Full Title
Copyright
Foreword to Fifth Edition
Foreword to First Edition
Preface
Table of Cases
Table of Statutes
Table of Contents
CHAPTER 1 BUILDING CONTRACTS
INTRODUCTION
Need for agreement
Mutual manifestation of assent
Objective nature of agreement
Principal types of contract
LUMP SUM CONTRACTS
Nature of contract
Types of lump sum contract
SCHEDULE OF RATES CONTRACTS
Nature of contract
Contents of schedule of rates
Essential characteristics
COST PLUS CONTRACTS
Nature of contract
Bonus or penalty provision
CHAPTER 2 CONTRACT DOCUMENTS
DOCUMENTATION
Building contracts
Kinds of contract documents
Main standard forms
Other standard forms
INTERPRETATION OF CONTRACT DOCUMENTS
General approach
Internal aids to construction
Effect of printed word
Words struck out
Conflicts in and between documents
Reasonableness
Unconscionability
Oral contracts and printed conditions
Contra proferentem rule
Parol evidence rule
Surrounding circumstances
Prior negotiations
Subsequent conduct
Terms describing building to be erected
Meaning of buildings
CHAPTER 3 CONTRACTUAL DOCTRINES
UNCERTAINTY
Generally
Standard form contracts
Indefinite agreements
Blanks not completed
ILLEGALITY
Contracts contrary to statute
Restitution
Registration of builders
WAIVER
Concept of waiver
Contractual provisions
RECTIFICATION
Generally
Requirements for rectification
CHAPTER 4 IMPLIED TERMS
IMPLICATION OF TERMS GENERALLY
General position
Business efficacy
Trade custom or usage
PARTICULAR IMPLIED TERMS
Workmanship
Materials
Best endeavours
Efficacy of works
Compliance with regulations
Sale of house to be erected
Time for completion
Permits
Possession of site
Sufficient working space
Revocation of contractor’s licence
To employ contractor
Progress payments
Ancillary work by public authority
Builder’s entitlement to indemnity
Architect’s availability
CHAPTER 5 TENDERS
TENDERS GENERALLY
Meaning of ‘tender’
Tender documents
TENDERING
Invitation to tender
Conforming and non-conforming tenders
Cost of tendering
Letters of intent
WITHDRAWAL OF TENDER
By tenderer
By subcontractor
RECALL AND ACCEPTANCE OF TENDERS
Recalling tenders
Acceptance of tender
ESTIMATES AND STANDING OFFERS
Estimates
Standing offers
COLLUSIVE TENDERING
Practice of collusive tendering
Common law cases
Statutory position
CHAPTER 6 TIME FOR COMPLETION
GENERALLY
Time requirement
Bonus or damages
LIQUIDATED DAMAGES PROVISIONS
Liquidated damages or penalty
Doctrine of penalties
FORFEITURE CLAUSES
Forfeiture of deposit
Other forfeitures
LOSS OF RIGHT TO LIQUIDATED DAMAGES
Generally
Prevention by proprietor
Waiver
Determination of contract
STANDARD FORM PROVISIONS
Suspension of works
Time extension for delay
Recovery by builder of damages or costs and expenses due to delay
CHAPTER 7 RISE AND FALL CLAUSES
GENERALLY
Principle of rise and fall
Rise and fall clauses
Origins and purposes
Interpretation
Advantages
KIND OF CLAUSES
Two kinds of clause
Cost-based clauses
Formula-based clauses
UNCERTAINTY
Doctrine of uncertainty
Effect of uncertainty
Drafting rise and fall clauses
Cases on rise and fall
Arbitration clauses
UNCONSCIONABILITY
Statutory regulation
CHAPTER 8 PAYMENT
ENTIRE CONTRACTS
Doctrine of entire contracts
Substantial performance
Repudiation
Taking benefit of work
Progress payments
Payments and acceptance
Security of payment
QUANTUM MERUIT
Generally
When quantum meruit arises
Entire contract
Onus of proof
INACCURATE INFORMATION SUPPLIED TO CONTRACTOR
Contractual liability
Other liability
Contractual provisions
Negligent misrepresentation
WASTED PRE-CONTRACT EXPENDITURE
Principle of restitution
Relation to doctrine of unjust enrichment
CHAPTER 9 APPROVAL AND CERTIFICATES
APPROVAL
Overriding requirement
As condition precedent
Dishonest disapproval
CERTIFICATION
Actual certification
Certifying by implication
Certification or reasons for refusal
Progress certificates
Final certificates
Fraud or collusion
Other disqualifying circumstances
Secret agreement
Subservience and independence
Right to be heard
Arbitration clause
Court’s power to reopen
Certificate attacked as erroneous
Withdrawal or amendment of certificate
PROGRESS CERTIFICATES
Progress payments
Interest
Security of payment legislation
Progress claims: standard ABIC clauses
CERTIFICATE OF PRACTICAL COMPLETION
Meaning of ‘practical completion’
Importance of practical completion date
Occupancy before practical completion: standard provisions
Performance or guarantee bonds
FINAL CERTIFICATES
CHAPTER 10 VARIATIONS
GENERALLY
Terminology
Contractual provisions
ORDERING VARIATIONS
Power to order variations
Power not unlimited
Valuation of variations; contract adjustments
Orders in writing
Absence of written order and recovery
Implied promise to pay
Certification
Drafting guarantees
Arbitration clause
Waiver
EXTRAS AND OMISSIONS
Extras
Omissions
CHAPTER 11 DEFECTS AND DAMAGES
GENERALLY
Defects and defects liability periods
Builder relieved of liability by instructions
DAMAGES
Purpose of damages
Measure of damages
Demolition or repair costs
Design engineers
Date when damages should be assessed
DAMAGES RELATED ISSUES
Time a cause of action arises
Extinguishment of cause of action
Mitigation
Different work undertaken
