Consultant: “There is only one outstanding issue to discuss in this contract. We are unable to accept liability to a third-party as noted in clause 5 of this contract. Can we discuss this clause in more detail?”. Client: “Yes. But we cannot agree to delete this clause as there may be third parties involved in […]

What should you do if you are presented with a collateral warranty? a) Sign it without thinking; b) Consult a dictionary; or c) Contact your insurance broker. As you would expect, we would advocate c). If you are working on a particularly complex project you might be asked to sign a collateral warranty. A collateral […]

First Building Product Use Ban Issued by the Commissioner for Fair Trading The NSW Commissioner for Fair Trading has imposed the first building product use ban under the Building Products (Safety) Act, which commenced in December 2017. The Act provides for the Commissioner to prohibit the use of a specified building product in a building […]

Certificates may come in many forms and do not necessarily need to be labelled as a “Certificate”. Increasingly, consultants are being asked to issue certificates to third parties not necessarily aligning with the services they have been engaged to provide. For example, at the request of your client’s financier, you write a letter to the […]

“You’re the only consultant who won’t sign our contract,” said practically every commercial and government client ever, at some point when they became frustrated with the contract negotiation process. When your client suggests that you are the only consultant who seeks to negotiate more balanced contract terms, how do you prove otherwise? How can you […]

Proportionate liability legislation was introduced in Australia nationally between 2002 and 2004 for claims involving economic loss or property damage arising from a failure to take reasonable care. In 2018, what are the implications for consultants and their consultancy agreements?

Ten Hot Tips for Inspections When the builder and trade sub-contractors are insolvent, or impecunious, or simply resistant to fixing building defects, principals can find it advantageous to instead pursue their consultant team for negligent inspection of the building work. Your inspection or observation role is also one of the most important quality checks on […]

The bad news is that, yes, it probably is. The default position for all of us is that, if our work is negligent or otherwise in breach of a legal duty, there is no limit or “cap” on the amount of compensation we can be required to pay. So long as the loss is caused […]

From 1 March 2018, projects tendered by the Queensland Government will use PBAs on building and construction projects valued between $1 million and $10 million (including GST), where more than 50% of the contract price is for building work. The new PBA regime under the Building Industry Fairness (Security of Payment) Act 2017 is complex […]

In February, we asked for feedback on your experience working under a partial services or novated procurement structure. This is what you said. Our survey results illustrate both the variation in experience, and the areas of strong consistency. We hope it will be a useful opportunity to benchmark your experience against your peers.