Archive: October 2014

1
High Court Finds No Duty of Care From Builder to Owners Corporation
2
Enforcing Notice Provisions in Construction Contracts in the United States
3
Overhaul of the Building and Construction Industry Payments Act 2004 (Qld): How the Changes Will Impact Queensland, Australia
4
Preliminary court injunction or adjudication−new legal tools to avoid excessive duration of con-struction court proceedings in Germany?

High Court Finds No Duty of Care From Builder to Owners Corporation

by Sandra Steele, Belinda Montgomery, Marcel Marquardt, Matthew G. Sier, K&L Gates, Sydney

The High Court has held that a builder of a serviced apartment complex does not owe a duty of care in negligence for financial loss arising from defects in common property to an owner’s corporation (Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 [2014] HCA 36).

The serviced apartments were built by the builder under a design and construction contract with a developer. The owner’s corporation was a subsequent owner of the land.

This is an important decision for the building and construction industry as it has defined the circumstances in which a commercial builder will be found liable for defective works in negligence. 

To read the full alert, click here

Enforcing Notice Provisions in Construction Contracts in the United States

By Kimberly L. Karr, K&L Gates, Pittsburgh 

Notice provisions are a key part of construction contracts.  These provisions typically require a contractor to notify the owner of the project (or an owner-designated representative) when the contractor believes that it is entitled to extra costs or additional time for the project.  Notice provisions generally require that notice be given within a certain time period and that the contractor back its claim with supporting information. 

Notice provisions are often the source of disputes between owners and contractors.  This post provides an overview of common issues that owners and contractors in the United States should consider when negotiating notice provisions and addressing notice of potential claims during a project. 

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Overhaul of the Building and Construction Industry Payments Act 2004 (Qld): How the Changes Will Impact Queensland, Australia

Sandra Steele and Marcel Marquardt, K&L Gates, Sydney

The amendments to the Building and Construction Industry Payments Act 2004 (Qld) (BCIP Act) were passed on 11 September 2014 and received assent on 26 September 2014. The changes contained in the Building and Construction Industry Payments Amendment Act 2014 (Qld) (BCIPA Act) are extensive and will impact most participants in the building and construction industry in Queensland, Australia.

The commencement date is expected in the coming weeks. 
 
To read the full alert, click here.
 

Preliminary court injunction or adjudication−new legal tools to avoid excessive duration of con-struction court proceedings in Germany?

By Kristina Fischer, Eva Hugo and Christoph Mank, K&L Gates, Berlin

In general, German court proceedings relating to construction and engineering matters can take between three to six years and sometimes up to ten years, until a final, binding judgment is obtained. The reasons for such excessive duration in construction court proceedings are manifold: Courts may be overloaded by the number of disputes brought before them, judges may not have the necessary technical or judicial experience or expertise and the clarification of the facts of the case may be time-consuming and not be possible without one or more experts´ opinions. In addition, the losing party generally exhausts all court instances before a case is finally settled. The excessive duration of construction court proceedings is expensive; and often, it even poses a threat to one or both parties´ economic existence.

The call for a reform of the current procedural law for construction disputes is getting louder: Working groups, organizations and experts demand that a new−accelerated−procedure for the resolution of construction disputes must urgently be introduced into the German legal system.

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