Construction Law Specialties

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 resolve through a fairly standard commercial negotiation process but many others resolve through more formal mechanisms, such as non-binding expert determination, conciliation and, most commonly, mediation. In Western Australia 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. One of our partners, Mark Blundell, is a mediator accredited under the National Mediation Accreditation System.

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.

Liability limited by a scheme approved under Professional Standards Legislation.

Construction Insights

Infrastructure expenditure affecting the Western Australian construction market

By David Marsh / 28/06/2021

Over the last 12 months, there have been numerous reports of a skills shortage in the Western Australian building and construction industry – in both blue and white-collar sectors. While the current boom is nowhere near that of 2012, there are a number of factors making it more difficult to top up the Western Australian building and construction industry from outside sources.

Are you SOPA Ready?

By David Marsh / 23/06/2021

This week (on 22 June 2021), amendments to the WA regime as set out in the Building and Construction Industry (Security of Payment) Bill 2021 were passed by both houses of WA Parliament and is currently awaiting formal assent by Governor. With a Western Australian security of payment regime set to undergo a root and branch overhaul, it is time to ask yourself: Am I SOPA ready?

Time Bars vs Estoppel: Valmont Interiors Case

By David Marsh / 03/06/2021

At the heart of the appeal was the question of whether an estoppel would operate to prevent a party, which directed additional works outside the express contractual variation regime, from bringing those works back within the contractual variation regime and then using the time bar provisions of that regime to bar the claim.

Notes on Boilerplate Terms of Contracts Impacting Construction Disputes

By David Marsh / 11/12/2020

This is a short article regarding two dissimilar cases, both of which focus attention on the fact that the boilerplate terms of contracts can have a significant impact on the conduct of construction disputes.

When Worlds Collide: Indemnities Vs Limitations of Liability

By David Marsh / 27/07/2020

While the usual caveats that apply to the impact of decisions refusing to grant summary judgment apply to NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 2020, there are at least important take-aways from the decision. The fact that it is a Court of Appeal decision also makes it worthy of note.