire equity in the company, or to provide an incentive that is roughly equivalent. There are different ...
Time bars prevent a party from exercising a right under a contract outside a prescribed timeframe. The general rule is that time bars are enforceable, although there can be exceptions.
In NSW at least, the date of 'practical completion' under an unamended AS 4000 is the date the certificate of practical completion is issued - even if the works have reached practical completion ...
A joint venture agreement sets out the parties' rights and obligations in relation to a joint venture. It explains who will contribute what, how decisions will be made, and how profits and ...
A share sale agreement sets out the terms on which shares in a company are to be sold. Although there is no standard form share sale agreements tend to cover the same general territory, as ...
Separable portions are a common feature in Australian construction contracts. It is important to understand when they can be used, and how they sit within the broader contractual framework.
A heads of agreement is a short, interim agreement that parties use before negotiating and finalising a formal agreement. They are also known as a ‘terms sheet’ or ‘memorandum of understanding’ ...
Sham contracting is where a person is treated as an independent contractor, even though they are (in reality) an employee. It's a practice that raises a number of risks for employers.
It all depends. You could do the job for next to nothing, or you could end up spending tens of thousands. Whether you're getting value for money really depends on what you are trying to achieve.
When you think of performance security under a construction contract, cash retentions and bank guarantees come to mind. However they are not your only options.
Construction contracts usually contain specific procedures for claiming a variation - which, if not followed, can result in your entitlement to claim being lost. There are six basic steps to ...
The key to negotiating indemnities is understanding how they work in the first place. This post covers the basics, with practical suggestions.
Shareholder oppression involves conduct by the majority shareholder(s) that is unfairly prejudicial to the interests of the minority. The courts are able to provide a variety of remedies to ...
Tag along rights give a shareholder the right to join (or 'tag along' with) another shareholder if they find a buyer for their shares. They can be an important protection for minority shareholders.
Most informed principals consider AS 4000 to be too heavily weighted in favour of the contractor. Consequently, it is fairly normal to see AS 4000 issued with amendments or special conditions. ...
A qualifying cause of delay under AS 4000 is a delay for which the contractor can claim an EOT. The specific qualifying causes of delay are explained in more detail below.
The information in a legal salary guide is often meaningless and tends to focus your attention on the wrong things. Although there are times when they might come in handy, you need to be wary of ...
Company directors have a number of different duties and obligations, and a breach can have serious consequences for you personally. There are several things you can (and should) do to reduce your ...
Job hunting as a 0 - 2 PAE commercial lawyer can seem overwhelming, especially in a saturated market. Here are our top 5 tips for finding your next job.
A shareholders agreement explains how the company will be run, how decisions will be made, and what happens when shareholders disagree or someone wishes to exit. It governs all of the key aspects ...
This article explains how to claim a variation under AS 4000. It includes a flowchart to explain the process.
If you receive a payment claim under the Building and Construction Industry Security of Payment Act 1999 (NSW), you have limited time to prepare a payment schedule. This article explains how to do ...
An officer's deed of indemnity is a deed signed by a company that is intended to protect you against claims made by third parties.
Both AS 2124 and its successor AS 4000 are widely used forms of construction contract in Australia. Although they have many similarities, there are some significant differences.
A recent case in NSW shows that a superintendent can be required to grant an EOT even where the contractor is barred from claiming one. Whether this is the case for you will depend on the terms of ...
The Australian Standard AS 2124-1992 General Conditions of Contract remains a widely used form of construct only head contract, despite it having been succeeded by AS 4000-1997 and now being ...
The purpose of the security of payment legislation is to promote cashflow down the contracting chain. It does this in two ways. First, it contains a number of general protections for contractors. ...
This article explains how to make an effective payment claim under the Building and Construction Industry Security of Payment Act 1999 (NSW).
Arbitration and mediation are two very different processes that allow parties to resolve disputes outside of court. Mediation involves a facilitated negotiation, whereas arbitration involves a ...
Drag along rights can be an important protection for a company's founding or controlling shareholders. Here's what you need to know.
The much anticipated national review of security of payment laws by John Murray AM was released by the Federal Government on 21 May 2018.
The purpose of warranties in a share purchase agreement is often misunderstood by purchasers. There are a number of factors to consider before requesting or relying on a warranty in your ...
A provisional sum is an allowance included in a fixed price construction contract for an item of work that cannot be priced by the contractor at the time of entering the contract.
This article explains practical completion under AS 4000 - what it is and the notice requirements for claiming.
Having spent years in a large law firm, it’s easy to think that your options for a successful legal career are limited. However, most lawyers who make the move into a smaller environment report ...
Clause 35.5 identifies the causes of delay for which the contractor can claim an extension of time under AS 2124. Compared with other forms of contract, the list of qualifying causes is ...
