Richard Spring’s Post

Hot off the press from the Supreme Court: Most collateral warranties now won’t qualify as a “construction contract” under the Construction Act and statutory adjudication won’t apply to their disputes. To get round this going forwards, parties with an appetite for adjudication will need to include voluntary adjudication provisions in their collateral warranties at contracting stage. Sensible reasoning and result as more fully outlined by Anneliese Day KC #construction #adjudication #spencerwest

💡 In this edition of Commercial Disputes Weekly we consider the first decision by the Supreme Court on the meaning of “construction contract”, as well as judgments on agency, novation and interest provisions. Read more here: https://lnkd.in/eNrM9fkx   #WFW #DisputeResolution #Construction #Maritime

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

On 9 July 2024, the UK Supreme Court delivered judgment in a case which provides useful guidance as to whether a collateral warranty should be regarded as a “construction contract” for the purposes of adjudication. Clare Cashin, of our projects and construction group discusses a new view on Collateral Warranties. To read the full article click here: https://lnkd.in/e7EQYVke   #Construction #Adjudication #CollateralWarranties

In 1153765 B.C. Ltd. v. Dann, 2024 BCSC 2148, Justice Douglas dismissed a general contractor’s (G.C.) certificate of pending litigation (C.P.L.) because the company’s notice of civil claim failed to plead an interest in land. The Plaintiff, 1153765 B.C. Ltd. (the "G.C."), contracted with a homeowner in Burnaby, B.C., to complete a partially constructed residential home. Upon completing the project, the homeowner failed to pay the G.C. $183,231.32. Instead of filing a builder’s lien, the G.C. commenced this action, seeking a constructive trust over the property based on the unjust enrichment its work allegedly provided to the owner. The Defendant argued that the trust claim was an attempt to circumvent the 45-day lien period under the Builders Lien Act and urged the court to strike it down on public policy grounds. Justice Douglas set out the common law test for a constructive trust as requiring: (1) enrichment of the defendant, (2) a corresponding deprivation of the plaintiff, and (3) no juristic reason justifying the enrichment. He found that the G.C.’s pleadings asserted the existence of a contract between the parties, which constituted a juristic reason, thereby precluding a proprietary trust claim. In obiter, Justice Douglas further noted that the G.C.’s pleadings disclosed no exceptional circumstances in the residential construction context to justify a proprietary remedy such as a constructive trust over a monetary award. In conclusion, Justice Douglas held that a C.P.L. is an extraordinary pre-judgment mechanism designed to protect a valid claim to an interest in land. It differs from a builder's lien, as it cannot act as pre-judgment security. Consequently, a C.P.L. cannot substitute for a builder’s lien in resolving typical construction contract disputes. For builders, the case re-affirms the importance of filing their claim of lien within the 45-day lien period. #constructionlaw #liens

In a long-awaited decision, the Supreme Court has clarified when a collateral warranty can be a 'construction contract' under the Construction Act 1996. We've deconstructed the court's ruling in our latest article, where we look at the facts of the case and the key takeaways. Find out more: https://loom.ly/cuy8x9w

Explore the latest legal developments in Ontario's construction industry.🛠️ Bevin Shores, partner at Gowling WLG, reveals insights into Ontario's construction legal landscape. Discover how procedural fairness is revolutionizing interim adjudication review. Read it here: https://lnkd.in/gBZY7WAq #ConstructionLaw #LegalInsights #GowlingWLG #OntarioCourt #AdjudicationFairness 

In their article “Post-Repair Diminution in Value Claims: ‘Stigma Damages’ in Future Cases,” which originally published in The Legal Intelligencer, Semmes principals Stephen McCloskey and Thomas McCarron delve into the evolving landscape of “stigma damages” in construction defect cases. 🏗️ The two explore whether property owners can seek recovery for post-repair diminution in value—damages related to the perceived stigma of a property even after defects have been fixed. The article sheds light on the limited case law and discusses the challenges of claiming both repair costs and diminution in value in construction disputes. 🏗️ As this area of law continues to develop, we expect to see these claims arise more frequently in future cases, particularly for residential projects. 🏗️ Read more to understand how these claims may impact future litigation. https://lnkd.in/gqxWumph #ConstructionLaw #Litigation #RealEstate #DiminutionInValue #LegalInsights #SemmesLaw

Elizabeth Leonard takes “A Closer Look at North Carolina’s Anti-Indemnity Statute – and Other Defenses to Indemnity Claims in the Construction and Design Professional Context” on our blog. Check it out to see how the state’s Anti-Indemnity Statute may impact construction professionals. #constructionlaw

Can a simple payment agreement impact your rights as an owner under the B.C. Builders Lien Act? Rob Davis and Mike Morgan, FCIArb., analyze a recent B.C. Court of Appeal’s decision which determined that an owner’s agreement to pay a subcontractor after work had been performed did not alter the owner’s right to discharge that subcontractor’s lien claim. This case reinforces that while owners may enter into agreements with subtrades to pay outstanding amounts, such arrangements won’t necessarily impact owners’ rights under the Act. Read the full blog here: https://bit.ly/3A3fA9f #ConstructionLaw #BuildersLien #LegalInsights #CourtRulings