Welcome to the February edition of the Doyles Construction Lawyers newsletter.
We hope you enjoy the articles.
Cost Plus – Nirvana or Hedes?
Often a contractor celebrates when a customer agrees to contract with him on a cost plus arrangement. A cost plus arrangement can either be a simple cost plus contract or a more complex cost plus deal like a guaranteed maximum price with share of savings.
However, contractors should realise that the cost plus type of contract contemplates an approach to payment which is substantially different to that in a fixed price lump sum contract.
In a fixed price lump sum contract the builder is entitled to spend whatever money he wishes to carry out the works. He is then to be paid the value of the works under the contract and whether or not he makes a profit or has been inefficient is a matter for himself.
Read the full article here – Cost Plus – Nirvana or Hedes?
Why litigants should carefully choose expert witnesses
Expert evidence has been identified as one of the principal sources of expense, complexity and delay in civil proceedings. In this article we l outline the consequences that can happen to one of the parties when an “expert” is found to less than objective and not an expert.
The moral of the story is to ensure your expert is expert and objective too.
A recent Building Case highlights the consequences for litigants
This is an extract from a recent VCAT decision Dwell v Nava Homes Pty Ltd where the Tribunal made very clear findings about the role of experts.
The Brief Facts
Mrs Dwell (Owner) entered into a contract with Nava Homes Pty Ltd (Builder) for the construction of a new home in Williamstown.
Read the full article here – Why litigants should carefully choose expert witnesses
A Costly Case of Slab Heave
A recent VCAT decision highlights the need for builders to carefully follow engineering drawings when undertaking site excavation and to ensure that proper drainage is installed to stop water reaching the foundation of the slab to prevent the possibility of slab heave.
Background to the Dispute
Ms Watson was the Owner of a house located in West Melton, Victoria. Richwall Pty Ltd (“the Builder”) was engaged by the Owner under a building contract dated 7 July 2007 to construct a house for the Owner for an agreed price of $224,650.00.
The house was constructed on a waffle pod raft slab designed by McFarlane and Partners Pty Ltd (“McFarlane”). McFarlane were initially joined to the proceedings but were removed prior to the commencement of the hearing.
Construction of the house commenced in early August 2007 and possession of the completed house was given to the Owner on 6 December 2007.
Read the full article here – A costly case of slab heave
The benefits of mediation in a commercial dispute
Court cases are expensive and that legal costs could escalate to an intolerable level. Lawyers will often recommend alternative dispute resolution options – mediation being one.
Mediation allows parties to remain in control of their own disputes and outcome while facilitating parties to tell their side of the story to the other party and the mediator. What exactly is mediation? Mediation is one form of alternative dispute resolution while others available include Early Neutral Evaluation, Expert Determination and Arbitration.
In essence mediation is an informal conflict resolution process brought before an independent, neutral third party. Mediation gives the parties the opportunity to discuss their issues, clear up misunderstandings, and find areas of agreement in a way that would never be possible in a court case.
Read the full article here – The benefits of mediation in commercial disputes