Your construction contract will map out the pathway to your building project completing on time and within budget and detailing how any losses and risks are handled.
It is an essential tool in managing and shifting risk during the construction phase and importantly, lays out the rules if a dispute arises. The chances of a dispute are greatly reduced if both parties understand what the parties are agreeing to.
How can you mitigate and manage construction risk?
It is essential that you:
- select the appropriate type of construction contract for your project; and
- analyse and consider the interplay between the ordinary contractual clauses, indemnities, warranties (either statutory or contractual) and representations.
The unique knowledge of our construction and strata law team members, across both new builds and remedial works, allows us to advise you as to the appropriate construction contract, and to tailor that contract for your construction project.
Understanding the essence of each clause is essential in crafting a well-drawn contract applicable to the project at hand.
Why select one type of clause over another?
Answering this question requires understanding of each type of clause and applying that to the specific project.
Ordinary Contractual Clauses
- These clauses specify the general obligations and promises of the parties to the contract setting out a broad range of matters, including: detailing the performance expectations, payment terms, dispute resolution mechanisms and other obligations and rights of the parties; they set the framework and lay the pathway of how the contract will be administered, performed and finalised.
- Breaches of ordinary contractual clauses lead to breach of contract claims where the injured party seeks to enforce performance of the contract obligations of the other party, may lead to termination of the contract and/or allow a party to seek damages for its losses suffered.
- The burden is on the party alleging the breach to prove that the contract was breached at the fault of the other party, and that they suffered a loss as a result.
Indemnities: useful when you want to ensure compensation for certain risks or losses, independent of any fault or negligence by the opposite party
- These clauses increase liability beyond what is usually required by law and operate on a no-fault basis. They are used in contracts to place an obligation on one party (indemnifying party) to compensate the loss of the other party (indemnified party). We use these clauses to allocate risk. As explained by Kirby J in Andar Transport Pty Ltd v Brambles Ltd (2004) Indemnity clauses are provisions that purport to exempt one party from civil liability which the law would otherwise impose upon it. They shift to another party the civil liability otherwise attached by law to the first party. Self-evidently this is a serious thing to do or to attempt to do.
- Drafting an indemnity is useful when you want to ensure compensation for certain risks or losses, independent of any fault or negligence.
- Breach of an indemnity is a breach of contract but does not usually lead to termination of the contract. Rather this breach of contract usually results in a claim for damages for the loss suffered. The indemnified party does not need to prove fault or negligence by the opposite party, rather only that the indemnity event occurred and that a loss was suffered. This is often an easier breach of contract to prove than for breach of an ordinary contractual clause; specifically because one is not required to prove fault or negligence on the part of the opposite indemnifying party.
Warranty Clauses: these are used to assure and promise the other party of the truth of a certain fact
- Warranties are contractual promises about the truth of certain facts or conditions, often which may be difficult to verify or which may occur in the future. These promises are made with the intention of persuading the other party to enter into the contract, for example making promises about expertise, experience, quality, condition or performance of goods or services.
- Breach of warranty is a breach of contract and typically leads to a claim for damages resulting from the breach but does not usually allow for termination of the contract.
- The party claiming breach of warranty must prove that the warranty was breached and that the breach caused loss. One need not specifically prove that but for the warranty the opposite party would not have entered into the contract.
Representation Clauses
- Representations are statements of fact made to induce the other party to enter into the contract. They are not contractual promises (like warranties) but are considered material to the decision-making process. One must specifically prove that the representation was the material reason which lead the opposite party to enter into the contract.
- If a representation is proven to be false, unlike warranties, misrepresentations do not involve breach of contract but rather breach of the duty of good faith. The innocent party can pursue remedies for misrepresentation, such as rescission of the contract or damages under tort principles.
- The burden of proof rests on the party claiming the misrepresentation to prove that the representation was false and that it induced them to enter the contract which resulted in that party suffering a loss.
How can we help you mitigate and manage construction risk?
Our construction and strata lawyers understand the nuances of each construction contract, how these clauses function and the market conditions in the construction industry.
We can assist you to:
- select the correct contract to use for your construction project or construction remedial project;
- analyse the different types of clauses selecting which to amend, include or remove;
- understand the ramifications of, for example, how and when to use each type of clause and how to shift your risk, get your construction completed on budget, and increase profitability; and
- ensure you meet your obligations under applicable legislation, and newly introduced or amended legislation such as the Design and Building Practitioners Act 2020 (NSW) or the Australian Consumer Laws – Unfair Contract Terms provisions as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
By giving you a construction contract that is tailored to you, we can set you, and your construction project up for success and profitability.