Construction Contract Law

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Construction Contract Law
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Contents
1) Property Law...........................................................................................................................................1
The law of adverse possession.................................................................................................................1
Estates and interest in land (legal only not equitable ownership)............................................................3
The need or reasons to lodge a caveat......................................................................................................4
2) Most commercial and domestic construction contracts make use of Standard form contracts.............5
Discuss the latent site condition clauses from the viewpoint of the principal. (4.5 marks)......................5
Abigroup Contractors Pty Ltd v Sydney Catchment Authority (No 3) [2006] NSWCA 282...............6
Discuss the latent site clauses from the viewpoint of the constructor/builder. (4.5. Marks).....................6
3) Discussion of implied terms in construction contracts...........................................................................7
Terms implied by statute.........................................................................................................................8
Probuild Constructions (Aus.) Pty Ltd v DDI Group Pty Ltd [2017] NSWCA 151.................................9

Terms implied by the common law.........................................................................................................9
ACT Cross Country Club Inc. v Cundy [2010] FCA 782......................................................................10
Terms implied by construction custom and usage.................................................................................10
Con-Stan Industries v Norwich Winterthur Insurance (Aust) Ltd...........................................................11
4) Discussion of the advantages and disadvantages of litigation..............................................................11
Advantages of the litigation process......................................................................................................12
Disadvantages of the litigation process..................................................................................................13
Litigation steps or process.....................................................................................................................14
Reference:.................................................................................................................................................15
1) Property Law
The law of adverse possession
Adverse possession is a right of the title of ownership over the land which can be claimed if any
property or land has been unoccupied for a long time and any person occupied it. Possession
over the land or the property is not merely a corporeal activity. The person who was holding the
possession over the land must have the intention of acquiring the title and possession. The Action
of the possessor refers to the intention of the party who is in the possession over the property. It
was an additional obligation that possession be limited, with the intention to entitlement the title
of the land meant that the applicant held in reserve the capability and the right to eliminate other
parties from the property. (Burns, Fiona, 2011)
There are some rules and regulation are made by the law under section 38 of Limitation Act,
1969 for acquiring the unoccupied land if that person met with all rules and regulation, in that
case, the title of a property is transferred to the person who occupied a long time unoccupied land

or property. The law of adverse possession in Australia was adopted from the idea of British
common law. Acquiring the ownership of the land by adverse possession instead of registration
is the exception of the Torrens title indefeasibility (Esmaeili, 2016).
For acquiring the title or ownership of a land in adverse possession, another party has to prove
that he has a continuous possession over the land for a 12years and the possession was
uninterrupted and exclusive possession and the possession over the land was not with the
permission of original owner or consent of the real owner. In South Australia and Victoria time
period for the adverse possession is 15 years. When adverse possession is proved by the party, in
that case, the title of the property will be transferred to another party and the title of property of
the real owner will be stub out. And for acquiring the title on the unoccupied property of Crown,
another party has to serve 30 years possession over the property which is mentioned under the
Limitation Act, 2005.
In the Case of McFarland vs. Gertos (2018) NSWSC 1629, another party was Mr Gertos. He
has the possession over the land since 1998 and the possession was exclusive and uninterrupted.
And the possession was not on the consent of the real owner. The case of Mr Gertos fall in the
category of adverse possession and the title of a property is transferred to Mr Gertos. Adverse
possession is the claim of the person who has possession over the unoccupied land and the
limitation period is in the favour of that person. And the burden of proof is on the hand of the
original owner for proving that there was no uninterrupted possession over the property or the
possession over the land is with the consent of the original proprietor.
For claiming the adverse possession, any person who wants to prove definite possession over the
unoccupied property, the person who claimed for adverse possession has to prove that possession
over property must be vulnerable, nonviolent and not by strength. It must not be with the
permission of the proprietor. It means a noticeable and successful territory or switch by a person
who proposes to act similar a proprietor (Hepburn, 2013).

Estates and interest in land (legal only not equitable ownership).
Estate and interest in land is fundamentally the legal right of a person over land and property.
Laws regarding the land and property are mentioned in the Land Registration Act 2002.
Registration of land is very important for the ownership of the person over land and property
except for those lands and property which are not sold or transferred for a long time. Amendment
in the land registration act 2002 Act clearly stated that the rights, duties and interest of an
individual over land will be affected if the title or ownership of the land or property not
registered by the owner. Legal interest is a comprehensive, perpetual and unconditional legal
right of the person who has registered his ownership over land or property. As per the Land
registration act 2002, it is obligatory for the person who has a legal right over land or property to
serve a notice regarding the interest to the registered holder of the land act. The purpose of a
notice is to securing the legal interest of the owner and registers it in the notice of every
individual (Goymour et al. 2018).
The following legal types also create a legal interest which essential be documented in ordinance
to stimulate in law:
 A rent-charge that is the payment of charged land and yearly or periodic amount
to a rent- charge proprietor but in this charge, rent amount of the leased property
does not include.
 A charge by a method of lawful debt.
 A right of entrance exercisable over or regarding a legal duration of years
unqualified or as an addition to a legal rent charge.
For the protection of legal interest over land or property, Registration of title over land or
property is very important.
The need or reasons to lodge a caveat.