UK Adjdudiators Newsletter June 2019

WWW.UKADJUDICATORS.CO.UK
JUNE 2019 NEWSLETTER
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EDITORS’ COMMENTS
Our third event of the year, a hosted table at
the 2019 SCL Manchester lunch takes place on
the 21 June 2019, all spaces have been taken
but if you are attending do come and say
hello.
The 2019 London Adjudication and
Arbitration Conference is taking place at 12
Bloomsbury Square, London on the 22 August
2019. Tickets are on sale and UK Adjudicator
panellists will be able to purchase discounted
tickets. Supporting organisations for the event
are being sought and currently we have
speakers from Keating, Blake Morgan,
Augusta Ventures, Ankura, Addleshaw
Goddard, Clyde & Co, Corbett, Sense Studio,
Aquila Forensics and Fenwick Elliot confirmed
with numerous others expressing an interest
to take part from in the UK and overseas.
Sponsorship and advertising opportunities are
highlighted in the accompanying brochure.
We hope to hold further events in Bristol,
Birmingham, Manchester and Leeds, if you
are interested in speaking, hosting or acting as
a sponsor please does get in touch.
We have taken a table at the SCL South West
lunch on the 11 October 2019 at the Bristol
Marriott Royal Hotel, College Green, Bristol
BS1 5TA. If you would like to attend please
email Sean Gibbs to express your interest.
The Adjudication Society conference takes
place on Thursday, 7 November at the Hilton
London Metropole, 225 Edgware Rd,
Paddington, and London W21JU. If you would
like to join others for dinner at a venue
nearby afterwards please express your
interest so that we can gauge numbers.
If you have any suggestions on ways we can
improve our services, processes or would like
to assist in promoting UK Adjudicators please
do get in touch.
As always we encourage you to submit
articles, case notes and other matters related
to adjudication and dispute boards for
publication in our newsletter.
Sean Gibbs is a director with Hanscomb
lntercontinental and is available to sit as an
arbitrator, adjudicator, mediator, quantum
expert and dispute board member.
sean.gibbs@hanscombintercontinental.co.uk

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SOPA & INSOLVENCY IN NEW
SOUTH WALES
The recent case of Seymour Whyte
Constructions Pty Ltd v Ostwald Bros Pty Ltd (In
Liquidation) [2019] NSWCA 11 confirms that a
corporation being wound up under insolvency
proceedings can use the Security of Payment
Act to pursue its claim for the Scheduled
Amount to judgment.
The position in NSW will be altered upon
commencement of the Building and
Construction Industry Security of Payment
Amendment Act 2018 (NSW) (Amendment
Act). A new section 32B states that, "A
corporation in liquidation cannot serve a
payment claim on a person under this Part or
take action under this Part to enforce a
payment claim (including by making an
application for adjudication of the claim) or an
adjudication determination."
The amended Act, does not address the
position with respect to individuals in
bankruptcy, as such individuals may be able to
continue relying on Seymour and the line of
authorities behind it to serve and enforce
payment claims made under SOPA.
The court chose not to follow the position in
Victorian Court of Appeal in Façade Treatment
Engineering Pty Ltd (in liq) v Brookfield
Multiplex Constructions Pty Ltd [2016] VSCA
247; 337 ALR 452.
As such the position in New South Wales and
Victoria is different currently but will be more
similar when the Building and Construction
Industry Security of Payment Amendment Act
2018 (NSW) (Amendment Act) comes into
force.
https://www.caselaw.nsw.gov.au/decision/5c
5cd641e4b0196eea4041a8
UK LOW VALUE ADJUDICATION
SCHEMES
The CIC and TECSA both have draft low value
adjudication schemes which will be rolled out
in 2019. It appears that they will still charge
their nomination fee of £325.00 but that costs
will be capped in a series of bands. TECSA
proposed bands are:
Claim Value Fee Cap
Up to £10,000 £2,000
£10,001 to
£25,000
£2,500
£25,001 to
£50,000
£3,500
£50,001 to
£75,000
£4,500
£75,001 to
£100,000
£5,000

