Front end Construction
The best way to minimise disputes is to pre-empt and plan. Come and see us with your Contracts, regardless of how big or small the project is, the advice you will receive from the outset will protect you in the long run.
It is often taken for granted that a successful project is 50% planning and 50% implementation. Accordingly, the success of a project can be achieved before the first shovel hits the ground, if the proper contracts and contract structures are put in place, which compliment your commercial interests as well as balancing the satisfaction achieved by the end user.
Your Contracts are important and you should take the time to consider and plan them. We adopt the following approach to achieving the most suitable Contract for our clients:
Contract Delivery Advice
We provide advice on contract administration, claims detection, assessment and prevention, claims negotiation and strategy. Construction does not take place in isolation from the business community, commercial issues may impinge upon a project. Additional areas of law that we may be required to address include issues in the area of trade practices, intellectual and other industrial property rights, industrial relations, environmental law and property law to name just a few.
We optimise risk allocation and efficient project management to plan and confirm insurance cover and conditions. Where, in the administration of contracts, difficulties arise involving complex or highly technical issues of contract law, we are able to advise our clients on the technical issues without losing sight of the overall commercial position.
We select and modify standard form documentation to develop specific documentation, particularly contracts: design and construct, guaranteed maximum price, novated and incentivised contracts; If the principal has elected to use one of the standard contracts common in the industry, then we can develop amendments directed for the client’s protection. Common areas of interest to most client’s are notably performance bonds and bank guarantees, delay costs and liquated damages, retention, variations and progress claims.
Back end Construction
Due to the nature of the beast, initial advice and contract planning will reduce the risk of disputes but unfortunately they can not be eliminated and need to be resolved head on as and when they occur. Today, there are a number of alternative methods of dispute resolution, other than litigation, which provide commercial outcomes at a fraction of the cost of litigation. Our experience prides itself on achieving commercially sensible results for its client’s at reasonable expense.
We design appropriate dispute resolution plans encompassing litigation, arbitration, expert determination and alternative dispute resolution for construction claims, professional indemnity and other insurance claims (including conduct of proceedings in all jurisdictions and in arbitration), with a preference for cost effective mediation or alternative dispute resolution.
The firm has considerable experience in the conduct of litigation at all levels of jurisdiction across Australia and appears as counsel in a high percentage of interlocutory hearings. Our lawyers are also experienced in using alternative methods to litigation in order to resolve disputes. Our experience in areas of mediation and commercial negotiation helps to achieve more client-satisfactory results more promptly than the litigation process.
Experience shows that early identification of disputes is essential to their minimisation and ultimately leads, to a successful project. Our role at this time is two-fold: we identify any technical steps that must be taken under the contract and we work with our clients to achieve a satisfactory and early resolution of disputes.
Alternative Dispute Resolution
We explore cost effective methods of dispute resolution, prior to advising Litigation, such as:
- Adjudication under the Building and Construction Industry Security of Payment Act 1999 NSW (the Act) and the equivalent legislation in other states of Australia and New Zealand. The Act has long cut down time and costs of seeking payment of disputed claims and has worked effectively. With recent changes to the legislation in NSW and across Australia, it is important to keep up to date with the Act and ensure your invoices and claims are made in accordance with the Act. We draft it all, from Payment Claims, Payment Schedules and Adjduication Applications and Responses. Our lawyers have extensive experience in these types of claims and achieved favourable results for its clients. While these claims do not provide a final decision, they allow for funds to keep the project moving and should be a contractors first port of call;
- Settlement Conferences are useful and we look to implement those from the outset to better understand the dispute and if no resolution, at least a better understanding and a narrowing of the issues. We provide the facilities to hold and engage in these discussions with the other parties adopting a sensible and structured approach to maximise the likelihood of a resolution. Often, a partial agreement is a good commercial result;
- Mediation, similar to settlement conferences but assisted by a third party and independent mediator, who makes no decision, but assists the parties to a reasonable outcome. Often held at a neutral venue, we treat these settings professionally by ensuring the parties’ positions are known and documented in advance and provide the client the freedom to discuss the matter on a without prejudice basis;
- Arbitration, similar to mediation but assisted by a third party and independent arbiter, who makes a binding decision. Often held at a neutral venue, we ensure that the parties positions are known and documented in advance and evidence is presented, received and cross examined to ensure the best possible commercial outcome.
- The old fashioned lets get together and sort it out, has always been the starting point, we encourage this from the outset. We put our steal capped boots on and get into the trenches with you to see if the issues can be resolved through communication and a clear understanding between commercially reasonable parties.