Construction Law: Avoiding Risk and Conflicts
The current construction sector is brimming with potential risk and real conflicts. Gain the latest strategies you need to navigate the construction dispute maze and develop the skills to provide considered contractual responses when extreme events occur. In addition, explore limitation of liability clauses, expert determination and the prevention principle. There’s a lot to keep up with. Don’t be caught out. Prepare ahead. WEB233Q02Z
Description
Attend and earn 4 units in Legal Knowledge
This program is based on QLD legislation
Chair: Brent Reading, Barrister, Northbank Chambers; Leading Construction & Infrastructure Counsel, Doyle’s Guide, 2022, 2021, 2020
9.00am to 9.05am Opening Comments by the Chair
9.05am to 9.50am Limitation of Liability Clauses
- Limitation of liability in the context of the Australian Consumer Law and proportionate liability regimes
- Enforceability of and construction of exclusion and limitation of liability clauses
- Recent case law developments and drafting tips
Presented by Troy Lewis, Partner, Holding Redlich; Recommended Construction & Infrastructure Litigation Lawyer, Doyle's Guide 2022
9.50am to 10.35am Contract Responses to Extreme Events: When Reality Bites
Critical events of the past 3 years and their consequent labour, supply chain and contractor insolvency impacts provide a wakeup call to the fact that ever hardening “risk transfer” in construction contracts is not an effective risk mitigation strategy. The need for client intervention to manage risks where contract terms have proved incapable has shown that reliance on “market precedent” to determine risk allocation can expose a client to greater risk, not less. This provides lessons for clients, contract drafters and advisers on why construction contracts should be focused more on providing a basis for (shared) project success and less on the consequences of failure.
Gain examples of how to best apply these lessons to better manage project risk on projects and applying more sustainable risk allocation approaches, applying the Abrahamson Principle.
Presented by Ted Williams, Commercial Director, Cross River Rail Delivery Authority
10.35am to 11.20am Security of Payment Adjudication Update
- Judicial intervention in Adjudication decisions: new case roundup and practical implications
- Legislation update, including lessons from interstate
- Tips and traps in Adjudication Applications
Presented by James Morgan, Special Counsel, Rose Litigation Lawyers; Accredited Specialist in Commercial Litigation
11.20am to 11.35am Morning Tea
11.35am to 12.20pm Expert determination of Construction Disputes
- Differences from arbitration and litigation
- The expert’s role: inquisitorial or adjudicative?
- The expert’s liability
- Drafting expert determination clauses
- Evidence and privilege considerations
Presented by Luke Preston, Partner, Carter Newell Lawyers; Best Lawyers 2022, Alternative Dispute resolution and litigation
12.20pm to 1.05pm The ‘Prevention Principle’: Principles and Practice
- Gain perspective on the authorities considering the ‘prevention principle’ and where a principal may be prevented from claiming liquidated damages where they have been responsible for delay.
- Analyze the authorities and gain a practical perspective on how contracts can, or may, be drafted to avoid, or make available, prevention arguments
Presented by James Hastie, Barrister, Chambers 33 and Alexander Tuhtan, Partner, Shand Taylor Lawyers; Recommended Construction & Infrastructure Litigation Lawyer, Doyle’s Guide 2020
1.05pm to 1.15pm Final Q&A and Closing Comments by the Chair
Presenters
Brett Reading
Prior to joining the bar, Brent practiced as a commercial litigator with Minter Ellison (from 2011-2013) and with Allens (from 2013-2015). Brent was called to the Bar in 2015. Brent has a broad commercial practice with a focus on construction, contract, tort, insolvency, trade practices, discrimination, intellectual property and wills and estates. Brent’s speciality is arbitrations. He has appeared in Australia and internationally (most recently in Singapore). In 2017, Brent was recognized by Doyle's Guide as an emerging construction and infrastructure junior counsel. In 2018, 2020, 2021 and 2022, Brent was recognized by Doyle’s Guide as one of Queensland’s leading construction and infrastructure junior counsel. Brent is a co-author of the Intellectual Property and Probate Chapters (which are published by LexisNexis Australia). He also sits on the alternative dispute resolution committee of the Queensland Bar Association. Brent also lectures in forensic evidence at Griffith University. He has done so since 2015.
