A claim for misleading or deceptive conduct under s 18 of the Australian Consumer Law is one of the most commonly used causes of action in commercial litigation in Australia, including in disputes on major projects in mining,...more
In Short -
The Situation: The Victorian Court of Appeal in Australia has delivered a decision with guidance to lawyers on their duties when dealing with witnesses in civil cases where there is a risk that the witnesses'...more
The Situation: For over a decade, all Australian jurisdictions have had in place security of payment ("SOP") legislation—statutory regimes providing for the submission and payment of progress claims, and resolution of payment...more
The construction sector in Australia has long been affected by insolvency and broader liquidity issues. In the last year, construction companies accounted for 26% of businesses that entered into insolvency, and insolvencies...more
In Short -
The Situation: The Australian Securities and Investments Commission ("ASIC") has released guidance to superannuation and managed funds as to how to avoid the risk of greenwashing when promoting...more
In Short -
The Situation: The recent decision in Lanskey Constructions Pty Ltd v Westrac Pty Ltd [2022] WASC 90 involved an application by a contractor for injunctive relief in relation to a call on its security. The case...more
The Australian Competition and Consumer Commission ("ACCC") also cautions government agencies to be alert to potential bid rigging in the procurement process for public tenders. ...more
Australia's competition authority settles allegations that port operator misused its market power.
The Australian Competition and Consumer Commission ("ACCC") secured a declaration in its first action under Section 46 of the...more
The security of payment regime in Queensland has undergone significant reform in recent years. Since the introduction of the Building Industry Fairness (Security of Payment) Act 2017 (Qld), the regime has remained the subject...more
11/9/2020
/ Amended Legislation ,
Construction Contracts ,
Construction Industry ,
Construction Project ,
Contract Terms ,
Contractors ,
General Contractors ,
Payment Schedules ,
Payment Terms ,
Subcontractors ,
Trusts
During the better part of 2020, the federal government has injected an unprecedented level of stimulus into the Australian economy in an attempt to mitigate the economic impact of COVID-19. As a result, despite a significant...more
10/15/2020
/ Australia ,
Bankruptcy Reform ,
Commercial Bankruptcy ,
Coronavirus/COVID-19 ,
Creditors ,
Debt Restructuring ,
Insolvency ,
Landlords ,
New Rules ,
Relief Measures ,
Small Business
Australia-wide, companies are navigating the uncertainties arising from COVID-19. Our previous White Papers identified the risks arising for construction projects and observed that the fallout is likely to give rise to...more
The government's latest restrictions will impact owners, contractors, and suppliers.
The Victorian Government has moved the Victorian construction industry to a "pilot light" status from 5 August 2020, until at least 16...more
[co-author: Juan Huertas]
Even as the world gradually eases out of lockdown, deals are rekindled and services are remobilized, no one doubts that the impact of the pandemic will continue to be felt for months and, some...more
6/26/2020
/ Construction Contracts ,
Construction Industry ,
Construction Project ,
Contract Disputes ,
Contract Terms ,
Coronavirus/COVID-19 ,
Force Majeure Clause ,
General Contractors ,
Infrastructure ,
Performance Standards ,
Subcontractors
The Situation: Following the deaths of eight miners at Queensland coal mines in the past two years, the Queensland Labor government has been under mounting pressure from the Construction, Forestry, Maritime, Mining and Energy...more
The Decision: A divided Sixth Circuit panel held that allegations of submitting late-signed supporting documents to Medicare could plead False Claims Act ("FCA") materiality and scienter.
The Reasoning: Timing regulations...more
7/16/2018
/ Centers for Medicare & Medicaid Services (CMS) ,
Certification Requirements ,
Dismissals ,
En Banc Review ,
False Claims Act (FCA) ,
False Implied Certification Theory ,
FRCP 9(b) ,
Materiality ,
Medicare ,
Pleading Standards ,
Qui Tam ,
Scienter ,
Signatures ,
Universal Health Services Inc v United States ex rel Escobar
The Situation: The High Court of Australia has, for the first time, confirmed that determinations by adjudicators appointed under security of payment legislation are not reviewable for errors of law alone.
The Result: The...more
The Situation: Most construction contracts, including AS4000 and AS2124, stipulate that a final certificate is issued following completion of the work, stating the final amount payable between the parties.
The Development:...more
The Situation: A recent ruling in MT Højgaard A/S v E.ON Climate & Renewables UK Robin Rigg East Limited by the UK Supreme Court gives guidance on construction contracts where the contractor undertakes both to deliver a...more
10/17/2017
/ Australia ,
Best Practices ,
Canada ,
Contract Interpretation ,
Contract Terms ,
Design-Build ,
Duty to Warn ,
Federal Industry Standards ,
Fitness for Particular Purpose ,
General Contractors ,
Scotland ,
UK ,
UK Supreme Court
The Situation: Australian courts have regularly maintained that contractors must strictly comply with any express conditions for extra time or money under construction contracts, including conditions requiring written notice...more
The Situation: The New South Wales ("NSW") State Government recently released an update to its NSW Public Private Partnership Guidelines. The Guidelines are used by NSW Government Agencies in procuring projects through a...more
10/11/2017
/ Australia ,
Bids ,
Contract Management ,
Guidance Update ,
Infrastructure ,
Infrastructure Financing ,
Innovation ,
Market Soundings ,
Private Sector ,
Project Delivery Methods ,
Public Private Partnerships (P3s) ,
Public Sector ,
Risk Allocation ,
Steering Committees ,
Taxation ,
Transparency
The Australian Commonwealth Government first introduced foreign resident capital gains withholding payments in July 2016 at a rate of 10 percent, in response to issues in collecting tax from foreign resident sellers and...more
8/30/2017
/ Affordable Housing ,
Australia ,
Capital Gains ,
Clearance ,
Exceptions ,
Indemnity ,
Non-Residents ,
Penalties ,
Real Estate Transactions ,
Sellers ,
Tax Rates ,
Variances ,
Warranties ,
Withholding Requirements ,
Withholding Tax
Last month, we reported in our White Paper on taxation proposals directed at infrastructure and utility privatisation transactions. Since we wrote, the Commonwealth Treasury ("Treasury") has published a policy paper directed...more
4/5/2017
/ Australia ,
Corporate Taxes ,
Foreign Investment ,
Infrastructure ,
Investment Funds ,
Passive Activity ,
Privatization ,
Structured Finance ,
Tax Deductions ,
Tax Rates ,
Tax Reform
At the end of January 2017, the Australian Taxation Office ("ATO") updated its draft of the Privatisation and Infrastructure—Australian Federal Tax Framework ("Framework") and issued a Taxpayer Alert TA 2017/1 on stapled...more