September 6, 2024
Welcome to the September edition of Projects & Construction Monthly.
This edition addresses:
- Recent Construction News;
- Case Summary: Lendlease Building Pty Ltd v BCS Airport Systems Pty Ltd & Ors [2024] QSC 164;
- LPC Lawyers’ recently completed ‘In Demand’series;
- LPC Lawyers’ ‘Hand Over Your Documents’series; and
- Opportunities to join the LPC Lawyers’ team.
Recent Construction News
The Star Brisbane
After 8 years of construction, the $3.6 billion Brisbane Star casino precinct is opening.
The staged opening began on Thursday, 29 August 2024, with the opening of the Star Grand, one of the three distinct hotels that the precinct will house.
The precinct is the joint venture of the Star Entertainment Group and Hong Kong based partners Chow Tai Fook Enterprises and Far East Consortium
The Star Brisbane will also feature the Sky Deck – a 250-metre stretch of restaurants and bars – and the Leisure Deck which will run between four towers and offer 12,000 metres of open-air space.
The Sky Deck’s viewing platform and one of its bars Cicada Blu is currently open, and two of its restaurants are set to open before the end of the year.
The Star Gold Coast
It’s been a big month for the Star Entertainment Group, with the Star Gold Coast also reaching a significant milestone – the topping out of its second 65-storey hotel and apartment tower.
The $400 million tower is set to open in early 2025 and will add 639 accommodation options to the Gold Coast, including a variety of amenities and a retail promenade.
Waterfront Brisbane
Significant progress has been made for the $2.5 billion Waterfront Brisbane project, which is scheduled for completion in 2028.
Since 1 January 2024, the project has undertaken 30,000m3 of ground improvement works, used 5,500 tonnes of cement in ground improvement and exported 12,000m3 of excavated material from site.
Large equipment and a tower crane are expected to arrive at the site in the coming months as the Riverwalk and ground improvement works continue to progress.
Case Summary: Lendlease Building Pty Ltd v BCS Airport Systems Pty Ltd & Ors [2024] QSC 164
Complications can arise when construction work takes place over state borders. This case found that the Building Industry Fairness (Security of Payment) Act 2017 (“BIF ACT”) cannot apply to a construction contract where the “result” of that contract is wholly outside of Queensland and that adjudicators under the BIF Act do not exercise judicial power.
Background
Lendlease sub-contracted with BCS Airport Systems in relation to construction work at Gold Coast Airport. As it is an airport, it is considered a “Commonwealth Place” to which Commonwealth laws apply. The Commonwealth Places (Application of Laws) Act 1970 (Cth) (“CPAL Act”) has the effect of applying state laws to Commonwealth places. As the airport straddles the Queensland and New South Wales border, different parts of the airport are subject to different state laws. It also means that some of the construction work under the contract concerned structures which were wholly or partly in New South Wales.
A payment claim for costs arising out of delays was issued by BCS under the contract and pursuant to the BIF Act and subsequently proceeded to adjudication. The adjudication decision determined that BCS’s claim was valid.
Lendlease sought a declaration that the adjudication decision was void on three alternative grounds, being that the adjudicator:
- lacked jurisdiction because the claim related to work which occurred in New South Wales;
- had failed to consider Lendlease’s submissions and thereby failed to provide natural justice; and
- had impermissibly exercised judicial power.
Decision
Lendlease’s arguments were ultimately rejected, and the validity of the adjudication decision was upheld.
Firstly, his Honour said whether or not construction work can be said to be carried out inside or outside of Queensland is by reference to the object or objects being constructed. That is, if the work is to build a structure within Queensland, then all preparatory work related to that structure will fall under the BIF Act, even if such preparatory work takes place outside of Queensland. The consequence of this conclusion is that the BIF Act cannot apply to a construction contract where the “result” of that contract is wholly outside of Queensland.
Secondly, his Honour concluded that the process which the adjudicator appeared to have followed supported an inference that the adjudicator considered all submissions made by both Lendlease and BCS.
Lendlease’s final argument was based on whether an adjudicator’s powers could be properly characterised as judicial, then their exercise would be impermissible in relation to constructions at airport as a result of s 4(5)(b) CPAL Act. His Honour determined that adjudicators under the BIF Act do not exercise judicial power, drawing upon the distinction between the ability to make a binding determination on narrow issues determined by statute, and the ability to render a determination as final and authoritative.
Read the full judgement here.
LPC Lawyers’ recently completed ‘In Demand’ series
Chasing funds and being chased for funds can be a tricky process. This three-part series looks at some challenges that may present in this tough economic climate and options that may be open to you in dealing with demands for payment.
Part 1 – In Demand? Hopefully Not
Part 1 looks at how often major construction companies are falling into liquidation and what options may be available to them when this happens. Read the full article here.
Part 2 – In Demand? Finding a Way Forward
Part 2 explores other options that may be open to you in dealing with a creditor’s statutory demand or indeed issuing a statutory demand against a debtor. Read the full article here.
Part 3 – In Demand? Options!
Part 3 takes a deeper look at various grounds to set aside a demand. Read the full article here.
LPC Lawyers’ in progress ‘Hand Over Your Documents’ series
For parties involved in Queensland civil litigation, one of the most important stages is disclosure (also referred to as ‘discovery’). It is an interlocutory procedure where, broadly speaking, documents that are relevant to the issues in dispute in the proceeding are exchanged between parties. This three-part series explains the ins and outs of disclosure.
Part 1 – An Overview of Disclosure
Part 1 provides an overview of the duty of disclosure, when the duty arises, documents that must be disclosed, and consequences for not complying with disclosure procedures. Read the full article here.
Part 2 – Privileged Documents
Part 2 explores documents to which the duty to disclose does not apply. Read the full article here.
Stay tuned for the final instalment of this article series which will be available on 9 September 2024.
LPC Lawyers’ Continued Expansion
LPC Lawyers is looking to hire 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 opportunities visit our website here or to apply, please email your resume and cover letter to Manaia at [email protected].