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The latest issue of the Building and Construction Law Journal (Volume 40 Part 3) contains the following material:

EDITORIAL – General Editor: Michael Christie SC

BOOK REVIEW

Articles

LADs Making Mischief at Home and Abroad: Should the Penalties Doctrine Apply to Whether Low-Value Liquidated Damages Are an Exclusive Remedy for Delay? – Matthew Bell and Trevor Thomas

This article examines an under-considered aspect of the “mischief” which characterises the principles and practice of liquidated damages law in Australia and across the common law world. This is whether low-value liquidated damages – especially, those where the parties have specified a value of “nil” or “$1” – override the non-defaulting party’s right to recover general damages for its loss in breach of contract. The article regards the case law on this point – illustrated by the recent New South Wales Court of Appeal decision in Carbone v Fowler Homes Pty Ltd – as tending to promote uncertainty due to its roots in contract interpretation principles. As a way of alleviating this uncertainty, the article poses the question: if the doctrine of penalties can intervene when it comes to a maximum rate of liquidated damages, why should it not also act to regulate a minimum rate of liquidated damages?

Pafburn and Beyond: (Almost) Half a Decade of the Design and Building Practitioners Act 2020 (NSW) – Declan Byrne and Ajay Sivanathan

Five years after the enactment of the Design and Building Practitioners Act 2020 (NSW), defect claims based on breach of the duty of care set out in s 37(1) have become ubiquitous in the courts of New South Wales. With an increasing number of significant decisions being handed down, including the High Court’s recent decision Pafburn Pty Ltd v The Owners – Strata Plan No 84674, the Courts are grappling with several complex issues associated with this legislation.

REPORTS

For the PDF version of the table of contents, click here: New Westlaw Australia – BCL Vol 40 No 3 Contents.

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