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The CIC’s proposed claim value and fee cap
are as follows:
Claim Value Adjudicator’s fee
Up to £10,000 Up to £2,000
£10,001 to
£25,000
Up to £3,500
£25,001 to
£50,000
Up to £6,000
Over £50,000 Negotiable
The RICS have indicated they will also set up a
low value scheme and have said the process
will be aimed at disputes where claims are for
less than £50,000, and the issues in dispute
are relatively uncomplicated.
UK Adjudicators will watch what the other
bodies do and then design a low value scheme
that actually delivers real benefit to the users.
The costs of the nomination process are not
recoverable so UK Adjudicators offers great
benefit to referring parties especially for
those embroiled in low value disputes, we are
closely monitoring what the others propose
so we can launch our own low value scheme
that will support the users and encourage the
use of adjudication.
COURT OF APPEAL GRANTS
PERMISSION FOR APPEAL IN CASE
OF HITACHI ZOSEN INOVA AG V
JOHN SISK & SON LTD
The Court of Appeal has accepted the appeal
from the decision of Mr Justice Stuart-Smith.
The central issue for determination at first
instance was whether the adjudicator in the
eighth adjudication arising out of the contract
between the parties had jurisdiction to decide
what sums were properly payable for
additional works that were carried out by the
Defendant ["Sisk"]. The Claimant ["Hitachi"]
said that the adjudicator had no jurisdiction
because the same or substantially the same
question had already been decided by an
earlier adjudication, which was the second.
The Judge said ‘In my judgment the dispute
referred in the eighth adjudication was also
not "substantially the same" as the dispute
decided in the second. It is important to bear
in mind that the comparison to be made is
between what was referred in the eighth
adjudication and what was decided in the
second. Once it is recognised that there was
no valuation decision at all in the second
adjudication, it becomes clear that, in the
matter of the value to be attributed to and
recovered for Event 1176, there is no overlap
at all. It is only if one compares what was
referred in each adjudication that a

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misleading and irrelevant similarity between
the two referred disputes appears. I recognise
and take into account the dicta of Dyson LJ in
Quietfield and Akenhead J in Carillion, but
neither laid down a hard-edged rule that
disputes should be regarded as being the
same or substantially the same if there was an
overlap of evidence. To the contrary, in
Quietfield (as in this case) the remedy
originally sought (there an extension of time)
was the same and there was an overlap of
evidence when compared with the substance
of the dispute that was referred in the later
adjudication’
Having found for Sisk at first instance we wait
to see if the Court of Appeal will agree with
the decision and reasoning of Mr Justice
Stuart-Smith.
Hitachi Zosen Inova AG v John Sisk & Son
Ltd [2019] EWHC 495 (TCC) (08 March
2019)
HOW LONG DO THE LIQUIDATED
DAMAGES CONTINUE?
The Court of Appeal has recently given an
important and wide-ranging judgment on the
application of liquidated damages in Triple
Point Technology, Inc. v PTT Public Company
Limited [2019] EWCA Civ 230.
The question at issue concerned the period
for which liquidated damages could be levied
in the event that a contractor or supplier
never achieves completion.
Background
Triple Point was a designer of software for
commodities trading. PTT carried out
commodities trading in oil, refined products
and petrochemicals. The parties entered into

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a contract on 31 January 2013 for the
provision of a commodities trading system.
The contract contained a liquidated damages
clause, Article 5.3, in the following terms:
“If CONTRACTOR fails to deliver work within
the time specified and the delay has not been
introduced by PTT, CONTRACTOR shall be
liable to pay the penalty at the rate of 0.1%
(zero point one percent) of undelivered work
per day of delay from the due date for delivery
up to the date PTT accepts such work,
provided, however, that if undelivered work
has to be used in combination with or as an
essential component for the work already
accepted by PTT, the penalty shall be
calculated in full on the cost of the
combination.”
Completion was to be by reference to two
“Phases”, each of which had a number of
stages. A percentage of the contract price was
expressly referable to those various stages.
Work proceeded slowly and the system did
not have the specified functionality.
Stages 1 and 2 of Phase 1 were completed
some 149 days late. Triple Point invoiced, and
PTT paid, for this work. Triple Point then
invoiced for other work which was not yet
completed, in reliance on calendar dates for
payment specified in order forms. PTT refused
to pay based on the failure to achieve the
milestones. Triple Point thereafter suspended
work in May 2014, and PTT accordingly
terminated the contract in February 2015 on
the basis of wrongful suspension.
Triple Point commenced High Court
proceedings for the sums it said were due.
PTT counterclaimed for damages for delay
and damages upon termination. Jefford J
dismissed the claim ([2017] EWHC 217) and
awarded PTT $4,497,278.40 on their
counterclaim. Of this sum, $3,459,278.40 was
liquidated damages for delay pursuant to
Article 5.3 of the contract.
(It would appear that the argument that
succeeded on appeal, namely that the
liquidated damages clause only applies when
work was completed and accepted, may not
have been raised before Jefford J: no
authorities were cited to the Judge on this
issue. Relevant authorities, including
Glanzstoff, were only provided to the Court of
Appeal at its request.)
The Appeal
A number of issues were raised on appeal. Of
particular interest, however, is the
consideration given to liquidated damages.
Triple Point argued that “Liquidated damages
for delay under Article 5 are irrecoverable”.
(a) Applying Cavendish v Makdessi [2016] AC
1172, the Court rejected at [71] a suggestion
that the clause was a penalty despite the use

