February 3, 2023
Welcome to the February edition of Projects & Construction Monthly.
This edition addresses:
- Recent updates on Major Projects;
- Case Summary – Demex Pty Ltd v John Holland Pty Ltd [2022] QSC 259;
- LPC Lawyers’ ‘Disruption in Construction’ series; and
- Opportunities to join the LPC Lawyers’ team.
Recent Updates on Major Projects
Milestone for Cross River Rail Achieved
The Cross River Rail project has achieved a major milestone with the Roma Street station box reaching ground level, which required 7,520 cubic metres of concrete and 14,700 tonnes of steel.
Construction of the station box will continue with pilling works commencing mid-2023, just before the steel structure for the stations canopy, reaching approximately 23 metres above ground level, is installed.
Australian-First: Rail Technology
Forming part of the Sydney Metro City and Southwest project, a $41 million contract has been awarded to Hyundai Movex for the design, delivery and installation of 150 mechanical gap fillers and 360 platform screen doors across eight stations between Bankston and Marrickville.
This gap filler technology works automatically, extending from the train to the platform before the platform screen doors open. The use of this technology is a first in Australia and seeks to increase safety and accessibility on platforms.
Works associated with these mechanical gap fillers and platform screen doors are expected to be completed within 2023.
Singleton Bypass
The Singleton Bypass project in New South Wales has commenced early works, which includes installing fencing along the corridor, demolishing existing buildings and relocating utilities.
Tenderers for this project’s design and construction works have been shortlisted, with the award of the Design and Construct Contract expected to be announced in mid-2023.
Major construction is expected to commence later this year, with the bypass opened to traffic by the end of 2026.
Case Summary: Demex Pty Ltd v John Holland Pty Ltd [2022] QSC 259
This case is a reminder to confirm any payment claims served by email are received by the intended recipient within the prescribed contractual and statutory timeframes.
Whilst effective service by email does not require awareness of the email by the recipient, this case makes it clear that if a dispute arises in respect of when a payment claim was served, it will be insufficient to provide evidence showing the date the email was sent to establish it was received. This means the date a payment claim is sent via email will not automatically prove effective service occurred.
Facts
Demex Pty Ltd (Demex) was engaged by John Holland Pty Ltd (John Holland) to demolish a bridge in New South Wales (subcontract).
Under the subcontract payment claims were to be submitted via email and sent to the nominated email address on or before the 25th of each month. Further, John Holland was required to provide a payment schedule within 10 business days after receiving a payment claim if it considered the amount payable to be less than the amount claimed.
Demex submitted a payment claim to the nominated email address on Saturday, 25 September 2021. On 12 October 2021, John Holland issued a payment schedule certifying a lesser amount than was claimed by Demex. Demex then issued a tax invoice dated 27 September 2021 for the amount certified, which was paid in full by John Holland on 25 October 2021.
Subsequently, Demex claimed the payment schedule issued by John Holland was invalid as it had not been provided within 10 business days after the payment claim was served.
Held
In dismissing Demex’s application, the court held that it had not proven that John Holland received the payment claim on Saturday, 25 September 2021. Therefore, the payment schedule was issued within the required 10 business day timeframe.
Justice Crowley held:
- effective service had occurred when the payment claim was received by John Holland’s nominated email address under the subcontract;
- Demex had the onus of providing evidence that the payment claim was received on Saturday, 25 September 2021, noting evidence of service is essential and must be proved where ‘draconian legislation requires strict compliance and results in serious consequences for non-compliance’; and
- it could not be accepted that an email is received nearly instantaneously after being sent, and in this case, the only definitive finding of fact was that John Holland had received the payment claim on the following Monday and issued its payment schedule on that basis.
Read the full case here.
LPC Lawyers’ Article Series ‘Disruption in Construction’ Series
Part 1 – Disruption in Construction: An Industry Ripe for Disruption
Disruption on any major project can quickly result in a disaster for any contractor, increasing time related costs and risking lability for liquidated damages to the principal. This article series considers disruption on construction projects, contractor considerations for bringing a successful disruption claim, and the basics around quantifying the additional costs incurred due to disruption on your project. Read more here.
Part 2 – Disruption in Construction: Pathway to a Successful Claim
This article explores the key considerations and steps for a contractor to prepare a robust disruption claim and ensure the best chance of success. Read more here.
Part 3 – Disruption in Construction
Part 3 will explore the basics around quantifying the additional costs incurred due to disruption on your project, and how to determine which quantification method is more appropriate in the particular circumstances.
Stay tuned for this article which will be posted on 6 February 2023.
LPC Lawyers’ Continued Expansion
LPC Lawyers is looking to hire as we head into 2023, with opportunities for growth in our expanding practice.
Litigation Lawyers (1-3 years PAE)
Working closely with an ex-top tier partner, this role is ideal for a candidate who is highly motivated and has experience in drafting correspondence, simple pleadings, briefs for Counsel, and some client advisory work.
Law Clerk
LPC Lawyers’ is looking to hire a law clerk in their third or fourth year of study. The role is for three days per week and includes preparation of legal documents and correspondence, working closely with our managing partner and assisting solicitors with case management, conducting legal research, and general administrative tasks.
For more information about our current career opportunities visit our website here or to apply, please email your resume and cover letter to our Manager of Business Services at [email protected].