Current Law Journal Content
Washington & Lee Law School
Current Law Journal Content
an index to legal periodicals
Building and Construction Law Journal
Volume 26, Number 5, October 2010
Construction contracts, including communication and conduct
Construction Contracts by Richard Wilmot-Smith QC
Contract: What contract?
This article considers a hypothetical scenario where two parties draw up a formal contract but fail to reach agreement on all of its terms. As such, the formal contract is never executed; however, the parties proceed with the project on the basis of the negotiated terms. This article considers whether the parties should be held to part or all of the terms of the unexecuted agreement or whether one party may be able to claim that no contract exists and that it should be entitled to payment on the basis of a quantum meruit.
The fabrication of unjust enrichment in Australian law: Pavey & Matthews v. Paul reassessed
Until 1987, the principle of unjust enrichment was foreign to Australian law. In Pavey & Matthews v. Paul, the High Court adopted the principle as the foundation for claims for quantum meruit in cases where a contract was unenforceable by reason of statute. In recent years the High Court has receded from the doctrine, but without actually departing from or expressly criticising Pavey & Matthews. This article argues that the reasoning in the primary judgment of Deane J in that case is seriously flawed and does not provide any proper explanation or justification for the importation of unjust enrichment into Australian law. With the benefit of 20 years hindsight, it has become apparent that unjust enrichment is not the handy, unifying concept which Deane J had hoped for. It is argued that this seminal case is based on seriously flawed reasoning and should no longer be regarded as sound. If unjust enrichment is to remain as a credible part of Australian common law, then the High Court will need to reassess the matter in the next appropriate case.
The unsuccessful tenderer — legal rights and remedies
David Levin QC
Major construction contracts are usually preceded by an invitation to tender and a tender offer. In some situations the invitation may amount to nothing more than an invitation to treat. However, the tenderer often makes a major commitment by investing time and resources in providing a tender offer in accordance with the invitation and frequently by paying a tender deposit. The relationship between the invitor issuing the invitation and the tenderers responding to it may be a contractual one with rights for each party and remedies for breach. Invitors frequently attempt to exclude liability for breach. If the tender is unsuccessful the disgruntled tenderer may want to recoup its lost expenditure, or claim damages for loss of a chance to obtain the contract from the invitor or the successful tenderer. Recent cases in Australia and overseas (particularly Canada) have examined the tender situation in some detail and will repay closer examination.
Bitannia Pty Ltd v. Parkline Constructions Pty Ltd
Queensland Bulk Water Supply Authority v. McDonald Keen Group Pty Ltd (in liq)