Profit on sale
Plaintiff s use of damages award
Repairs paid for by others
Damages for stress
Damages for inconvenience
OTHER REMEDIES
Specific performance
CHAPTER 12 DETERMINATION
INTRODUCTION
Kinds of determination
Abandonment
EXPRESS POWERS OF DETERMINATION
Proprietor’s powers
Builder’s powers
REPUDIATION
Meaning of ‘repudiation’
Instances of repudiation
Effect of repudiation
Acceptance of repudiation and damages
ISSUES IN DETERMINATION OF CONTRACTS
Method of giving notice
Contents of default/show cause notice
Premature notice of determination
Reasonableness in assessing whether cause has been shown
Reasonable diligence
Notice of determination given unreasonably or vexatiously
Power to determine and to accept repudiation
Completion at builder’s cost
Ousting contractor from site and use of builder’s plant
Measure of damages where proprietor repudiates
CHAPTER 13 ASSIGNMENT
ASSIGNMENT GENERALLY
Nature of assignment
Rights and liabilities
ASSIGNMENT OF RIGHTS
Generally
Formalities for equitable assignments
Assignee takes subject to equities
Statutory assignments
Nature of rights assignable
ASSIGNMENT OF LIABILITIES
Assignment of liabilities
Vicarious performance
PROHIBITION OF ASSIGNMENT
Contractual provisions
Issue of ‘final say’
Effect of prohibition on assignment
CHAPTER 14 SUBCONTRACTS
SUBCONTRACTS GENERALLY
Subcontracts
Meaning of ‘subcontractor’
Types and form of subcontracts
RELATIONSHIP BETWEEN PROPRIETOR AND SUBCONTRACTOR
Payment of subcontractor
Issues in statutory schemes for payment
Warranties
Express warranties
Negligent misrepresentation
OTHER ASPECTS OF SUBCONTRACTS
Pay when paid clauses
Retention moneys
Liability under subcontract to head contractor for breach of contract
Liability of head contractors to employees of subcontractors
Compromises
Materials on site
Incorporated terms of the head contract
Nominated subcontractors
Prime cost and provisional sums
CHAPTER 15 BILLS OF QUANTITIES
INTRODUCTION
Nature of a bill
Quantity surveying
SECTIONS OF A BILL
Preliminaries
Measured work
Provisional items
Total of tender
Function of bill
PREPARING A BILL
Formulating a bill
Quantities not furnished
PRICING THE BILL
Estimators
Amount of tender
CONTRACTS AND QUANTITIES
Contracts incorporating quantities
Quantities when not part of contract
Guarantee of quantities
QUANTITY SURVEYORS
Profession of quantity surveyors
Work of quantity surveyors
Liability of quantity surveyors
CHAPTER 16 NEGLIGENCE: BUILDERS, LOCAL AUTHORITIES AND OTHERS
INTRODUCTION
Building cases generally
Trend towards negligence
NEGLIGENCE
Meaning of negligence
Elements of cause of action
Duty of care
Breach of duty
Loss caused by the negligent act
Measure of damages
Limitation period
BUILDERS, LOCAL AUTHORITIES AND OTHERS
Builders
Local authorities
Statutory provisions
CHAPTER 17 ARCHITECTS AND ENGINEERS
GENERALLY
Architects
Engineers and superintendents
ARCHITECTS
Registration
Duality of role
Duty in certification
Remuneration
Estimates
Appointment of substitute
Copyright
Duty to client
Duty of supervision
Practice of other architects
Duty to third parties
ENGINEERS
Role of engineer
Duty to client
Copyright
Negligent certification
Departure from design standard
Duty to third parties
CHAPTER 18 BUILDING DISPUTES
INTRODUCTION
Disputation
Avenues for resolution
LITIGATION
Jurisdiction of courts
Procedure
Specialist building cases lists
Separate or preliminary questions
Offer of compromise
Expert evidence
References out of court
Special referee
View
ALTERNATIVE DISPUTE RESOLUTION
Growth in ADR
Types of ADR
Executive meetings
Mediation
Conciliation
Other forms of ADR
Arranging mediators/conciliators
ARBITRATION
Nature of arbitration
Governing legislation
Arbitration agreement
Standard form clauses
ABIC MW
FDIC contracts
‘Dispute’
Option to arbitrate
Appointment of arbitrator
Arbitrator’s remuneration
Ambit of jurisdiction
Determining the validity of the contract
Non-arbitral settlement
Procedure
Conduct of arbitration
Natural justice
Duties of parties
Removal of arbitrator
Interlocutory orders
Award
Interest
Costs
Stay
Judicial review
Enforcement
Liability of arbitrator
Scott v Avery clauses
STATUTORY TRIBUNALS
Victorian civil and administrative tribunal
Building appeals board
CHAPTER 19 BUILDING OPERATIONS
ISSUES RAISED
Adjoining owners and occupiers
TRESPASS
Generally
Airspace
Remedies for trespass
NUISANCE
Nuisance generally
Private nuisance
Creation of a nuisance
Adopting or continuing a nuisance
Interference resulting in material damage to land
Interference with amenity or personal enjoyment of land
Noise, vibration and dust
Remedies
Damages
EASEMENTS
Easement formation
Interference with easements
Easements of light
Extinguishment by unity of seisin
Abandonment
What constitutes infringement?
Implied easements and the rule in Wheeldon v Burrows
Implied easements supplementing a formal grant of land
Easements of necessity
Easement of air
RIGHTS OF SUPPORT
Nature of right
Support of buildings
Interference with right of support
New building on dominant land
Stranger liable without easement
Duty of care when excavating
UNDERPINNING
Generally
Victorian statutory scheme
Breach of statutory duty
Damages
Index