Melbourne Law School - Research Publications

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Start date: 1983 × Type: Conference Paper × Author: Bell, Matthew ×

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    Contract Damages for Defective Construction Work: An Unsolvable Puzzle?
    Bell, M (Society of Construction Law, 2022)
    The paper considers the assessment of damages for defective work and the puzzle posed by rectification damages. It outlines the high-level principles applicable to it in the UK and Australia, and goes on to focus on the 2017 Australian decision of Stone v Chappel. In that case the court distilled the factors relevant to whether it is reasonable to award damages based upon the rectification measure, and provided a ‘shopping list’ of principles, which has been recently borne out in Xtraordinary Constructions Pty Ltd v Luppino. The paper suggests that the approach taken in Luppino demonstrates that the list in Stone is sufficiently flexible and robust and is worthy of consideration in other jurisdictions. However, the author highlights a risk that the codification of factors as expounded in Stone could undermine considerations which should be overarching, such as the need for the building to be safe for all occupants. He warns that a potential disparity in bargaining positions could encourage builders to reflect these factors in their contracts in order to preclude arguments that residents should expect anything better than a baseline level of quality. For these reasons, the paper suggests that it should be an overriding factor within any adopted menu of elements that rectification be deemed reasonable to the extent that the defect threatens the health and safety of occupants of the building.
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    Security of Payment in the Construction Industry: Does International Experience Provide a Crystal Ball for North America?
    Bell, M ; Ennis, C ; Juddoo, A ; Rajoo, S ; Reynolds, B ; Vogel, S (Society of Construction Law North America, 2018)
    Over the past two decades, more than a dozen jurisdictions around the world have enacted legislative reform programs to promote ‘security of payment’ within their construction industries. There are two linked foundations to these reforms: ensuring prompt payment for work done, and rapid interim adjudication of disputes over the amount of payment due for that work. This paper examines the reform processes currently underway in North America, focusing on those recently implemented in Ontario, Canada. It then draws on the experience in several other jurisdictions which have had security of payment legislation in place for some time (the UK, Ireland, the Australian states and territories, New Zealand, and Malaysia), along with proposed legislation in Mauritius, in order to distil lessons which can be applied for the benefit of the reform programs in North America. These include the need for clarity and, to the extent possible, cross-border consistency in the drafting and application of the elements of the schemes.