Stephen Kuhn

The High Court of Australia has published two significant decisions in arbitration practice. In Tesseract International Pty Ltd v Pascale Construction Pty Ltd [2024] HCA 24, the Court considered the application of the South Australian proportionate liability statutory regime to arbitral proceedings. The regime enables a respondent wrongdoer to join an alleged concurrent wrongdoer to a proceeding. The question was whether the regime applies to an arbitration in circumstances where the capacity to join a concurrent wrongdoer cannot be transposed to an arbitration. The Court held by a 5:2 majority that proportionate liability statutes were capable of applying in arbitration. Jonathon Redwood SC, Kate Lindeman and Boxun Yin appeared for ACICA. In CBI Constructors Pty Ltd v Chevron Australia Pty Ltd [2024] HCA 28, the Court considered the extent of a supervisory court’s role in reviewing a tribunal’s finding that it was not functus officio, in the context of the ground for setting aside an arbitral award. There, a tribunal had bifurcated the arbitration between liability and quantum. It issued an award on liability issues. When the claimants sought to agitate additional liability issues, the respondent objected on the basis that the claimants were precluded by preclusive estoppel from agitating those issues. The majority (Gageler CJ, Gordon, Edelman, Steward and Gleeson JJ) upheld the principle that an arbitrator was functus officio in relation to the issues to which an interim award relates. John Sheahan KC and Boxun Yin appeared for CBI Constructors. Link to Tesseract: https://lnkd.in/gUHwUsdp Link to CBI Constructors: https://lnkd.in/giFi5HK3

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NSW Court of Appeal confirms personal liability under the DBP Act - insights from Kazzi v KR Properties Global Pty Ltd The recent decision by the NSW Court of Appeal in Kazzi v KR Properties Global Pty Ltd has provided further confirmation on the personal liability of individuals under the duty of care provisions in s 37 of the Design and Building Practitioners Act 2020 (NSW). This case reaffirms that individuals, including directors and project supervisors, can be held personally liable for defective works. The ruling underscores the broad scope of the statutory duty of care, highlighting the significant legal and financial risks for those involved in the construction industry. Read further as Anish Wilson and Robert Webb explain. To view the article, please click the link in the comments section below. #buildingandconstruction #dutyofcare #defectiveworks #personalliability #auslaw

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Yesterday, the Court of Appeal delivered judgment in Inndeavor Apartment Wolli Creek Pty Ltd v Maroun Pty Ltd [2024] NSWCA 237. The appeal gave rise to several questions, including whether the appellants’ obligation to pay rental arrears under residential leases was released by an accord (constituted or evidenced by a document styled as a “Handover Agreement”) and whether the accord was satisfied. The dispute arose out of temporary rent reduction arrangements during the COVID-19 pandemic. The Court (Stern JA, Ward P and McHugh JA agreeing) answered those questions negatively and dismissed the appeal. The judgment serves as an example to contract lawyers of the importance of: - correctly applying accord and satisfaction principles, which depends on properly construing the contractual obligations in question; - pleading with precision at trial the purported accord and satisfaction; and - pleading (and proving) that a release was given by all joint creditors, not just one. Andrew Byrne and Ryan Harvey acted for the successful respondents. A copy of the decision is available here: https://lnkd.in/gkwAs_A7

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The High Court of Australia confirms that proportionate liability can apply in Arbitration. Read more about "The High Court of Australia Confirms That Proportionate Liability Can Apply In Arbitration" with David Collins here: https://lnkd.in/gWgnn6aS #Buildingandconstruction #arbitration #CompetitionandConsumer

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This has practical application with regards to an insolvent company undertaking a s588GA Safe Harbour Turnaround or Restructuring, where there is protection for Directors from Insolvent Trading Personal Liability (2017)… …and s588FDB creditor-defeating disposition (2020) which is a voidable action (ASIC order) available to the liquidator or ASIC. No order can be made where the disposition was: 1. For market value and/or 2. part of the Safe Harbour restructuring (“better outcome” test). This needs to be executed with precision and only the most experienced reputable and qualified advisors can be trusted. It’s a highly specialist area and directors should always request references from an advisor’s former clients. #phoenixing #turnaround #preinsolvency #restructuring #safeharbour #insolvent #governance

