1. Explaining common legal terms
IPWEAQ Conference
Explaining common legal terms
Matt Bradbury Partner
Ren Niemann Partner
Michael Rochester
Partner
9 November 2016

2. “Weasel words”

3. Weasel words commonly encountered
ejusdem generis
mutatis mutandis
contra proferentum
nisi
noscitar expresso generalis
volenti non fit injuria
mens rea
inclusio unis est exclusio alterius

4. Force Majeure

5. Remember this….

6. Force Majeure
Definition…..
meaning "superior force", also known as cas fortuit (French) or casus fortuitus (Latin) "chance occurrence, unavoidable accident

7. Liquidated damages
and Penalties

8. Liquidated Damages and Penalties
AS Clause 34.7:
“If WUC does not reach practical completion by the date for practical completion, the Superintendent shall certify, as due and payable to the Principal, liquidated damages in Item 24 for every day after the date for practical completion to and including the earliest of the date of practical completion or termination of the Contract or the Principal taking WUC out of the hands of the Contractor.”

9. Superintendent

10. Who’d want to be a Superintendent?
Dual and conflicting role
Perhaps best called “the Referee”

11. Responsibilities of the Superintendent
Power to give directions
AS Clause 20
AS Clause 23
What is a direction?
Know the difference between “may” and “shall”

12. Good Faith

13. Good faith and the Superintendent
AS Clause 23:
“The Principal shall ensure that at all times there is a Superintendent and that in the exercise of the functions of the Superintendent under the Contract, the Superintendent acts honestly and fairly… ”
AS Clause 20:
“The Principal shall ensure that at all times there is a Superintendent, and that the Superintendent fulfils all aspects of the role and functions reasonably and in good faith”
AS 11000:
Has included good faith obligations on the parties

14. Conditions and warranties

15. Warranty
“The Contractor warrants that it will carry out and complete the Works in a good, proper and workmanlike manner”

16. Fit for purpose

17. Fit for purpose warranties
“The Contractor warrants that Works when completed will be fit for the Principal’s purposes, or such purposes as may be reasonably inferred”

18. Waiver and estoppel

19. Waiver and estoppel AS 4000-1997 Clause 43:
“Except as provided at law or in equity or elsewhere in the Contract, none of the provisions of the Contract shall be varied, waived, discharged or released, except with the prior written consent of the parties”
Conduct
time bars
standards expected
Deeds
need to be cautious

20. Entire agreement clause

21. Entire agreement clause
“The Contract contains the entire agreement between the parties and supersedes all previous agreements about its subject matter. Any statement, representation or promise made in any negotiation has no effect unless expressly incorporated in this Contract”
Tenders
Order of Precedence

22. Indemnity

23. a breach of this Agreement by the Contractor;
Indemnity
The Contractor indemnifies Council and its Personnel from and against all claims, costs, expenses, losses or damages of any nature whatsoever which Council may suffer or incur, arising from or in connection with:
a breach of this Agreement by the Contractor;
any negligent act or omission of the Contractor; and
personal injury, death or damage to property howsoever caused

24. Reasonable Endeavours
vs.
Best Endeavours

25. Contact Matt Bradbury Partner T +61 7 3233 8972E
Ren Niemann
Partner T E
Michael Rochester
Partner T E
Disclaimer: This presentation covers legal and technical issues in a general way.  It is not designed to express opinions on specific cases.  This presentation is intended for information purposes only and should not be regarded as legal advice.  Further advice should be obtained before taking action on any issue dealt with in this presentation.