Payment Matters in Construction Projects

This subject has the following teaching availabilities in 2013:

Applicants without legal qualifications should note that subjects are offered in the discipline of law at an advanced graduate level. While every effort will be made to meet the needs of students trained in other fields, concessions will not be made in the general level of instruction or assessment. Most subjects assume the knowledge usually acquired in a degree in law (LLB, JD or equivalent). Applicants should note that admission to some subjects in the Melbourne Law Masters will be dependent upon the individual applicant’s educational background and professional experience.

The Melbourne Law Masters welcomes applications from students with disabilities. The inherent academic requirements for study in the Melbourne Law Masters are:

• The ability to attend a minimum of 75% of classes and actively engage in the analysis and critique of complex materials and debate;
• The ability to read, analyse and comprehend complex written legal materials and complex interdisciplinary materials;
• The ability to clearly and independently communicate in writing a knowledge and application of legal principles and interdisciplinary materials and to critically evaluate these;
• The ability to clearly and independently communicate orally a knowledge and application of legal principles and interdisciplinary materials and critically evaluate these;
• The ability to work independently and as a part of a group;
• The ability to present orally and in writing legal analysis to a professional standard.

Students who feel their disability will inhibit them from meeting these inherent academic requirements are encouraged to contact the Disability Liaison Unit: www.services.unimelb.edu.au/disability/

Payment has always been at the heart of construction contracting, and payment disputes have been – and remain – the mainstay of construction law case law. This subject aims to provide students with a detailed understanding of the contractual procedures for payment and associated issues such as set off. Its major focus is upon the ‘security of payment’ reforms of recent years. This state and territory-based legislation was designed to simplify the payment stream and disputation yet has, in practice, spawned hundreds of court cases, further complicating the contracting landscape for construction projects. The subject lecturers are based in the two states that have been at the forefront of the reforms – Queensland and New South Wales – and are therefore well placed to guide students through this area of law.

Principal topics will include:

• Payment processes under construction contracts, including treatment under standard forms and the impact of the security of payment legislation enacted in various jurisdictions
• History and policy underpinnings of the security of payment legislation, including comparison of the regimes in Australia, the United Kingdom and New Zealand
• Processes to resolve payment disputes, including those under security of payment legislation (with detailed consideration of bases for judicial review of such processes)
• Associated issues, including set off, securing payment to workers and subcontractors, and means of dealing with the consequences of late payment.

A student who has successfully completed this subject should:

• Understand how payment processes are dealt with in construction projects
• Have a detailed understanding of the law and industry practice relevant to these matters, especially payment claims procedures, security of payment, statutory adjudication processes and set off, along with how these are reflected in project contracts
• Be able to provide meaningful advice about the various options that are available to a range of industry participants in structuring and administering projects in relation to these matters, including the avoidance and resolution of disputes in relation to payment
• Be able to contribute meaningfully to ongoing industry debates about optimal ways of dealing with these matters at a policy level.

Take-home examination (100%) (4–7 October)
or
10,000 word research paper (100%) (13 November) on a topic approved by the subject coordinator

Core subject materials will be provided free of charge to all students. Some subjects require further texts to be purchased. Visit the Melbourne Law Masters website for more information about this subject.

This subject is not available as a breadth subject.