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Dispute Clause Carve Outs & Enforcement of a Debt Dispute clauses in Australian Standard construction contracts (AS4903, AS4300, AS4000, AS2124, etc) are, ironically, often the subject of dispute. Particularly since 2013, when the Victorian Supreme Court held an unamended provision of a standard dispute clause was void for uncertainty. Also commonly disputed is whether a standard dispute clause constitutes a binding arbitration agreement and whether matters before a Court should be stayed as a result. Proposed amendments to AS4000 (for release in late 2024 or early 2025) introduce new contract interpretation, confidentiality, insolvency, PPSR and dispute resolution clauses. The new dispute clauses introduce options for mediation, expert determination and a dispute avoidance board by election by the parties. The conference or negotiation and arbitration options remain. Understanding the nature and effect of the carve outs in any dispute clause can assist in the relevant circumstances to sidestep otherwise binding mechanisms in the dispute clause. Below we consider the carve out in the proposed amendments to AS4000. The proposed new carve out adopts substantially the same wording as the existing carve out, as a result, the interpretation of the carve out is unlikely to change. The current carve out has been the subject of several judicial decisions in Victoria and WA, and more recently with the WA Court of Appeal decision in Tianqi. The principle applied by those decisions is that the carve out concerns enforcement of amounts due under the contract which are not disputed, as opposed to enforcement of debt claim where a reasonable basis for dispute is capable of being raised in defence. The WA Court of Appeal in Tianqi held that the carve out (in AS4902) applies only to proceedings capable of summary determination, where there is no objectively triable issue capable of being raised for defending a summary judgment. For example, where a contractor submits a progress claim and no payment certificate is issued in response and the subject contract provides that the claim amount constitutes the certified amount in the absence of a response (and despite that a contractual dispute processs may have been triggered), Court proceedings can be commenced by the contractor to enforce the debt relying on the carve out and otherwise ignore the dispute process, binding arbitration agreement or not.

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Don’t Default on Giving Notice 🚨 A recent Supreme Court case clarified the importance of strictly adhering to notice provisions in agreements. In Allsopp v Elly Property Pty Ltd & Ors [2024], the Court highlighted how failure to comply with notice requirements could affect enforceability. In this case, notices sent on behalf of a lender were disputed due to non-compliance with the loan deed’s terms, even though one notice was ultimately upheld. To read the full article by Erin Prout, click on the link below: https://lnkd.in/dq9wFkXv #LegalAdvice #ContractLaw #DisputeResolution #SupremeCourt #BusinessLaw #LegalCompliance

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See our latest Casewatch: “NSW Supreme Court Lays Out Principles of Defect Compensation” This case demonstrates the basics of the courts approach to compensation for defects and is useful as a reminder to contractors and builders to remain aware of trial awards, as well as the potential expenses. Check out our latest Casewatch on the matter of 𝘛𝘩𝘦 𝘖𝘸𝘯𝘦𝘳𝘴 𝘚𝘵𝘳𝘢𝘵𝘢 𝘗𝘭𝘢𝘯 98726 𝘷 𝘌𝘭𝘪𝘵𝘦 𝘙𝘦𝘢𝘭𝘵𝘺 𝘋𝘦𝘷𝘦𝘭𝘰𝘱𝘮𝘦𝘯𝘵 𝘗𝘵𝘺 𝘓𝘵𝘥 (𝘕𝘰 3) [2024] 𝘕𝘚𝘞𝘚𝘊 673 𝑁𝑆𝑊𝐶𝐴 85’ at the following link: https://lnkd.in/g73erkn4 #doylesconstructionlawyers #doyles #constructionlawyers #constructioncontractlaw #construction #contractors #Construction #Casewatch #Law #casewatch #lawyers #australianconstruction #constructionmatters #legal #constructionlaw #constructioncase #constructioncontracts #constructionlawyer #contracts #contract #constructionlaw #australiaconstructionlaw #legaladvice #constructionproject

