SOPA, Not So Super?

If you're wondering how effective SOPA is at quickly resolving payment disputes, the following article will provide some valuable insights. We take a look into Musikanth J in OSB Group Pty Ltd v Complete Hire & Sales Pty Ltd [2024] WASC 310 (“OSB”), where the Court resolved the conflict between SOPA and the Australian Consumer Law 2010 (Cth) (“ACL”) when seeking summary judgment for a payment claim under SOPA.

Construction Law Services

Project Development Legislation

The development of construction projects cuts across a myriad of public and private law issues. We have a detailed understanding of Western Australia’s legislative landscape (which has many features that significantly differ from other states) and extensive experience in advising clients in connection with Western Australian developments, including property developers, government bodies, service station operators and contractors in the energy and resources sectors.

Construction Law

We are fully conversant with a broad range of contracts such as design & construct, construction only, EPC, EPCM, consultancy, mining services contracts as well as the full suite of Australian Standard Construction Contracts (and associated agreements) and RAIA contracts. In addition, we are familiar with the body of construction contracts used locally by BHP Billiton, Rio Tinto, Perth Airport and CPB Contractors. We also have experience in creating amended standards and bespoke construction contracts for our clients as well as assisting them through the pre-tender and tendering processes.

Project Financing Advice

Most construction projects are subject to some sort of project financing, especially in the commercial and residential space. Whilst we do not act for financiers, we regularly advise clients on project finance documentation and the interface between the financing and project development documents, both prior to contract execution and during construction.

Construction Litigation

Solomon Brothers has a deep understanding of litigation generally and with respect to construction disputes, and are familiar with the Building Code of Australia, the Building and Construction Industry (Security of Payment) Bill 2020, and the Construction Contracts Act 2004. Our experience extends from domestic to commercial and multi-million dollar energy and resources disputes. It encompasses variation and extension of time disputes to more complex and unique defect liability claims. In managing these disputes, we have experience in all Western Australian Courts and Tribunals as well as the Federal Court and the TCC division of the High Court of England and Wales.

Construction Arbitration

Aside from litigation, Solomon Brothers has significant arbitration experience, both domestically and internationally, especially under the SIAC Rules. We have had experience with the standard Australian arbitrations, including the WA Commercial Arbitration Act 2012 to more modern arbitration practice, such as utilising chess clock procedure.

Alternative Dispute Resolution

Most disputes arise and are resolved without the need for a trial, including those in the project and construction industry. Some cases are resolved through a fairly standard commercial negotiation process but many others find resolution through more formal mechanisms, such as non-binding expert determination, conciliation and, most commonly, mediation.

In Western Australian courts, a form of mediation is a required step in all litigation and all of Solomon Brothers’ litigation partners have participated in the various Court-regulated mechanisms. However, both during and prior to Court proceedings, parties are free to engage private mediators to conduct a mediation and we again have substantial experience in such private mediations.

Construction Contract Act Disputes

Like all Australian jurisdictions, Western Australia has a security of payment regime, which is contained in the Construction Contracts Act 2004. Solomon Brothers’ experience in bringing and defending claims under the Act is unsurpassed. For example, acting for Brookfield Multiplex (as it then was) Solomon Brothers brought the first successful challenge to an adjudication determination. In 2015, Solomon Brothers also successfully acted for NRW in a series of payment claims and Supreme Court challenges against Samsung C & T arising out of the Roy Hill project.