So you think you can build?

Date: August 26, 2020
Author: FAL Lawyers
Posted in: Insights

Our construction lawyers have acted on matters involving bridges, mines, ports, apartment buildings, houses, commercial towers and buildings.

At the start, no matter who the parties are, they almost always have an amazing, amicable working relationship.

Then the variations roll in, the delays start and the parties start not to see eye to eye. Very soon that warm relationship freezes into icy and then burns into outright warfare.

Once a construction site dispute starts it is very difficult to resolve amicably.

Here are our tips to avoid the fights in the first place and, if unavoidable, to set yourself up for success.

1. Put a Ring on It: Seal the Deal with A Contract

The truth is that most disputes would never have occurred if the parties had entered into a proper construction contract. Even with the friendliest of relationships, when entering into a contract the parties may fail to consider important issues, or may have different impressions of what they have agreed to.

A well drafted contract must consider essential issues such as properly identifying the scope of the works and the procedure to vary the scope of works, timing of payments and whether the contract is for a fixed price, time for completion, procedure to deal with defective works and agreed method for resolving disputes.

2. Love Your Contract Like It’s Your New BFF

DO NOT just sign because the other side shoves a contract under your nose. It is absolutely money well spent to go to a lawyer and get a complete understanding of your rights.

Properly understanding your contract and negotiating any provisions that you may not be comfortable with will potentially save you hundreds of thousands of dollars.

When construction disputes are litigated, they are much more expensive than “garden variety” disputes. This is because inevitably you will need to get at least one expert to give evidence on your behalf. Not only are you paying legal fees but expensive witness fees also.

Construction litigation even about a house renovation can costs hundreds of thousands of dollars.

3. Be Aware: Missing a Deadline is Deadly!

Construction contracts and legislation are full of deadlines! You need to understand your contract well so you don’t miss important deadlines and lose key rights. In many cases if you fail to exercise the right before a deadline you can lose thousands of dollars.

For instance, if there are defects in the works under the contract, you will usually only be able to request rectification if you do so during the Defects Liability Period.

Also, as a builder or subcontractor, any variation usually requires a request to be made within a certain period of time.

4. If you get into a Fight, Get a Lawyer onto it Right Away!

If things start going bad, best first appointment is your local construction lawyer. Managing your way out of a dispute requires knowledge about what evidence you need and when it needs to be arranged. Further, if settlement is not possible, your lawyer will advise you in relation to your options moving forward and will help you to properly prepare for the dispute.

5. All We Are Saying is…Give Peace a Chance

Having said all of the above, despite the sticky situation a fight mid construction project inevitably brings, you should ALWAYS avoid a Court battle. Litigation is like going to the casino, only no one gives you free alcohol. If you like:

  • Wasting your time;
  • Throwing away lots of money on experts and lawyers;
  • Not seeing any return on your investment;
  • Having a 50/50 chance of paying someone’s else’s legal costs;

then construction litigation is for you!

However, if you would prefer to spend that money on building your future, then making all attempts to settle is the best option.

Therefore, even if you are getting less than you think is fair under the circumstances, it is usually preferable to settle the dispute rather than escalating it.

6. Love Thy Expert as Thyself

It is very common for construction disputes to involve disagreements in relation to defective works. No matter what your role is on Site, it is essential that you preserve any evidence that substantiates your claim. Once there is a dispute about the quality of works done, get an expert report ASAP to protect your position.

7. Think Strategy, Think Forum

Finally, if you can’t avoid the Court fight, make sure you choose the best forum to hear your dispute. Different Courts and Tribunals are better for different parties. Suitability will depend on your role on Site, the provisions of the contract, the amounts in dispute and the remedy you are seeking.

Want to know more? Feel free to contact our expert construction team.

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