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(Solution) Assignment on Construction Law

   

Added on  2021-05-30

14 Pages4122 Words72 Views
Construction Law

Table of ContentsPart A...............................................................................................................................................3Part B.............................................................................................................................................10References......................................................................................................................................12

Part A1. Legal basis for the claim by AccionaAcciona Infrastructure Australia is a Spanish sub-contractor entered a contract with Transport forNSW (TfNSW) to build Sydney light rail project. The company accused the NSW Governmentfor misleading and deceptive conduct. The company had demanded $1.2 billion claim for theexpenses and damages against the state government. The legal basis for the claim by Acciona is;There are certain elements that are required to be taken into consideration for a contract to comeinto existence. These are offer by one party, acceptance by another party in exchange forconsideration. In addition, the contracting parties must intend and possess the capacity toestablish legal relationship which does not include any illegal conduct[ CITATION law09 \l1033 ]. Acciona entered into a contract with TfNSW and lawsuit is related to the powerinfrastructure being supplied by Ausgrid. It has been alleged by the contractor that they weremade to believe that Ausgrid had evaluated and accepted the terms and conditions of the contractbut they had not. Furthermore, the contractor were not allowed to communicate with Ausgridregarding the terms and conditions of contract[ CITATION Jad185 \l 1033 ]. If Ausgrid wasinvolved in the contract, their consent must have been taken by the other two parties. The offermade by the TfNSW must have been accepted by Ausgrid. The formation of contract requires thepresence of all the parties to the contract. In this case, Ausgrid was not aware of the contractterms and clear communication was not established between Ausgrid and Acciona. So, theessentials of the contract do not suffice for the formation of contract. The factors influencing realand genuine consent or approval by the other party are mistake, misrepresentation, andunconscionability. Acciona entered into the contract misrepresented by the TfNSW as they didnot disclose that the contract was to construct the CBD light rail on a "false premise" as there

were underground electricity network possessed by Ausgrid and various other water and gascompanies. Furthermore, the factor of unconscionability as mentioned in case of CommercialBank of Australia Ltd v Amadio (1983) also applies in this case. It was held by the court that theplaintiff was aware that the defendants had English language issue and did not search forindependent advice and imposed a contract[ CITATION Jad181 \l 1033 ]. This was held to beunconscionable conduct taking into reflection the background of the defendant. TfNSW wasaware that the communication between Acciona and Ausgrid was not allowed and imposed thecontract on Acciona which is an unconscionable conduct on the part of TfNSW[ CITATIONJWC18 \l 1033 ].Parole Evidence Rule states that in case when the contract is not certain, external evidences suchas correspondence, site meetings, and other specifications can be taken into consideration. In thiscase, Acciona was not allowed to communicate with Ausgrid whether they are ready for thecontract or not and deceived by TfNSW that Ausgrid accepted the contract. Mentioning the nameof Ausgrid required their complete involvement and awareness about the contract or detailsrelated to meetings or any other kind of correspondence with them. In case of B and BConstructions (Aust) Pty Ltd v Brian A Cheeseman & Assoc Pty Ltd (1994), the Court of Appealin NSW considered the issue of ambiguity. The question raised by the decision is whether, if thewords and interpretations in the contract has a plain meaning free from ambiguity, evidences ofsurrounding circumstances is acceptable to demonstrate that the parties had intended a differentmeaning[ CITATION con12 \l 1033 ]. The court held that extrinsic evidence can clearly beallowed to resolve ambiguity if possible. Thus, there is requirement of clear ambiguity in orderto find an exception to the parole evidence rule.

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