Construction and Property Law - PDF
Added on 2021-04-17
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Construction and PropertyLaw2TO: NSW Government FROM: (Student Name)DATE: 13 March, 2018SUBJECT: Possible liabilities arising from the case studyThis memorandum identifies the possible liabilities which could be raised for different partiesowing to the construction work which was recently undertaken. Through the analysis of the casestudy, it becomes clear that NSW Government would be able to claim liquidated andconsequential losses from AllTrack and Von Fimerick for the delay, inferior quality and wrongconstruction. Apart from this, AllTrack would be able to claim damages from Von Fimerick forthe delay caused in performing the work. For the physical injury and psychiatric illness caused toTom and Bob, NSW Government and Jean Holland would be liable. However, the damageswhich would be awarded to Tom by the court would be brought down owing to his contributorynegligence.NSW GovernmentHeadingContract Law
Construction and PropertyLaw3Issue Whether NSW Government can make AllTrack liable based on the contracts which were drawn,for the subpar quality of products used and for the delay in completion of project.RuleAs a construction contract is a contract, the non-performance of the terms of such contract canresult in the breaching party being made liable. Where the contractor fails in completing theirwork within the time which had been prescribed to them, liquidated damages are awarded to theaggrieved party. Where the contract provides the provisions for damages to be awarded be it interms of consequential losses or the liquidated damages, and where the parties to contract haveagreed to such clause, the provisions of such damages would be applicable, owing to the samebeing a term of the contract (Bailey and Bell, 2011). Also, where there are any defects or shortfalls in the construction work which has been carried,the defaulting party can be made liable for such faults. Here, the defaulting party includes bothcontractor and sub-contractor. Often such defects in materials and workmanship are discoveredvery late. Still, the contractor remains liable for such contraventions. Under the contract law, theplaintiff who had to bear the loss as a result of the contravention of contract, gets the entitlementto the extent of monetary damages, which would allow for the aggrieved party to be put in place,where they would have been, in case the contract had been performed, as was seen in TurnerCorporation Ltd (Receiver and Manager Appointed) v Austotel Pty Ltd (1994) 13 BCL 378(Bailey and Bell, 2011).
Construction and PropertyLaw4ApplicationOwing to the contract undertaken between AllTrack and NSW Government, NSW Governmentcan claim the costs of delay from AllTrack and also for the inferior tiles used and the platformsbeing 30 cm narrower. This is due to the clear specifications provided under the contract drawnbetween the two parties. As the case study is silent on a time delay clause being present in thecontract, it is assumed to be present. It was important for AllTrack to fulfil the contractualobligations; by not doing the same, they can be made liable in terms of liquidated damages andthe consequential loss. This would allow for NSW Government to be put in place where theywould have been, based on Turner Corporation Ltd (Receiver and Manager Appointed) vAustotel Pty Ltd, had the contract been properly performed. Conclusion Based on the discussion undertaken in the previous segment, it can be concluded that NSWGovernment would be able to claim liquidated and consequential losses from AllTrack for thedelay, inferior quality and wrong construction.AllTrackHeadingContract Law
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