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of the word ‘penalty’ in Article 5.3. It was held
to be a genuine pre-estimate of loss.
(b) The Court also rejected at [72] a
suggestion that it permitted double recovery
when construed alongside a separate clause
providing for liability for losses caused by
breaches. The Court pointed out that a
“liquidated damages clause (if valid) operates
in substitution for a general assessment of the
claimant’s losses caused by delay”.
(c) However, a more formidable obstacle was
then raised: Triple Point said that Article 5.3
was only engaged when work was delayed but
subsequently completed by the contractor
and accepted. It does not apply in respect of
work which the employer never accepted. As
the Court noted, this “raises questions of
general principle concerning the operation of
liquidated damages clauses in termination or
abandonment cases”.
The court reviewed the case law relevant to
liquidated damages clauses running from the
early 1900s onwards, and at [106] categorised
them according to three different approaches:
(i) Cases where the clause does not apply at
all (such as Glanzstoff; Chanthall; Gibbs) since
it had only been intended to apply where the
contractor completed the works.
(ii) Cases where the clause applies up to
termination of the first contract but
thereafter the employer must prove its actual
losses (e.g. Greenore; Shaw; LW
Infrastructure; Bluewater).
(iii) Cases where the clause continues to apply
until the second (replacement) contractor
achieves completion (e.g. Hall; Crestdream;
GPP).
Jackson LJ noted that “much will turn on the
precise wording of the liquidated damages
clause in question”. He indicated at [110] that
the approach in category (ii) is treated by the
textbooks as the orthodox analysis, though it
is “not free from difficulty”; expressed some
doubt at [108] about the cases in category
(iii); and said at [109] that he saw much force
in the House of Lords’ reasoning in Glaszstoff
in category (i).
On the facts of the case, Article 5 fell within
category (i) since it was “focused specifically
on delay between the contractual completion
date and the date when Triple Point actually
achieves completion”. In view of the
termination, it had “no application in a
situation where the contractor never hands
over completed work to the employer”. PTT
was therefore entitled to liquidated damages
for the 149 delay to the completed stages 1
and 2, but not to any of the other stages. Such

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damages would be ‘at large’ and were to be
assessed on ordinary principles.
Discussion
This decision will be of great interest to
construction and technology practitioners,
particularly given the relative frequency of
works started by one contractor and
completed by another.
Both liquidated damages clauses and
termination clauses are widespread in many
standard forms, and very rarely is provision
expressly made as to what happens to such
liquidated damages in the event of
termination or non-completion.
Until now, liquidated damages clauses have
generally been construed as applying only up
to termination of the first contract, the
customer being entitled to liquidated
damages for delay up to the date of
termination and general damages thereafter.
As a result of this decision, parties and their
advisors will be keen to make express
whether or not liquidated damages are to be
engaged (a) only in the event of delayed
delivery by the initial supplier or (b) regardless
of whether or not there is delivery by the
initial supplier. They would also be wise to
make clear how and until when any liquidated
damages are to be calculated in the event of
delivery by a third party.
Authors
Quentin Tannock tannock@4pumpcourt.com
Jonathan Schafer-Goddard
JSchafferGoddard@4pumpcourt.com
Editors
George Woods gwoods@4pumpcourt.com
Matthew Thorne mthorne@4pumpcourt.com
Senior Clerks Carl Wall and Stewart Gibbs
4 Pump Court, Temple, London EC4Y 7AN Tel
+44 (0)20 7842 5555 Fax +44 (0)20 7583 2036
DX 303 LDE www.4pumpcourt.com
NEW REGULATORY AMENDMENTS
UNDER THE NEW CANADIAN
CONSTRUCTION ACT
On Friday May 24, 2019, the Ministry of the
Attorney General released a series of
amendments to the regulations under the
new Construction Act (“the Act”) to support
the recent amendments to the Act itself, and
to provide greater clarity and guidance for the
construction industry. These amendments to
the General, Forms, and Procedures for
Actions under Part VIII of the Act regulations
came into force on May 23, 2019 when the

