New Release: Security of Payment Guide 7th Edition – Download your FREE copy here
Our Building & Construction Lawyers have extensive experience advising and representing contractors, subcontractors, developers and home owners to make and administer contracts effectively, utilise security of payment laws and resolve disputes and damages claims.
Our Sam Roberts is an Accredited Specialist in Commercial Litigation having acquired his accreditation in 2013 with a sub-specialty in Building & Construction Law.
We help clients to successfully complete building projects and avoid building related disputes by making and administering complying Construction Contracts and Residential Building Contracts and observing industry specific laws.
When building disputes arise, we provide prompt, direct and technically correct advice to ensure you can resolve the dispute swiftly and/or to position you for the best outcome in future. This typically involves the issue of Contract Notices, Payment Claims or Payment Schedules, and the enforcement statutory debts or Adjudication under the Building and Construction Industry Security of Payments Act 1999 (NSW).
Our Lawyers are highly experienced in dealing with both commercial and residential disputes large and small and have appeared in all relevant jurisdictions from the Home Building List of the NSW Civil & Administrative Tribunal to the Construction & Technology List of the Supreme Court of NSW.
Subcontractors often come to us at the eleventh hour for help when they haven’t been paid, but there are some common pitfalls that can put the benefit of the Security of Payments Act out of their reach. In this article I have summarised some of the most frequent problems encountered.
My Home Builder is “running late”. When can I terminate my residential building contract and get another builder to complete the work?
We’re seeing more and more builders going into liquidation leaving homeowners with half finished houses that good builders don’t want to touch because firstly, the previous builder’s building work could be a warranty liability and secondly because they still have their own full books to run.
In Australia, copyright law plays a critical role in protecting the intellectual property of builders.
Builders and developers in NSW should take note of the recent High Court decision in The Owners – Strata Plan No 84674 v Pafburn Pty Ltd.
The Building Commission NSW is increasing its enforcement activity, imposing penalties on licensed builders for alleged statutory warranty breaches—even in cases where defects are disputed in NCAT. Understanding how rectification orders, improper conduct findings, and penalties can impact your business is essential for NSW builders navigating compliance risks.
This article explores the various legal avenues available to Home Builders facing disputes with Homeowners.
If you’re a builder or subcontractor owed more than $200,000.00, it’s possible to utilise the Act to obtain a Court Judgment for the outstanding debt in less than 40 days.
In this article we consider how the Courts consider the adequacy of describing works or reasons for withholding payment in assessing the validity and reliability of Payment Claims and Payment Schedules.
Residential builders in New South Wales risk significant fines if they do not comply with their newly-created obligations in relation to the Building and Construction Industry Security of Payment Act 1999 (NSW).
The Building and Construction Industry Security of Payment Act 1999 (the Act) is an incredibly effective way for participants in the construction industry to maximise their chances of fair and prompt payment of invoices rendered.
The Building and Construction Industry Security of Payment Act 1999 (NSW) (“the Security of Payment Act”) (and interstate equivalent) is unlike any other law in the country. These laws can be the source of significant rights as well as severe adverse consequences for most businesses in the building industry.
If you build Class 2 buildings you need to be across this.
A Builder’s Liability Under the Design and Building Practitioners Act 2020.
The amendments bring about two important changes for contractors claiming progress payments.
In Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4 the High Court affirmed the decision of the NSW Court of Appeal that the availability of judicial review to quash an Adjudication Determination under the Building and Construction Industry Security of Payment Act 1999 (NSW) (“the Act”) was limited to cases of jurisdictional…
How to make it and not go broke!
Whilst case management by Judges and Magistrates may be preferable to case management by NCAT Members, unless the parties agree for the proceedings to be determined by a Court (and not a Tribunal) or no Defense to a claim is anticipated, then it is usually the case that proceedings for claims under $500,000.00 should be…
For a home owner, engaging a builder to carry our residential building work, whether it is for a new home, renovations and extensions or a smaller project, can be a very stressful time.
If you are a builder carrying out residential building work, there may be situations when you would like to suspend the building works. Commonly this occurs when a home owner fails or refuses to pay a Progress Claim.
If you enter into a contract with a home owner to undertake residential building work and the contract price exceeds $5,000.00, then the Home Building Act provides that any variation must be in writing and signed by both parties prior to the variation works commencing.