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Employer's Negligence Leads to Fatal Fall, Court Imposes $100,000 Fine 🔧 A recent case in the New South Wales District Court has brought to light the consequences of failing to adhere to safety regulations in the workplace. The case involved a sole trader operating as a licensed builder, who was found guilty of breaching the Work Health and Safety Act 2011, following a fatal incident involving scaffolding at a residential property in Sydney. 🏗️ The incident occurred when workers engaged in dismantling a scaffold at a Point Piper property. During this task, one worker fell 5.75 metres after a scaffold brace gave way, tragically resulting in his death days later. The court highlighted several critical failures by the employer, including the use of unlicensed workers for high-risk tasks, inadequate supervision, and the absence of a proper safety system for scaffolding work over four metres in height. ⚖️ The court found that the employer's ignorance of the risks was a major contributing factor in the worker’s death, stating that the builder was aware of the potential danger but did not take appropriate action to mitigate it. Despite expressing remorse and implementing safety changes post-incident, the builder was fined $100,000, with the judge stressing the importance of general deterrence in such cases. 🚧 This ruling serves as a sobering reminder to employers in high-risk industries to prioritise safety, engage licensed professionals for hazardous tasks, and comply fully with workplace safety laws to prevent future tragedies. #WorkplaceSafety #ConstructionIndustry #WHS #SafetyCompliance #NSWCourt #EmployeeProtection #ScaffoldingSafety

Professional liability or negligence claims remain a significant source of frustration, irritation, and burden for lawyers in New Zealand. http://spr.ly/6045oWjI5 Damian Schade discusses this issue with the editorial team of the New Zealand Law Society Te Kāhui Ture o Aotearoa. Learn more about the steps you can take to reduce the likelihood of liability claims affecting you or your firm: http://spr.ly/6045oWjI5 #RiskManagement #Law

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Lexon Risk Alert 24 September 2024: Conveyancing claims update, updates to the Off the Plan and Developer packs in the Conveyancing Protocol following the decision of Royal Pines Projects Pty Ltd v Brightman [2024] QCA 147, plus Lexon is also working on updated risk tools to help manage the duties associated with the Property Law Act 2023 (Qld) changes scheduled to commence on 1 August 2025; Cyber trends and latest AI issues including recent Court decision on risk issues for practitioners using AI; Updates to the Commercial Transactions Risk Procedure Pack including streamlining letters making the tools even more flexible and easier to use; Updates to Succession packs and Family Law – Checklist – Superannuation Agreements pack; Discussion on risks if asked to witness a Third Party Certificate.   If your practice is insured with Lexon and not currently receiving these alerts, email kathryn.stafford@lexoninsurance.com.au to update your subscription.   #LawPractice #RiskManagement #CommercialTransactions #Conveyancing #SellerDisclosure #Offtheplan #Cyber #AI #Succession #FamilyLawSuperannuation

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The Supreme Court handed down its decision in Tongi v Insurance Australia Limited t/as NRMA Insurance [2024] NSWSC 406 on 19 April 2024. Read more in this case note by Senior Associate Qiming Zhou below. #AusLaw #SupremeCourt #NSW #InsuranceLaw #McCabes #LegalInsights

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Our conflict resolution and litigation services span a wide range of areas, including debt recovery, leasing and contract disputes, personal injury claims, and commercial matters. ⚫ Debt Recovery ⚫ Lease Disputes ⚫ Recovery Of Possession ⚫ Contract Disputes         ⚫ Civil Actions ⚫ Appearing In Court ⚫ Personal Injury Claims and Compensation 🌐 www.lblawgroup.com.au #lblawgroup #livebetter #litigationlawyer

