Uher Thomas E., Davenport Philip. Fundamentals Of Building Contract Management

2nd edition. — UNSW Press, 2009. — 438 p.Stripping contracts of their legal mystique and jargon, this reference offers essential information on the entire contract administration process. Divided into three sections, this easy-to-use guide covers potential issues from project inception to finish and includes sample contracts as well as an overview of the most recent statutory legislation. Comprehensive and practical, this handbook is an invaluable tool for both practitioners in the construction industry and students across Australia.Construction contracting has its own terminology, its own doctrines (legal and otherwise) and its own body of legislation. It is different. That is why this book was written. The book is intended not only for those new to the construction industry but also for those in the industry who want to know how and why it is different, and particularly those who have ambition to improve it, or at least avoid the pitfalls.
This book is intended to fill a gap in the literature on construction contracting. It is not a legal casebook, although many cases are referred to for illustration. It is not intended as a definitive statement of the law, although it does attempt to explain relevant law in simple terms. Neither is it intended to provide guidance to the reader on solving any particular problem. That is for a specialist. Every particular problem turns on a unique set of facts.
The book may assist the reader to be better informed about when specialist advice is necessary and better able to understand that advice. Most importantly, it is intended as a guide to avoiding situations where problems arise and specialist advice is required.
Contracts are vital to the construction delivery process. Design and construction are carried out under contracts. A contractor’s only obligation to build is created by a contract. Usually, a contractor’s only right to payment is covered by the contract. The principal’s right to compensation for defects is created by a contract.
Contracts direct and govern every move.
In any major project there are thousands of individual contracts.
Some are contracts of employment, some are for supply of services by public utilities, some are with insurers. This book is concerned with contracts that the principal makes for the provision of design services and construction work, the management of those services and that work, and the chain of subcontracts made down the line.
There is a confusing array of contracts and much competition between proponents of various forms of contract. The purpose of this book is to strip the legal mystique and mumbo jumbo from contracts and expose the basic logic. The book is directed to contractors, principals, project managers, architects, engineers, lawyers, students and others involved in the construction industry.Examples included in this book are not meant to be recommended precedents but examples of what is actually used in the industry. There is no best way of contracting. It is a matter of ‘horses for courses’. The book should help the reader to find the best contracts for a particular project and having chosen them, to administer them efficiently.
After some background on what contracts are, Part I looks at the options for project delivery, the various types of contracts available, and the pros and cons of the various types.
Part II looks at the administration of construction contracts. It covers the basic principles applicable to all construction contracts.
Part III deals with the aftermath, claims, defects and disputes. It also deals with remedies outside the contract, for example those based on unjust enrichment. Most disputes are founded on ignorance—the ignorance of the claimant or the ignorance of the party resisting the claim or the ignorance of those advising them.
The ignorance may be of the facts, the law or the most efficient means of resolving disputes. Part III is directed to dispelling some of the ignorance. Included in Part III is a new chapter on security of payment in NSW. Similar legislative schemes operating in other States of Australia, and in the UK, NZ and Singapore are reviewed.