Projects & Construction Monthly – September Edition

Welcome to the September edition of Projects & Construction Monthly.

This edition addresses:

1. Bridge to Brisbane;
2. Recent major projects;
3. Case Summary – Demex Pty Ltd v Marine Civil Contractors Pty Ltd & Anor [2022] QSC 141;
4. LPC Lawyers’ current ‘Back to Basics’ series; and
5. LPC Lawyers’ upcoming article series.

Bridge to Brisbane

LPC Lawyers was a proud participant in the 2022 Bridge to Brisbane held this past weekend. This event raises much needed funds and awareness for many different charities, and we were grateful for the opportunity to be involved.

A running and a walking team took to the streets (and the Gateway Bridge) to complete the 10 kilometre course.

Great effort from all involved!

Recent Major Projects

Cross River Rail

Construction is now well under way on Brisbane’s new 10.2 kilometre rail line which will stretch from Dutton Park to Bowen Hills, with demolition works or major construction works having already commenced at the new station locations.

Current progress of the major works includes:

1. Boggo Road Station–the northern cavern back of house FRP works have been completed, while 45% of in situ concrete has been laid and 54% of reinforcement installed for the station build.
2. Woolloongabba Station –works on the northern cavern’s back of house structure continued, while in the station box, nine of eleven back of house slabs have been completed.
3. Albert Street Station – the eastern internal wall steel fixing has commenced, while service shaft excavation progressed in the cavern.
4. Roma Street Station –cavern lining works have continued, with the invert slab 96% and kickers 91% complete. In the station box, permanent structure works continued, and at the services building, B2 interior wall placement in the north is ongoing.
5. Exhibition/RNA Station –the Victoria Park Feeder Station switchroom building slab is 60% complete, while drainage stage 2 works will continue after the Ekka.

Project completion is expected in 2024.

 M1 Upgrade – Exit 49 (Pimpama) Interchange

Construction works have now commenced (August 2022) on a major upgrade of the Exit 49 (Pimpama) Interchange.

The upgrade aims to deliver significant improvements in safety and efficiency at the interchange on Queensland’s M1 Pacific Motorway by:

1. Constructing a new bridge across the M1 with additional lanes, increasing capacity;
2. Removing existing roundabouts and installing signalised intersections for improved traffic flow;
3. Relocating the existing on and off ramps to reduce queuing;
4. Diverting some traffic away from the interchange to reduce congestion; and
5. Adding pedestrian and cyclist network paths for additional user safety.

The contract was awarded to Seymour Whyte and completion is expected in 2024.

Bridgewater Bridge (TAS) – Early Works

LPC Lawyer’s previous article series ‘Bridging the Gap’ discussed the planned commencement of the $786 million project which will see the replacement of the Bridgewater Bridge in Hobart, Tasmania.

Early works have now commenced with the preferred contractor, McConnell Dowell, having already positioned the first of its marine plant near the existing bridge. The project aims to remove the notorious bottleneck at the Granton roundabout, providing free-flowing access to the Brooker Highway, Lyell Highway, and Midland Highway.

Major construction is expected to commence end of 2022 with completion expected in 2024.

Case Summary – Demex Pty Ltd v Marine Civil Contractors Pty Ltd & Anor [2022] QSC 141

This case highlights the late delivery of an adjudication determination is unlikely to render it invalid, though ultimately turned on the manner in which parties should elect to dispute unfavorable adjudication decisions.

Facts

Demex engaged MCC to performance of demolition work on the Old Batemans Bay Bridge in New South Wales.

This case considered an application Demex in the Supreme Court of Queensland for an interlocutory injunction restraining MCC from enforcing an adjudication determination. Demex argued the determination was void for jurisdictional error on the following grounds:

1. Payment claim invalid as it included a claim for work not performed;
2. Adjudicator gave insufficient reasons, or alternatively, denied the parties natural justice; and
3. Adjudication determination not made within the statutory time period.

Held

The court held in MCC’s favour by refusing the interlocutory relief sought by Demex. The court relied on:

1. the weakness of Demex’s case;
2. the court’s acceptance that adjudicated sum should be accepted as vital cashflow for MCC;
3. Demex’s offer to pay the sum into court did not address cash flow issues, interest, or adjudicator fees; and
4. both parties had an arguable case regarding the undertaking for the amount of damages by MCC and the repayment ability of Demex.

The court also made comments to the effect that despite a factual dispute existing regarding the performance of work in a payment claim, which is subsequently subject to an adjudication decision,  will have no impact on the enforceability of the adjudication decision. This comment relied on the Security of Payment Legislation being intended to deal with such issues on an interim basis, before being finally settled by the court in the event of any further dispute.

The application was dismissed.

You can read the full case here.

LPC Lawyers’ ‘Back to Basics’ Series

LPC Lawyers has recently completed the publication of a four-part series on construction contracts which explored all things relative to reviewing a contract and ensuring adequate allocation of risk, with a particular focus on the ‘three pillars’ of risk in construction contracts – quality, time, and cost.

Part 1 – ‘The Construction Contract Review’

The first part of the series explores the importance of contract review and provides a comprehensive overview of how to consider quality, time, and cost in a review of your contract. Read more here.

Part 2 – ‘The Construction Contract Review – Quality’

Part two explores some of the key provisions in respect of ‘quality’ for a contractor to consider when undertaking a contract review, including scope, warranties, and defects liability. Read more here.

Part 3 – ‘The Construction Contract Review – Time’

Part three explores some of the key contractual considerations for contractors in respect of time, including practical completion and extensions of time. Read more here.

Part 4 – ‘The Construction Contract Review – Cost’

The final publication of the series explores the third pillar of risk – cost. This article considers lump sum versus schedule of rates pricing models, set off clauses, liquidated damages, liability, and rise and fall clauses. Read more here.

LPC Lawyers’ Upcoming Article Series

LPC Lawyers’ upcoming series will explore a key contractual component in the construction industry – liquidated damages.

Whilst a tool for risk mitigation (by both parties), the effective operation of this concept requires careful consideration during the contract drafting phase to ensure it is operative and effective. This series will consider the concept of liquidated damages, the differences between liquidated damages and general damages, the advantages and drafting considerations of liquidated damages clauses, and how to avoid liquidated damages being considered void or unenforceable.

Stay tuned, as Part 1 in this series will be posted on 5 September 2022.