John Barron’s Post

We often see obligations to proceed regularly and diligently in construction contracts. What does that mean? Can the Employer terminate if the Contractor doesn't do this? "n practice, the terminating party will need to justify its decision and it would be wise to ensure that it can be clearly explained and supported by strong evidence. It should consider critically whether any improvement in a period for correction is sufficient to satisfy the contract." #jct Here are Peter Stockill and Sam Mullender of Penningtons Manches Cooper LLP https://lnkd.in/eVmxgMTC

Terminating construction contracts for breach of progress obligations – key questions We are often asked to advise clients on whether and how a termination can be made arising out of delay (or whether an attempted termination was valid). In this short note, Sam Mullender and I provide some practical tips in response to frequently asked questions. https://lnkd.in/dkET5egt

Recent court ruling impacts loss and expense claims in construction contracts. In FES Limited v HFD Construction Group Limited, the Outer House clarified that timely notification of claims for loss and expense is a condition precedent to entitlement under the SBCC Standard Building Contract (2016 Edition). The decision underscores the importance of proper contract administration and demonstrates that a failure to fully comply with notice requirements could jeopardise contractors' entitlements. Kieran Thrall and Kate Ross detail the case and its industry implications in their latest article: https://ow.ly/7U6p50RgKSE #ConstructionLaw #ContractAdministration #LossandExpense

Do you have questions about how to preserve flow-through claims against owners on construction projects? Read our case summary of Walsh Construction v. Toronto Transit Commission, 2024 ONSC 2782.

The Construction Act has undergone critical amendments aimed at enhancing payment certainty, improving dispute resolution, and simplifying lien processes. Key changes include mandatory annual holdback releases, expanded statutory adjudication, and updates to pre-construction lien rights. These reforms aim to address inefficiencies, support contractors, and foster a more equitable construction landscape. JTE Claims Consultants Ltd. provides a wide range of services to the Canadian construction industry, including construction claims consulting services and commercial advisory and project control services. Visit https://lnkd.in/gJW8uR4 to learn more. #ConstructionLaw #PaymentCertainty #DisputeResolution #ConstructionReform #JTEClaims https://ow.ly/r2VO50U8hi5

The Construction Act has undergone critical amendments aimed at enhancing payment certainty, improving dispute resolution, and simplifying lien processes. Key changes include mandatory annual holdback releases, expanded statutory adjudication, and updates to pre-construction lien rights. These reforms aim to address inefficiencies, support contractors, and foster a more equitable construction landscape. JTE Claims Consultants Ltd. provides a wide range of services to the Canadian construction industry, including construction claims consulting services and commercial advisory and project control services. Visit https://lnkd.in/g43aR6r to learn more. #ConstructionLaw #PaymentCertainty #DisputeResolution #ConstructionReform #JTEClaims https://ow.ly/r2VO50U8hi5

This is an excellent article by Joe Darr in the Spring 2024 edition of the ABA Construction Forum’s “Under Construction” about a recent case in the United States District Court for the District of Nevada. In United States ex rel. Sustainable Modular Management, Inc. v. JE Dunn Construction Company, “the court concluded that a contractor’s excess completion costs were consequential damages that were barred by a waiver of consequential damages similar to those found in many construction contracts and subcontracts.” Case No. 2:20-cv-790-GMN-NJK (D. Nev. Mar. 21, 2024). Damages for breach of contract are typically limited to direct and consequential damages. It’s universally accepted that consequential damages are more remote than direct damages and that, absent a waiver, consequential damages are only recoverable if they’re reasonably foreseeable at the time of contracting. Courts have struggled defining the line between direct and consequential damages. Contractual waivers of consequential damages typically list examples of consequential damages, without defining consequential or direct damages. The lack of a universally accepted line between direct and consequential damages can result in courts differing in their application of waivers of consequential damages. Some courts and practitioners have set the line at whether a cost was necessarily incurred to complete the required performance as a result of a breach of contract (direct damage) vs loss of a reasonably foreseeable collateral benefit as a result of a breach of contract (consequential damage). Do you have a better definition? #constructionlaw #construction #aba #constructioncontract

🚧 Insights on Construction Delay Claims 🚧 A recent Ontario Superior Court of Justice decision in Walsh Construction v. Toronto Transit Commission et al. sheds light on critical aspects of construction delay claims. This insightful article by Clark Wilson LLP discusses: 1️⃣ The admissibility and value of expert evidence in assessing compensable delays. 2️⃣ When subcontractor flow-through claims may become untenable. Explore these important developments in Kim Do’s article: https://lnkd.in/gC8rQMeC At JTE Claims Consultants Ltd., we specialize in construction claims, delay analysis, and dispute resolution, helping clients prevent and resolve conflicts in complex projects. Learn more about our services here: https://lnkd.in/gJW8uR4 #ConstructionDelayClaims #ConstructionClaims #DelayClaims #ConstructionAdvisory #JTEClaims

We have recently been asked by an existing client to provide advice on whether they are meeting the requirements of the Construction Contracts Act 2002 in relation to how retention money is being withheld. By way of a reminder, on 5 October 2023, the Construction Contracts (Retention Money) Amendment Act 2023 came into force. This introduced changes to the Act’s retention regime. All commercial construction contracts entered into after 5 October 2023 and all current contracts renewed after this date are subject to the amendments. In this article we summarise the key requirements and what you need to be aware of to ensure you are compliant. You can read the article by clicking this link: https://zurl.co/Gh14 Stuart Robertson FAMINZ (Arb) | Victoria Bortsova

What are not Construction Operations? And, severability of Adjudicator's Decisions. Cleveland Bridge (UK) Ltd v Whessoe-Volker Stevin Joint Venture What are Construction Operations and what are not? When can an Adjudicator's Decision be severed and when can it not? Case Summary and full judgment attached. You're very welcome! 🤓 "Summary 125. For the reasons set out above: (1) The Sub-Contract between Cleveland Bridge and the Joint Venture consisted in part of construction operations within section 105(1) of the Act and in part in operations which were not construction operations by reason of section 105(2)(c)(ii). (2) The operations which are not construction operations pursuant to section 105(2)(c)(ii) are the operations which consist of the erection of the steelwork to the piperacks and pipebridges and not all the operations which formed part of the Services in relation to that steelwork. (3) The Decision by the Adjudicator related to a dispute part of which was within her jurisdiction and part of which was outside her jurisdiction. In those circumstances her Decision was not a valid decision and cannot be enforced. (4) Because her Decision was on a single dispute, the agreement of the parties (under the implied term in paragraph 23(2) of Part I of the Scheme) to comply with a decision until the dispute is finally determined does not apply to the Adjudicator’s Decision. (5) The parties only agreed to valid decisions being binding and did not agree that an adjudicator’s findings on issues leading up to that binding decision are themselves individually binding and enforceable."