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  💰 Update // The Evolving Landscape of Legal Costing Reform As a firm that operates exclusively on a value-based pricing model, Law Squared's Disputes + Litigation lawyers are pleased to see further accommodations for innovative pricing models included in the coming reforms to the Scale of Costs Victoria. ⚖ The Supreme Court of Victoria Report on Litigious Costs was released in back in August 2022 and contained draft proposals to repeal the existing Scale of Costs and establish a time-based costing regime, similar to that used in New South Wales. Later that year, we joined with Aptum, Hive Legal, Peer Legal and Moores to provide a joint submission to the Supreme Court of Victoria’s Review of Litigious Costs. 💬 In our view, legal costs should align with the value delivered to clients and the expertise of the legal profession. It's about more than just hours worked; it's about understanding what our clients need in the context of their unique business objectives and ensuring we deliver the best possible legal outcomes. ❓ So, what is changing? Graduate lawyer, Sarah Cooney, unpacks the key changes to be aware here and in carousel below: 1️⃣ In Stage 1 of the reforms, the new Scale, introduced within Appendix A of the Supreme Court (General Civil Procedure) Rules 2015, sets maximum hourly rates (ex GST) that can be charged for legal tasks based on a practitioner’s PQE and the legal skill required to undertake a task. We are thrilled to note that feedback from innovative billing firms was taken on board; the new costing framework will also have regard to the reasonableness of legal costs through an amended rule 63.48 of the Rules. In addition to a number of general factors, the Costs Court will consider the complexity of the matter, the skill and specialised knowledge of the legal practitioner, the urgency of the work and any other relevant matter when ascertaining reasonableness under Rule 63.48. In matters where the party entitled to costs is not charged on the basis of hourly rates, a reasonable amount will be allowed, having regard to the above factors in Rule 63.48. 2️⃣ In Stage 2 of the proposed reforms, we can expect the introduction of fixed costs for certain types of litigation, including personal injury and family maintenance proceedings, and for more complex matters, the requirement for a costs budget to be approved by the Court shortly after the commencement of proceedings. 🔎 Stay tuned for more updates as we navigate the evolving landscape of legal costing reform. #LegalCostsReform #ValuePricing #VictoriaLegalReforms #LegalIndustryInsights ⚖ Liz Harris Tessa van Duyn Peter Moran Nigel Evans Adrienne Trumbull Trent Milvain Jacqueline Wilcock Natalie Markovski Hayley Warren Demetrio Zema  

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Keen to learn more about construction arbitration in New Zealand? Introducing our latest article series that examines the three phases – pre, during and post arbitration. Click below to find out more about the pre-arbitration process, including strategies for effective negotiation of an arbitration agreement, pre-arbitration mechanisms such as mediation, and the importance of clear contractual provisions to streamline the resolution process. Stay tuned for more details about the arbitration process itself, where our construction arbitration experts will dissect each stage of the process and share practical advice. Janine Stewart, Matthew Ferrier, Stephen Price, Scott B Thompson #constructionlaw #arbitration #disputeresolution #legalinsights

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The latest video in CIArb Young Members Group (YMG) ‘Spotlight On’ series features Erika Williams FCIArb, independent arbitrator at Williams Arbitration, Australia. In this episode, Erika highlights Australia’s strong pro-arbitration stance by discussing two key cases.  The first explores the enforcement of arbitration agreements, while the second focuses on the enforcement of foreign arbitral awards.  A must-watch for anyone interested in arbitration and dispute resolution! 🎥 Watch below or visit our YouTube channel: https://lnkd.in/eg8nv4u3  #Ciarb #arbitration #legalprofessional #disputeresolution 

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For major construction projects, proportionate liability regimes ensure that all parties involved are liable for exercising reasonable care in their contracted works. Join us for an interactive webinar where Ethan Campbell (Associate) will discusses key principles of proportionate liability legislation in QLD and NSW, and strategies for navigating disputes involving multiple parties under proportionate liability regimes. Register with the link below. https://lnkd.in/gc5U3uYe

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