Construction Law Specialties
Project Development Legislation
The development of 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.
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 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.
Solomon Brothers has a deep understanding of litigation generally and with respect to construction disputes. 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.
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 resolve 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.
By David Marsh
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  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.
By Aleksandar Vuksic
The phrases “construct only contract” and “design and build contract” are ubiquitous within the Australian construction and building industries. On...
By Radika Vogel
The recent decision of the Supreme Court of Western Australia in Kilmaley Investments Pty Ltd v City of Wanneroo  WASCA 156 is an interesting development in case law relating to the assignability of a right to statutory compensation.
By David Marsh
The main issue concerns a builder’s ability to recover money for the entirety of the work performed on a quantum meruit basis as an alternative to contractual damages where the owner repudiates the contract.
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