Home / Practice areas / Construction Law
The chronology decides the case.
Security of payment, adjudication, defects, variations and contract review. We act for builders, subcontractors, developers and owners across NSW.
Construction is the practice area Nightingale Lawyers is best known for. Hanna has acted for head contractors, subcontractors, developers, owners and owners corporations, and he has spent enough time in the Security of Payment regime to know that most of it is won or lost on dates rather than merit.
Security of payment
The Building and Construction Industry Security of Payment Act 1999 (NSW) is designed to keep cash moving down the contractual chain. It is fast, it is technical, and it punishes the party that does not diarise.
- Payment claims. Served by the person who carried out the work, on or after the reference date.
- Payment schedules. The respondent generally has ten business days to serve one, or the time in the contract if shorter. Fail to serve, and you become liable for the full claimed amount and lose the right to raise reasons for withholding at adjudication.
- Adjudication. An adjudicator is appointed and delivers a determination on a compressed timetable. It is an interim answer, not a final one, but it is enforceable as a judgment debt.
- Restrictions. The Act does not apply to a residential building contract where the owner resides in or proposes to reside in the premises.
If a payment claim has landed on your desk, the response window is measured in business days. Call us before it closes rather than after.
Home building and defects
The Home Building Act 1989 (NSW) implies statutory warranties into residential building work. They cannot be contracted out of. The warranty period is six years for a major defect and two years otherwise, running from completion of the work.
We act in defect claims in the NSW Civil and Administrative Tribunal and in the courts, for owners chasing rectification and for builders defending claims that have grown well past the actual problem. The Design and Building Practitioners Act 2020 (NSW) has also given owners a statutory duty of care that reaches back and sideways to consultants and subcontractors, and it changes who is worth suing.
Contracts, before they become disputes
The cheapest construction advice is the advice you take before signing. We review, amend and draft:
- Standard form contracts including AS 4000, AS 2124, AS 4902 and the HIA and Master Builders suites
- Subcontract agreements and back to back arrangements
- Variation, extension of time and delay damages regimes
- Liquidated damages, security, retention and bank guarantee provisions
- Defects liability periods and practical completion mechanics
When it has already gone wrong
Typical matters we run: unpaid progress claims and retention; disputed variations and directions; extension of time claims and the notice provisions that defeat them; defective and incomplete work; wrongful calls on security; termination and repudiation; and disputes between principals and subcontractors where the money has stopped moving somewhere in the middle.
The first thing we do is read the contract and build the chronology. In construction, the chronology usually decides the case.
Common questions
Construction Law, answered.
How long do I have to respond to a payment claim under the Security of Payment Act?
Under the Building and Construction Industry Security of Payment Act 1999 (NSW) a respondent must serve a payment schedule within ten business days of the payment claim, or within the shorter period the construction contract provides. If no schedule is served, the respondent becomes liable for the full claimed amount and cannot raise reasons for withholding payment at adjudication.
Does the Security of Payment Act apply to my home renovation?
Generally not. The Act excludes residential building contracts where the owner resides in, or proposes to reside in, the premises. Those disputes are usually run under the Home Building Act 1989 in NCAT or the courts instead.
How long do statutory warranties last on residential building work?
Under the Home Building Act 1989 (NSW), the statutory warranty period is six years for a major defect and two years for any other breach, running from the completion of the work. Whether a defect is major is frequently the whole argument.
Can I sue a builder who has gone into liquidation?
Suing the company itself is often pointless once it is in liquidation. The better questions are whether there is home building compensation cover, whether the Design and Building Practitioners Act 2020 gives you a claim against individual practitioners, consultants or subcontractors, and whether directors have exposure. We look at those before anyone files anything.
Should I have a lawyer review my building contract before I sign it?
Yes, and it is the cheapest money you will spend on the project. Most construction disputes we run turn on notice provisions, variation clauses and time bars that were agreed to without being read.
Whatever it is, we can figure it out together.
A first conversation costs you nothing. You will speak with Hanna, not a call centre, and you will leave knowing what your options are and roughly what they cost.