Building Disputes, Workers Liens and Arbitration
Author:
Andersons Solicitors
Publish Date: December 1, 2008
As a primary aspect of Andersons' solutions in the area of property, planning and construction law, our team provides a full service legal practice. We can participate from the earliest project planning phases by providing planning and environmental advice and assisting in tender drafting and evaluation, right through to undertaking contract negotiations. Our construction law services include drafting and advising on contract administration, dispute avoidance and the resolution of disputes.
At Andersons, we operate on the belief that the best dispute is the dispute which we have helped you to avoid. The potential for dispute can be minimised by proper pre contract preparation, such as by ensuring that specifications and contracts are clear and fully considered and that both parties understand their roles and responsibilities from the outset. Disputes can be avoided by good communication between the parties throughout the construction process.
However, some disputes will still occur - despite the best precautions.
There are a number of methods to deal with building disputes. These include litigation, executive negotiation, expert determination, conciliation and arbitration. Which method is right for any particular dispute depends on a range of factors, including any contractual provisions that specify which dispute resolution methodology is to be used. Further matters to be considered are the issues involved in the dispute, the attitudes of the parties and the relative strength of the respective parties' positions.
It is important to anticipate the possibility of disputes when negotiating the terms of a construction contract and to build in the appropriate dispute resolution clauses from the outset.
Building disputes often relate to factual or technical matters and expert determination can be usefully employed to resolve such disputes. Arbitration is suited to more complex disputes, which may involve interpretation of the provisions of the building contract or assessments of the conduct of the parties.
Choosing the wrong dispute resolution methodology can be expensive. Perhaps more importantly, it can tie up important resources in unproductive activity. Andersons have experience in using all methods of dispute resolution in a range of circumstances and can help you make the right choices.
Another aspect of building disputes relates to liens under the Worker's Liens Act. In any case where a contractor is unpaid, the contractor may use the provisions of that Act to enforce a statutory lien over the land for the unpaid contract price. Such a lien must be registered against the relevant land title within 28 days of the amount becoming payable, but will lapse unless action is taken to enforce it within 14 days after it is registered.
A lien operates as a caveat on a land title and no transaction can be registered in relation to the land unless it is expressed to be subject to the lien. A lien is therefore a powerful tool in a dispute about whether an amount is or is not payable to a contractor, as the lien effectively secures the property and prevents its sale until the dispute is resolved.
If the amount secured by the lien is found to be due, either the debtor must pay the money or the lien is enforced by the court by issuing a warrant for the sale of the land that the lien relates to.
If you want to develop a building and construction project to minimise the potential for dispute, or if you need advice about an existing dispute, please call 1800 653 655 to arrange an initial consultation with one of Andersons' expert building and construction lawyers.
