Australian Construction Law Newsletter
BUILDING AND CONSTRUCTION CONTRACTS
IN AUSTRALIA LAW AND PRACTICE,
Dorter and Sharkey, Law Book Co, Sydney, 1990.
- Review by John Tyrril
This is the Second Edition of the Law Book Co's well
known reference by John Dorter and John Sharkey on
building and construction law and the standard Australian
building and construction contracts. Messrs Dorter .and
Sharkey respectively are partners with Allen Allen +
Hemsley, Solicitors, Sydney and Sly + Weigall, Solicitors,
Melbourne. This is a formidable author partnership also
responsible for the foremost reference work: on Commer-
cial Arbitration in Australia; viz Sharkey and Dorter,
Commercial Arbitration, Law Book Co, Sydney, 1986.
Building And Construction Contracts In Australia
Law And Practice Second Edition is an important refer-
ence work for all legal practitioners and essential for
building and construction law specialists. It will also find
a home on the shelves of those responsible for the initia-
tion, design and delivery of projects - the clients, archi-
tects, engineers, project managers, quantity surveyors,
contractors, subcontractors and suppliers. Perhaps it is an
unfortunate fact of the construction industry that it is now
necessary to develop a degree of"literacy" in building and
construction law for the sake ofrisk management, in order
to minimise exposure and to survive in business. The
industry will find this publication a valuable resource
which will assist in risk management.
The Second Edition is a departure from the format of
the First Edition in that it has been published in loose leaf
format. This is an intelligent response to the conflict
between the lead time for the preparation and publication
of a discrete book in bound form and the development of
new contracts and the increasing volume of building and
construction case law, which quickly render a reference
out of date. Indeed, in the Preface to the Second Edition,
the authors state:
"Although much has happened in the construction
industry in the intervening years, we stand by our
stated aim in the rust edition, viz to help parties to
construction contracts, their consultants and their
advisers.
Both standard construction contract documenta-
tion and its related, special documentation have
changed considerably in the intervening years.
AS2124 is almost radical in a number of aspects.
Nonetheless, its use in the construction industry has
increased, as have JCC A and JCC B over E5b.
Almost overwhelming has been the growth of case
law provided by the development of specialist
building and· engineering courts within the Su-
preme Courts of several States.
Hopefully this second edition will bring together
many of such matters for the benefit of those in the
industry."
Issue #13 5
The loose leaf format will enable the authors and
publishers to respond to developments such as the forth-
coming revisions to the JCC Contract by offering purchas-
ers revisions and supplements, without the process, delays,
cost and redundancy involved in publishing a complete
new edition. Thus, purchasers will be able to keep up to
date at reasonable cost. The publishers expect to make
available two or three updates each year to be charged for
on .an issue basis, rather than as a subscription service.
Given the circumstances ofchange and developmentin the
industry, it would seem that the authors and publishers
have arrived at the the most appropriate format for this
reference work.
The reference is divided into tabbed sections. Thus, it
is possible to tum up a particular section in a moment
without need to resort to the index, which should please
both the lazy amongst us and the project managers and
engineers who strive for time efficiency.
Further assistance is provided to users by the inclusion
of Tables of Contents, Cases, Statutes, References To The
Contracts, which lists the provisions of the standard con-
tracts referred to and commented upon in the text, and an
Index. The text also contains many sample notices, which
will prove of practical assistance to those administering
contracts. Appendices include the full text ofthe NPWC3,
JCC and E5b contracts and the RAIA Client!Architect
Agreement. Presumably for copyright reasons, the full
text of the Standards Australia contracts AS2124 and
AS2545 are not included; this is not a failing, as most
people involved in the industry will have reference copies
ofthese contracts on their shelves. Indeed, the Appendices
will be redundant for many purchasers who will prefer to
refer to the originals.
Each theme and contract quotation now has a reference
number, e.g. [5.270]. The first number refers to the
chapter, whilst the second is sequential. The Tables and
the Index refer only to reference numbers, whilst the Table
ofContents refers to both reference and page numbers. No
doubt, this system will assist the publishers in issuing
updates and in the provision of additional material. Impor-
tantly, after looking up a Table or the Index, one can now
find the correct location for a particular reference in a few
moments. One would normally expect this sort of logic
from engineers or project managers, rather than from
lawyers and legal publishers.
