July 7, 2023
Welcome to the July edition of Projects & Construction Monthly.
This edition addresses:
- Recent updates on Major Projects;
- Case Summary – Perera v Bold Properties (QLD) Pty Ltd [2023] QDC 99;
- LPC Lawyers’ ‘The Power of Disclosure’ series;
- LPC Lawyers’ ‘Navigating Quantum Calculation’ series;
- LPC Promotions; and
- Opportunities to join the LPC Lawyers’ team.
Recent Updates on Major Projects
Mt Rawdon Pumped Hydro Project
As the Mount Rawdon Gold Mine is due to cease mining in June 2023, the Mount Rawdon Pumped Hydro Project will repurpose the mine pit through the development of a pumped hydro electricity generation facility.
Pumped hydro uses two water storages which will comprise of a lower storage formed by the decommissioned mine pit and upper storage formed by a purpose-built valley fill dam, that will be connected to generate electricity.
This project will aim to help Queensland meet its target of 50% of energy generation from renewable sources by 2030, with construction set to commence in 2024.
Paralympic Centre of Excellence
A jointly funded project by the Queensland Government and University of Queensland are set to construct a the Paralympic Centre of Excellence (Centre), to be based at the University’s St Lucia campus. The Centre will be a world-leading facility helping participation and training for para-athletes in the lead-up to the 2032 Brisbane Olympic Games.
Construction is expected to begin in 2025 and be completed in 2028.
Paradise Dam Improvement Project
The Paradise Dam, located 20km north-west of Biggenden, is a key component of the Bundaberg Water Supply. A project is currently underway to restore the Paradise Dam to its full 300,000ML capacity.
Road improvements to upgrade 10km of Paradise Dam Road are now underway and Road Outlet works to replace the dam’s irrigation valves are expected to be completed next month.
Major works on the dam are expected to commence in 2024.
Case Summary: Perera v Bold Properties (QLD) Pty Ltd [2023] QDC 99
The decision in Perera v Bold Properties (QLD) Pty Ltd [2023] QDC 99 (Perera Case) serves as a reminder for builders to have their domestic building contracts reviewed regularly to ensure they comply with the relevant requirements in Schedule 1B of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act).
If a domestic building contract price exceeds $20,000 and contains a provision enabling the contract price to be changed, the contract must contain a warning as provided in section 14(6) of Schedule 1B of the QBCC Act. A provision purporting to change the contract price in the absence of a warning will be void, including all clauses that could result in price changes such as variations, latent conditions and delay costs.
Facts
Mr and Mrs Perera (applicants) entered into a New Home Construction Contract with Bold Properties (QLD) Pty Ltd (respondents) which provided the contract price for a fixed sum of $645,370.
On the first page of the body of the contract provided a warning passage that stated the contract price is subject to change and provided specific clauses that allow for the changes. A clause within the special conditions, attempted to amend the warning passage by stating (in addition) that the special conditions and the tender conditions allow for changes to the contract price.
Shortly after contract execution the respondent relied on the special conditions to inform the applicants that the anticipated start date would not be met due to delays and increased costs of building materials and intended to increase the contract price by $51,342.
The clause relied upon stated that ‘in the event that commencement has not taken place by the anticipated start date… the builder reserves the right, at the builders sole discretion, to increase the contract price…’.
The applicants affirmed the contract and sought a declaration that the special conditions clause be void or be severed from the contract and alleged:
- that the special conditions clause was void for uncertainty and for being an unfair provision under the Australian Consumer Law (ACL); and
- the contract failed to provide a sufficient price increase warning as required by Schedule 1 of the QBCC Act.
Held
The Court held that:
- the special conditions clause was void;
- in purporting to allow the respondent to increase the contract price based on unstated objective criteria made the clause uncertain and therefore unenforceable;
- any attempts to amend the warning by a clause not on the first page as required by the QBCC Act cannot succeed; and
- the special condition was an unfair term under the ACL resulting in a significant power imbalance.
Further, it was also held that a “brief explanation of the effect of the provision” as required by the QBCC Act is a separate and additional requirement to the warning, and is insufficient to only list the relevant clauses and state they allow for contract price changes.
Read the full case here.
LPC Lawyers’ Article Series ‘The Power of Disclosure’ Series
Part 1 – ‘The Duty to Disclose’
The first instalment explores the concept of disclosure including the duty to disclose and what needs to be disclosed in litigious proceedings. Read more here.
Part 2 – ‘Privileged Documents’
Part two discusses what documents are not subject to disclosure, including those that are privileged and instances where privilege may be inadvertently waived. Read more here.
Part 3 – ‘Performing Disclosure’
The final instalment explains how and when to perform disclosure, effective record keeping processes, and potential consequences of failing to properly perform disclosure. Read more here.
LPC Lawyers’ Article Series ‘Navigating Quantum Calculation’ Series
Part 1 – ‘The Essential Toolkit For Construction Claims’
This three-part series explores several methods which can be applied to assess the quantum of damages, with the first instalment exploring the cost based methods of Total Cost, Modified Total Cost and Delta Estimate Analysis. Read more here.
Part 2 – ‘Nailing Cost-Based Methods’
The second instalment looks at how the methods explored last week work together to underpin the Delta Damages/Cost Variance Analysis method, and the first productivity-based method: the Earned Value Analysis. Read more here.
Part 3 – ‘Productivity-Based Methods’
The final instalment will explore the final productivity-based methods being the Measured Mile and Baseline Productivity Methods.
Stay tuned for this article which will be posted on 10 July 2023.
LPC Lawyers’ Promotions
LPC Lawyers are delighted to announce the promotion of Stephanie Purser and Quinn Hironaka to Associate.
This promotion reflects their hard work and the outstanding contribution they provide to both clients and to the Firm. Congratulations, Stephanie and Quinn, on your well-deserved promotion.
LPC Lawyers’ Continued Expansion
LPC Lawyers is looking to hire as we head into the second half of 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.
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].