Insurance under the Home Building Compensation Fund is required to be obtained by a builder entering into a residential building contract of greater than $20,000 with a home owner prior to commencing any work under that contract.
What to do to avoid getting caught out!
How you could find yourself out of business before you even begin.
The Home Building Act 1989 (“the Act“) places obligations upon contractors who contract directly with home owners to undertake residential building work.
The Building and Construction Industry Security of Payment Act 1999 (NSW) is significant because it provides for the following consequences…
Your Initial Consultation is an important opportunity for you to ask questions, get on-the-spot answers and experience what it will be like to work with us if you need further assistance. Your Solicitor will help you to understand the laws and legal issues relevant to your situation, applicable legal processes, your prospects of success in relation to a dispute and the course of action you should take.
You may not always get the advice you want to hear, but you’ll always get the advice you need to hear.
You may attend your appointment by phone, videoconference or in person at our offices.
If you need further legal help following your Initial Consultation, you may engage us to advise and represent you generally in relation to your matter or request a second appointment and provide copies of any relevant documentation you would like us to review beforehand.
Pursuant to our Retainer:
Under this model, if a Tax Invoice is not paid within seven (7) days we may:
Money held in respect of a Retainer is Trust Money. Trust Money and Trust Accounts are regulated by the Legal Profession Uniform Law (NSW) and the Legal Profession Uniform General Rules 2015 (“the Legal Profession Uniform Laws”).
“Retainer” Money is term used by our firm to help clients more easily understand the nature and purpose for which we require payment of money to our Trust Account in most instances. That is, to serve as a retainer that ensures payment of our fees and disbursements for the ongoing provision of professional legal services.
The Retainer Amount is generally based on the estimated costs and disbursements of work to be undertaken in any calendar month. We may vary the Retainer Amount from time to time having regard to the estimated costs and disbursements of upcoming work.
In addition to the Retainer Amount, we may request that you pay other amounts to our Trust Account on account of costs and disbursements from time to time, for example, Barrister’s fees, Expert Witness fees, Mediation fees, Court filing fees etc.
The initial Retainer Amount is payable upon you entering into a Legal Services Agreement with us. If we increase the Retainer Amount or ask for other money to be paid to our Trust Account, you are required to pay the amount requested within seven (7) days.
We may suspend work in relation to your matter and/or terminate our Legal Services Agreement if:
A Trust Account is a bank account in which we hold Trust Money on your behalf. Most law firms use a Trust Account to manage the payment of legal costs, and to receive and hold Trust Money on behalf of clients.
Our Trust Account is an account with ANZ Bank. We must deposit Trust Money we receive to this account and give you a receipt for your deposit as soon as practicable. The amount that you have paid into our Trust Account is then recorded against your name and your file number. We are required to give you a Trust Account Statement at certain intervals and on your request.
The Legal Profession Uniform Laws governs when we can withdraw your money from our Trust Account. Generally, we can only withdraw the money:
You will be notified of any withdrawals that we make from your Trust Account and they must be clearly recorded against your file. Our Trust Account (and all general trust accounts) are not interest-bearing accounts and large sums should therefore not be left deposited for extended periods.
Your money remains on deposit in our Trust Account. The relevant Rules prevent us from holding money in our Trust Account over an extended period. Therefore, we will refund any amount held in excess of the Retainer Amount to you on your request and the balance at the end of your matter.
The NSW Law Society’s Trust Account Department has the responsibility for examining records maintained by law practices to ensure they properly account for the Trust Money received and which is held on behalf of another person. This firm has been randomly audited on a number of occasions by the Trust Account Department of the Law Society and has an exemplary history of Trust Account compliance.
Each year, an independent auditor is appointed to inspect our Trust accounting records. We must present our Trust ledgers for the applicable period and provide documentary evidence of any transactions that the auditor selects for investigation.
Regardless of the amount of time funds have been held in our Trust Account, and provided that reasonable efforts have been made to locate the owner of Trust Money, unclaimed Trust Money may be surrendered to Revenue NSW in accordance with the Legal Profession Uniform Law Application Act 2014. Should the owner then require the return of the funds, they will need to lodge a request directly with Revenue NSW.