Although the comment may reflect upon the reviewer
rather than on the First Edition, the inclusion of extensive
quotations from the standard contracts in the First Edition
had the effect of disrupting and disjointing the text, par-
ticularly since no particular distinction was made in either
typestyle or font size. Furthermore, the text quoted was not
always analysed or commented upon. At times, the re-
viewer found the First Edition stronger on legal principles
than on detail relevant to a particular problem or contract
provision.
The Second Edition does not suffer such problems.
Quoted text is clearly distinguished by typestyle and font
size. Quotations develop and illustrate themes. Quoted
text is also commented upon in appropriate detail.
Compared with the FirstEdition, the Second Edition is
Australian Construction Law Newsletter
far more complete. As a minor example, one can find no
reference in the First Edition's Index to programme,
whereas the Second Edition reveals that the book contains
material on both programme and on programmesmanship.
There have been many developments over the last ten
years within the industry and in perceptions and thinking,
which are adequately reflected by the authors to the enrich-
ment ofthis edition. The Second Edition is a real resource
with room for further growth and development over time.
The only criticism one can level at the Second Edition
from the usage necessary to carry out this review is that the
Index is not as complete as it might be; it is suggested that
the Index should contain more cross referencing. For
example, one could find no Index reference to the Hudson
and Eichlay formulae for the calculation of head office
overheads, despite a search under Hudson, Eichlay, delay
costs and overheads. These formulae and comment upon
their use are provided under the heading "Proof' in the
Chapter dealing with Claims and Disputes - rather than in
the section dealing with delay costs where one expected to
find them. The formulae were difficult to find. It would
assist if these formulae were either contained or cross
referenced also in the delay cost section. At least, the
formulae should be referred to separately in the Index to
assist users. One wonders how many other such instances
of difficulty in locating material might arise in practice.
However, one should not make too much of this
criticism, as it is a relatively minor matter which could
easily be rectified by the publishers.
The Second Edition is a substantial development and
improvement over the First Edition in content, format,
layout, user-friendliness and in importance to the industry.
The authors are to be congratulated for the quality of their
efforts.
Given the currency of this reference (Brooking On
Building Contracts Second Edition, Bennett, Butter-
worths, despite its quality, is now ten years old and
unfortunately somewhat out of date) and the fact that it has
been purpose written for the Australian situation covering
Australian case law and contracts, unlike the English
references Hudson, Keating and Abrahamson, this publi-
cation is now the major legal reference work for the
building and construction industry in this country.
Through updates, the authors and publishers will no doubt
ensure that it so remains.
Although some may consider this publication expen-
sive at $240.00, it is not so when one considers:
the time, experience and expertise involved in its
preparation;
the cost of training courses and seminars in the
industry - this reference may prove of more
lasting value than some courses;
the cost benefit of the assistance available
through intelligent use of this reference in con-
tract formation, contract administration and in
dealing with claims and disputes.
Ifone had no more than $240.00 to invest in education
to improve the quality of contract formation, contract
administration and claims management, one could do far
worse than to put it all into this resource.
Issue #13 6
NSW ROYAL COMMISSION INTO THE
BUILDING INDUSTRY
The New South Wales Government has announced a
Royal Commission into the building and construction
industry. Whilst some may have reason for concern at
this development and others may regard it cynically as
potentially no more than an "union bashing" exercise,
the Commission represents a positive opportunity for
the industry to address deep seated problems.
The terms of reference for the Royal Commission are
as follows:
1. The nature, extent and effects ofpractices and
conduct in or in relation to the building indus-
try which may significantly affect efficiency
and productivity within that industry.
2. The nature, extent and effects ofillegal activi-
ties that occur in, or in relation to, the building
industry in New South Wales including (but
not limited to):
(a) intimidation and violence;
(b) secret commissions;
(c) extortion; and
(d) other corrupt conduct.
3. Whether, in view of the findings in relation to
the matters set out in paragraphs 1 and 2, there
are any measures (including legislative and
administrative changes) which should be
made to increase productivity or efficiency
within the building industry or to deter illegal
activities in, or in relation to, that industry.
The Royal Commission is also to have regard to the
following guidelines:
1. The inquiry is to be conducted with as little
formality as possible, with a view to making
the inquiry as economical as possible.
2. Regard is to be given to the desirability of
taking such steps, including the taking of
evidence or hearing of submissions in private,
as may be considered necessary to protect a
person's safety.