I made a mistake in my payment claim, can I adjust the scope and value?

Depends. If it has been paid then, unlikely, but you can claim for the (unpaid) works as construction works in your next payment claim. If it is in dispute, then errors and omissions can be corrected before any amounts are adjudicated. If the errors are discovered after the final payment claim has been paid the payment request may have to be made outside the SOP Act.

I did not want to enter into a dispute with the builder because he gives me regular work, so I have been accepting the lower amounts he allowed in the payment schedules, but now I may make a loss on the project… can I claim all of the unpaid amounts at the end of the job?

Yes, you can include the portions of the completed works that have not been paid in a new payment claim even if the works were completed a few months beforehand. However, you may have a problem if you submitted your final payment claim, or waited too long and cannot accrue a new reference date.

Are the periods of time allocated for the various actions in the SOP Act suggested or mandatory?

Mandatory. Non-compliance with time means that an adjudicator may find that he/she does not have jurisdiction to adjudicate the dispute. However, if the respondent did not issue a payment schedule, he/she cannot submit one when the adjudication process commenced, and the respondent cannot raise new issues for non-payment in addition to those listed in the payment schedule.

Are all works in a building ‘construction works’ under the SOP Act?

No, works such as the rectification of defects are not ‘construction works’ that accrue a new reference date.

Is an owner with a ‘building owner permit’ allowed to change his/her mind and decide to live in the property so now classifies as a ‘resident owner’ and has the construction works excluded from the SOP Act?

No, the owner is bound to the contract as written when the parties entered into it.

The builder says he/she can only get $250,000 per month from the lender to pay for the works. Can a progress claim be capped to that amount?

No, ‘pay when paid’ provisions are not enforceable under the SOP Act. This principle also applies to a builder that will not release payments until it is paid by the Principal. Furthermore, a clause is written into the contract to that effect has no legal effect and can be ignored.

The contract says that formal communication is by post, but we communicated only via email during the execution of the contract. Now that we are in a formal dispute, the builder wants to enforce the contract to the letter. Have I lost my right to payment because I failed to notify the builder formally by post?

Unlikely. The adjudicator should be asked in the application to look at how the parties communicated during the execution of the works, and if different from the written contract, the method of communication used during the conduct of the works is likely to be accepted as formal communication. It could be argued that the contract was amended or changed ‘by conduct’ and that the clause has no effect.

Do I have to pay for the works if the company or the tradesman carrying out the works are unlicensed?

No, the SOP Act does not allow for payment for unlicensed work.

If the contract is silent on markups for indirects and overhead and profit on variations instructed by the respondent, am I entitled to add any markup to any variation instructed by the builder?

Yes, so long as it is a reasonable amount. You need to justify the percentage applied in accordance with standard industry practice, an adjudicator can approve or vary the amount.

Am I allowed to charge for supervision, overhead and profit when firming up a PC sum.

Depends on the definition of PC sum. Most QSs understand a ‘Provisional Cost Sum’ to cover a yet-to-be-defined scope so overhead and profit are added to the material and labor cost component when the scope is finally defined. However, some people confuse ‘Provisional Sums’ with ‘Prime Cost Sums’ where the overhead and profit (and sometimes even the labor component) is considered to have been allowed in the contract price. Yet others (i.e. plumbers) read PC sum as ‘Prime Cost Items’ as in a re-measurement contract where the contractor will get compensated for the actual quantity of PC items at the PC rate multiplied by the adjustment amount as a lump-sum on top of original lump-sum amount.

I was unable to travel to the site due to COVID, can the builder hire a local contractor and backcharge me for the works?

Depends. If your contract includes a ‘not to be exceeded’ dates, a mandatory schedule with a critical path, or a ‘time is of the essence’ clause, the builder may backcharge you even if you did your best to travel to the site. If the contract does not, then it is unlikely.

We were delayed due to the builder calling us to stay back because the pre-works for our trade were not ready. However, the builder now claims that we did not notify him of the delay within 7 days as per the notification requirements in contract. Are we now time-barred from making a claim for the delay?

No, in this case, it is the builder who first became aware of the delay, so the notification requirements became superfluous (‘it notified itself’ when he called you). Always ask in a contract without a formal notification clause ‘what constitutes notification?’… you may be surprised by some of the answers.

Renewables Lawyers

We are Electrical and Control Systems Engineers

Before we became lawyers, we were capable of designing and installing High Voltage Generation and High Voltage and Low Voltage Distribution Systems including Switchboards, Protection Schemes, sizing Uninterruptable Power Supplies, Inverters, BESS, and Statcom Systems as used in wind and solar farms and conducting load flow and harmonic studies

We designed and supervised the installation of Variable Speed Drives, HV and LV Cabling and Distribution, Capacitor Banks, Motor Control Centres, PLC, Profibus, Modbus, and Honeywell Device Net control systems, Fire Detection and Protection Systems, EWIS, Lighting, General Power, Computer, Data, PABX and Telephone systems, supervised testing and commissioning tasks, certified completed installations and negotiated electricity supply agreements and connection requirements with AEMO, Pacific Power and many Supply Authorities around the Country.

We are members of Engineers Australia and the CIBSE and participated in the creation and updates to Australian Standards. We attend regular seminars sponsored by engineers Australia and AEMO.

We managed adjudication and arbitration processes in Australia, Dubai and Singapore.

Electrical and Control Systems Engineers

What do we help our clients with?

Wind, Solar, Geothermal, Gas, Hybrid projects, Battery energy storage;

Sale and Purchase of energy agreements;

Power trading, cross border supply and wheeling

AEMO compliance issues;

Project development and financing;

Planning, environmental and property issues;

Site Acquisition;

EOIs, MOUs, In-Principle agreements;

Design and Procurement Strategies;

Construction and operations support;

Intellectual property, including patents;

Litigation and disputes, including alternative dispute resolution (ADR), arbitration and mediation

Renewables commercial and regulatory issues

Taxation issues.

Field of Specialization

Our specialist field is commercial project development, defining scope, cost and procurement and construction plans. We are also experts in the field of claim preparation and defense for delay, scope changes, variations and unforeseen events.

Australian Institute of Project Management

Specific Professional Engagements

Strategic advice to major turbine manufacturer for tendering and development and commissioning of several wind farms in Australia and New Caledonia. Contract administration tasks including drafting of correspondence, back-end claim management, determination of merit and contractual entitlement for cost claims, delay and disruption and preparation of submissions and evidence bundles for arbitration proceedings conducted by major external law firm.

Claims preparation for contractor hired to erect several windfarms. Prepared the Payment Claim for 18m of outstanding variations on changes to the electrical requirements to the provision of unsuitable roads by the principal, which caused damage to turbine blades during transport.

Prepared an expert report for a major law firm as electrical engineering experts regarding changes to the scope of the electrical installation works and the additional costs of variations that arose due to factory-assembled and pre-wired masts not being suitable for the new turbine models delivered for the project.

Prepared claim for turbines damaged in transit due to poor preparation of roads by civil contractor.

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Renewables Lawyers
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Holder Name: BAKER MERZ LAWYERS PTY LTD

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Services: Security of Payments Act QLD, Claims Preparation,
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