Plan showing that the sandbank was 6ft wide and was not incorporated in the contract and was not referred to expressly or widely Sandbank was 12ft wall and Randwick Municipal sued Walker for of the works’ ‘whole Builder was stuck with extra cost of wall What if the plan had been incorporated into the Contract? Courts rarely conclude that the is defined exclusively in the technical contract documents. Reality is that this is uncommon. Williams v Fitzmaurice Specification didn’t refer to the floors of the house Mistake in the plans builder said that floors were extra – Court: Floors were in the contract and the of the ‘inferred’ ‘whole material mentioned or otherwise’ Courts will look for work that is indispensably necessary to achieve the contract result Dorter & Sharkey Lump sum contracts lump sum price specified in the documents work described here and shown in the Drawings, including ‘all but not limited to ...’ Highly relevant in & construct’ contracts because contractor ‘design undertakes to produce a building that is fit for purpose for purpose in every possible way’ ‘Fit Brief of requirements typically outlines what is required by principal & construct’ all risk is held with the builder ‘Design – AS 4300-1995 Design & Construct project – Builder is to do both design & construct Greater risk about variation in design ... produce the Design Documents to accord with the Principals ‘shall Project Requirements ...’ ... complete the work under the Contract in accordance with the ‘shall Design Documents so that the Works, when completed, shall be fit for the intended purpose’ The Power to Vary All standard from building contracts contain a power to vary the work Beware the contract that does not Standard form contracts normally give wide power Risk of no power to vary > power to vary since then no room to move Need a pricing control mechanism to determine what price is ‘reasonable’ AS2124 Clause 40 – [40.1] Wide scoping power – Contractor not vary the work under the Contract except as directed by the Superintendent Import aspect as cant rack up costs unless instructed Usually variations directed by Superintendent on behalf of Principal
Plan showing that the sandbank was 6ft wide and was not incorporated in the contract and was not referred to expressly or widely Sandbank was 12ft wall and Randwick Municipal sued Walker for ‘whole of the works’ Builder was stuck with extra cost of wall What if the plan had been incorporated into the Contract? Courts rarely conclude that the is defined exclusively in the technical contract documents. Reality is that this is uncommon. Williams v Fitzmaurice Specification didn’t refer to the floors of the house Mistake in the plans – builder said that floors were extra Court: Floors were ‘inferred’ in the contract and the ‘whole of the material mentioned or otherwise’ Courts will look for work that is indispensably necessary to achieve the contract result Dorter & Sharkey Lump sum contracts lump sum price specified in the documents ‘all work described here and shown in the Drawings, including but not limited to ...’ Highly relevant in ‘design & construct’ contracts because contractor undertakes to produce a building that is fit for purpose ‘Fit for purpose in every possible way’ Brief of requirements typically outlines what is required by principal ‘Design & construct’ – all risk is held with the builder AS 4300-1995 Design & Construct project – Builder is to do both design & construct Greater risk about variation in design ‘shall ... produce the Design Documents to accord with the Principals Project Requirements ...’ ‘shall ... complete the work under the Contract in accordance with the Design Documents so that the Works, when completed, shall be fit for the intended purpose’ The Power to Vary All standard from building contracts contain a power to vary the work Beware the contract that does not Standard form contracts normally give wide power Risk of no power to vary > power to vary since then no room to move Need a pricing control mechanism to determine what price is ‘reasonable’ AS2124 – Clause 40 [40.1] – Wide scoping power Contractor not vary the work under the Contract except as directed by the Superintendent Import aspect as cant rack up costs unless instructed Usually variations directed by Superintendent on behalf of Principal
Construction_Law.docx