For most junior lawyers, it's BigLaw or it's nothing. This is a curious phenomenon, given how many experienced practitioners (having done their time) prefer to steer clear of the big firms, and ...
Although a final certificate is intended to mark a point of finality under a construction contract, a final certificate may not be as ‘final’ as you might think.
An early works letter is a practical way to get started on a project before the formal contract is finalised. Properly prepared, an early works letter will give both parties protection before the ...
A shareholders agreement sets out the rights and obligations between the shareholders of a company. It is normally signed by the shareholders and the company itself. It is separate from the ...
Victoria’s security of payment is different to its interstate equivalents, in that it prohibits certain types of variation from being claimed under the Act. The provisions are complex, and ...
A recent decision by the Fair Work Commission helpfully summarises when a dismissal for poor performance is an unfair dismissal for the purposes of the Fair Work Act.
The Australian Consumer Law can protect small businesses from unfair contract terms in standard form contracts. This article explains when and how this legislation applies.
This article explains how to make a claim for a latent condition under AS 4000. It includes a flowchart to explain the process.
A shareholders agreement template may look like an appealing solution. But there are a number of reasons why you should be very wary of them.
If your company has (or will have) more than one shareholder, you should consider having a shareholders agreement. This article explains why and answers a few other frequently asked questions.
Data released by the Department of Fair Trading provide a number of interesting insights about the use and application of the security of payment legislation in NSW.
The Australian Government has appointed John Murray AM to review the security of payment ...
An early payment claim made in NSW or Queensland will have no effect under the security of payment legislation. In Victoria however, the position may be different.
Every year there are a handful of cases and other developments that get construction lawyers talking. Here are our top picks from 2018.
Two recent High Court cases have confirmed that you cannot set aside an adjudication determination under the security of payment legislation merely because of an error of law, such as a mistake by ...
This article explains how to claim an extension of time (EOT) under AS 2124. It includes a flowchart to explain the process.
If you’ve searched for a job, it’s likely that you would have consulted Glassdoor. In case you haven’t, Glassdoor allows current and former employees to post anonymous reviews of a workplace’s ...
This article explains how to claim a variation under AS 2124. It includes a flowchart to explain the process.
There is a common misconception that employee share and option schemes (ESOPs or ESS's) are the exclusive domain of tech start-ups and large corporates. However there are a number of reasons why ...
On 21 November 2018 the NSW Government approved amendments to the Building and Construction Industry Security of Payment Act. The changes have not yet taken effect, and are not likely to take ...
This article explains the meaning of 'latent condition' and looks at the relevant definitions in some of the more commonly used forms of construct contract.
As a source of independent personal counsel, practical guidance, connections and suggestions, having a mentor can assist with accelerating your career. But with so many junior lawyers around, and ...
This article explains practical completion under AS 2124 – what it is and the notice requirements for claiming it.
This article explains how to make a claim for a latent condition under AS 2124. It includes a flowchart to explain the process.
A buy-sell agreement allows you to buy out a co-owner of your business if they die or become permanently incapacitated.
This page explains how to respond to an adjudication application under the Building and Construction Industry Security of Payment Act (NSW).
Many principals consider that parts of AS 2124 are too heavily weighted in favour of the contractor. Because of this, AS 2124 is regularly issued with amendments or special conditions. This ...
This article explains the different types of construction contract, and explains how to choose the right type of contract for your next project. Although the same general principles should apply ...
Yes it can, according to the NSW Court of Appeal. If a contractor assigns an invoice to a debt factor, the contractor may lose its rights under the security of payment legislation in relation to ...
The hardest part of choosing a new business name is to find a good one that’s not already taken. This isn't just from a branding perspective - it's also important from the perspective of avoiding ...
This page explains how to make an adjudication application under the Building and Construction Industry Security of Payment Act (NSW).
If onerous notice or time bar clauses are to be regulated by the security of payment legislation, a simple (prescriptive) solution might be the best answer.
Crowd-sourced equity funding for unlisted public companies came into effect on 29 September 2017. At the moment, the regime will only be available to public companies. However, in a significant ...
Legislation has recently been passed by the NSW and Commonwealth Governments to combat modern slavery. This article summarises the changes and identifies the key steps you will need to take to ...
This article explains how to make a claim for a latent condition under AS 4300. It includes a flowchart and form to explain the process.
This article explains how to claim an extension of time (EOT) under AS 4300. It includes a flowchart to explain the process.
This article explains practical completion under AS 4300 – what it is and the notice requirements for claiming it.
From time to time, most businesses encounter a customer who is either unwilling or unable to pay. There are however a few things you can do to minimise the risk of non-payment.