Ted Williams
Ted consults in the construction, infrastructure and mining and resource industries. He has practiced as a lawyer in these areas for over 20 years, having been a partner in leading Australian and European law firms. Ted advises across the range of commercial and legal issues in major construction, infrastructure and mining projects. Ted has had lead roles in large number of Australian and international projects in the road, rail, aviation, pharmaceutical, health, education, manufacturing, telecommunications, water, waste, mining, gas, energy, marine, defence and sport sectors. Ted is pragmatic and hands on. He thinks and acts strategically and maintains close relationships within his team and all stakeholders. Ted's significant cross-border and general counsel experience has provided 'front-line' exposure to issues confronting parties undertaking international infrastructure and resources projects. Such experience includes international arbitration, foreign anti-bribery and corruption control and dealing with foreign officials, regulators, law enforcement and judicial systems.
Troy Lewis
Troy is the National Head of the Construction, Infrastructure and Projects team with over 20 years industry experience. Troy specialises in project delivery, risk mitigation and avoidance and construction disputes in all states and territories of Australia. Troy is a recognised industry leader in relation to the security of payment legislation Australia wide and his experience acting on behalf of both Claimants and Respondents as well as training industry participants and adjudicators ensures that he and the entire Holding Redlich construction, infrastructure and projects team are always across the tips, tricks and traps that exist in the legislation and are always one step ahead. Troy’s extensive industry experience ensures that the team’s advice will always be focused on the number one issue – the delivery and completion of a successful project whilst, at the same time ensuring your interests are fully protected. This means that, in the unfortunate event of a dispute you can feel safe that you are in the best position to achieve the right outcome. Troy’s expertise in project delivery issues and disputes involving some of the largest and most complicated of projects ensures that when advising on the drafting of and risk allocation in construction contracts as well as the appropriate manner in which to structure and deliver projects you are receiving practical commercial advice that has considered every possible pitfall (commercially and legally) and adopted best industry practice in relation to the management of same. In the 2012, 2013, 2014, 2015, 2016, 2017, 2018, 2019, 2020 and2021 editions of Doyles’ Guide to the Australian Legal Profession, Troy is named as one of the Leading Construction & Infrastructure Lawyers in Queensland. Troy has also been named in The Best Lawyers in Australia guide in 2014, 2015, 2016, 2017, 2018, 2019, 2020, 2021 and 2022 in the practice area of Construction/Infrastructure
James Morgan
James Morgan was admitted as a solicitor in March 2004 and has practised in Commercial Litigation and dispute resolution since December 2004. James has extensive knowledge of construction law, civil procedure in state Courts and Tribunals, insolvency law, and administrative law. Rose Litigation Lawyers is an Associate Member of the Civil Contractor’s Federation of Queensland. James acts for the Queensland Building and Construction Commission, builders and building owners, trade suppliers, subcontractors, local governments, directors, franchisees, lenders, borrowers, private schools, liquidators, and bankruptcy trustees. James has been an Accredited Specialist in Commercial Litigation since 21 November 2016.
Luke Preston
Luke Preston is a Partner in Carter Newell's Construction & Engineering team. Luke has 30 years' experience in commercial litigation, construction law and insolvency in Queensland, and regularly acts in payment claims and adjudication applications under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) and parallel legislation interstate. Luke’s practice includes representing leading Australian construction contractors, miners, heavy engineering contractors and industry consultants in both pursuing and resisting security of payment claims. He regularly assists national building product manufacturers with compliance advice in respect of duties arising under part 6AA of the Queensland Building and Construction Commission Act 1991, and in defective or non-conforming product recall obligations and strategy. Luke holds a Certificate in Adjudication, is a past member of the Queensland Law Society's Practice and Procedure Committee and has been recognized in the 2021 edition of Best Lawyers Australia in the areas of Alternative Dispute Resolution and Litigation.
James Hastie
James Hastie has a broad commercial practice and appears regularly, both led and unled, in State and Federal Courts. He has a particular interest in corporations, insolvency, property and building and construction disputes. James was admitted as solicitor in 2012 and called to the Bar in 2016. James is a graduate of the University of Queensland and holds a Bachelor of Laws with Honours. Prior to coming to the Bar, he practiced as a solicitor for four years.
Alexander Tuhtan
Alex Tuhtan is a partner at Shand Taylor and leads its building and construction team. Alex specializes in preparing all types of construction contracts, preparing adjudication applications and responses, advising on licensing issues and all types of construction disputes. Alex has over 7 years’ experience in all courts and tribunals and regularly acts for developers, builders, subcontractors, construction consultants and other construction professionals. In 2020, Alex was listed as a recommended back-end construction lawyer on Doyle’s Guide and sits on the committee of the Commercial Law Association of Australia (Queensland Chapter). Alex frequently hosts presentations and workshops regarding construction law and presents externally for organizations such as the Commercial Law Association.