BUIL5035-Introduction to Construction Law Report Writing – Law Assignment Help

Assignment Task

Task

Case Scenario Facts:

Davey Construction Pty Ltd (Davey), the contractor, successfully tenders for the construction of a mixed retail/commercial development called ‘Sapphire Tower’ in the Adelaide City Centre. The head contract between Davey and the principal, Sapphire Developments Ltd (Sapphire), is formed using the AS 4000 General Conditions of Contract (with amendments) in the lump sum amount of $6,727,872 (excl GST) broken down as follows:

7 Service of notices.

Unless provided otherwise elsewhere in the Contract, a notice includes any document transmittal, request, consent, approval, direction or other communication under or for the purposes of the Contract. This clause also applies to any notices served under the Building and Construction Industry

Security of Payment Act.

To be valid, a notice under the Contract must be delivered by hand, by courier, by pre-paid post, email or by facsimile, addressed to the other party at the postal address, email address or facsimile address described in Annexure Part A (if any) or last communicated in writing to the person giving the notice.

A notice shall be deemed to have been given and received if:

a) delivered in person, when delivered;

b) sent by pre-paid post to an address within Australia, two (2) Business Days after the date of posting;

c) sent by facsimile, on the day and at the time indicated in the transmission report issued by the facsimile machine at the conclusion of successful transmission; and

d) sent by email, on the day and at the time indicated in the sender’s computer provided that the sender does not receive a message indicating that the e-mail has not been received.

If, however, the result of a) to d) above is that a notice would be taken to be given or made on a day that is not a business day, or is later than 4.00pm (local time), it will be taken to have been given or made at the commencement of business on the next business day.

The Contractor shall claim progressively at the times stated in Item 28. An early progress claim shall be deemed to have been made on the date for making that claim.

Each progress claim shall be given in writing to the Superintendent, provide evidence of the amount due to the Contractor and shall include:

a) details of the value of WUC done to the time stated in Item 28 together with details of other moneys then due to the Contractor pursuant to the provisions of the Contract;

b) the total gross value of WUC previously scheduled;

c) the amount of the contract sum being claimed by the Contractor;

d) an itemised schedule of variations; and

e) such other information as the Contract may require or which the Superintendent may reasonably require. For the purposes of the Building and Construction Industry Security of Payment Act, the Superintendent acts as agent of the Principal in regard to receipt of the Contractor’s payment claim or a final payment claim.

37.2 Payment Schedules

The Superintendent shall, within 15 business days after receiving such a progress claim (pursuant to subclause 37.1), issue to the Principal and Contractor a payment schedule. Unless expressly stated otherwise, a payment schedule or final payment schedule which is:

i) issued and delivered pursuant to the Contract; and

ii) compliant with the Building and Construction Industry Security of Payment Act, is a payment schedule for the purposes of the Building and Construction Industry Security of Payment Act.

The payment schedule shall set out the calculations used by the Superintendent to value the amount of the payment which evidences the Superintendent’s opinion of the moneys due from the Principal to the Contractor, or from the Contractor to the Principal, as the case may be. The payment schedule shall identify the progress claim submitted by the Contractor to which it relates, and shall include:

a) the total gross value of the work carried out under the Contract by the Contractor as at the date of the progress claim;

b) the total gross value of the work carried out under the Contract by the Contractor scheduled in the previous payment schedule;

c) the value deducted for work claimed but which, in the Superintendent’s opinion, has either not been carried out or is defective;

d) any amounts the Principal is entitled to deduct, withhold or set off pursuant to the Contract;

e) any amounts otherwise due from the Principal to the Contractor, or from the Contractor to the Principal, arising out of or in connection with the Contract; and

f) the reasons for any difference between the amount of the payment schedule and the amount claimed in the Contractor’s progress claim. For the purposes of the Building and Construction Industry Security of Payment Act, the Superintendent acts as agent of the Principal in regard to the issue of a payment schedule.

The Principal shall within 21 days after receiving the payment schedule pay to the Contractor the amount shown in the payment schedule as due to the Contractor.

If the payment schedule shows an amount due from the Contractor to the Principal, the Contractor shall pay such an amount within 7 days after receiving the payment schedule. Neither a payment schedule nor a payment of moneys shall be evidence that the subject WUC has been carried out satisfactorily. Payment other than final payment shall be payment on account only.

Relevant contract particulars in Annexure Part A of the contract are as follows:

Item 12 states “5%”

Item 13 a) states “retention moneys”

Items 13 c) states ‘5%’

Item 13 e) states “unconditional performance for full amount of unfixed plant and materials” Item 28 a) states “28th day of each month for WUC done to the 27th day of that month”

Item 29 lists “Carpentry and Metalwork”

Item 30 states “5% per annum”

The work under the contract (WUC) is approaching the end of its eighth month and, on 28 September 2021, Davey’s contract administrator emails Progress Claim No.8 (shown below) to the superintendent. The email is received and opened by the superintendent at 2pm on 28 September 2021.

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