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regulations were filed. The amendments to
the Adjudication regulation under Part II.1 of
the Act (and relevant provisions of the Forms
and General Regulations) will come into force
on October 1, 2019 when the new Prompt
Payment and Adjudication provisions take
effect.
General Provisions
1. Reg. 304/18 (General) has been amended
to address some concerns with holdback as
well as a few other housekeeping matters.
Section 7 of O. Reg. 304/18, relating to non-
payment of holdback, has been revoked and
replaced in its entirety with amendments
intended to address concerns with timeliness
and procedures in the event of non-payment
of holdback, as well as some transition issues
related to the non-payment of holdback.
Previously, Sections 7(2.1) through (2.3) did
not take effect until the Prompt Payment and
Adjudication provisions came into force. The
new amendments to the regulations address
this issue in relation to providing notice of
non-payment of holdback for contracts
entered into after July 1, 2018.
A new section 11.1 has now been added to
the General Regulation to provide further
clarity on the “giving” of a claim for lien to a
municipality and address Sections 34(3) and
87(1.2) of the Act. Section 11.1(1) provides a
municipality with the opportunity to detail the
preferred method for the “giving” of a claim
for lien by publishing on its website a
statement which details one or both of the
following methods:
1.Sending a copy of the claim for lien by email
to a specified email address.
2.Completing and submitting the claim for lien
through a specified web portal.
If a municipality specifies a preferred method
in accordance with section 11.1(1), a copy of
the claim for lien shall be given to the clerk of
the municipality in accordance with the
chosen method.[1] If it fails to do so, the
status quo under the Act will be maintained
such that the lien must be given in accordance
with the process of Section 87(1) and to the
office specified under O. Reg 304(18) s. 11.
Further, the new section provides that a claim
for lien must be provided by 5:00 p.m. local
time, or it is deemed to have been given on
the following business day.[2]
Procedures for Actions Under Part VIII

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The new regulation amending O. Reg. 302/18
(Procedures for Actions under Part VIII)
contain only one minor amendment to this
Regulation. Specifically, Section 3, relating to
joinders, has been amended by the addition
of subsection 3(2) which provides the plaintiff
with the option of joining a lien claim and a
claim for breach of contract or subcontract.
Adjudications Under Part II.1 of the Act
A number of amendments have also been
made to O. Reg. 306/18 which provides
further guidance on adjudications
commenced under Part II.1 of the Act. These
amendments are intended to clarify the highly
anticipated adjudication regime which comes
into force on October 1, 2019 and include a
number of minor modifications as well as
several more substantial amendments which
are detailed below.
In relation to the adjudicator code of conduct,
the amendments (i.e. striking out part of s.
7(1) and revoking s. 7(3) and (4) of the
Regulations) remove the requirement for
Minister approval of the code of conduct, the
ability of the Minister (on written notice) to
require the Authority[3] to make changes to
the code of conduct and the restriction on the
ability of the Authority to make changes to
the code of conduct without the Ministers’
consent. Presumably, applicants for the
Authority thought this was overly intrusive in
relation to setting their process. Depending
on the final form of the code of conduct for
adjudicators, though, this change could be
problematic.
Section 15.1 is a new section that provides the
Authority the option to provide administrative
support services to facilitate the conduct of
adjudications.
Section 16.1 clarifies the procedure for
documents which are to be delivered to the
adjudicator and other parties under section
13.11 of the Act. Section 16.1(1) provides that
the documents required to be provided to the
adjudicator or a party shall be served on the
adjudicator or another party in accordance
with the rules of the court for service of a
document that is not an originating process.
Section 16.1(2) provides that the documents
that must be provided under clause 13.11(b)
of the Act are subject to the following
requirements:

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1.The documents shall be provided to the
adjudicator together with the copy of the
notice under clause 13.11 (a) of the Act.
2.The documents shall be provided to the
other party or, in the case of a consolidated
adjudication, to every other party, on the
same day as they are provided to the
adjudicator.
Finally, section 16.1(3) requires the
adjudicator to provide the parties with
written confirmation of receipt of all required
documents as soon as possible once received,
and this confirmation is to state the date on
which the documents were received. This
change is intended to limit uncertainty
amongst adjudicating parties in circumstances
where parties may not be forthcoming or
prompt in relation to providing relevant dates
and information.
Section 17 of O. Reg. 306/18 has been
revoked, and substituted with a more
comprehensive section which provides the
much sought after clarified process for
responding to a notice of adjudication. For
example, section 17(1) provides that a party
responding to a notice of adjudication shall
provide copies of its response to the
adjudicator, the party who provided the
notice of adjudication, and, in the case of a
consolidated adjudication, to every other
party.
Section 17(2) provides that copies of the
response shall be served on the adjudicator or
a party in a manner permitted under the rules
of court for service of a non-originating
document. The timeline for a response is to
be determined by the adjudicator, and a party
must provide its response to the adjudicator
and to every other party on the same day.[4]
Section 22(1)(b) has also been amended and
now provides the adjudicator with seven days
to provide a certified copy of the
determination to the parties, instead of the
previous five days.
Forms
1. Reg. 303/18 (Forms) has been amended to
add necessary forms to be utilized under the
Act. Specifically, the following new forms have
been added:
1.1 Owner Notice of Non-Payment
(Subsection 6.4 (2) of the Act)
1.2 Contractor Notice of Non-Payment
Where Owner Does not Pay (Subsection 6.5
(5) of the Act)

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1.3 Contractor Notice of Non-Payment if
Dispute (Subsection 6.5 (6) of the Act)
1.4 Subcontractor Notice of Non-Payment
Where Contractor Does not Pay (Subsection
6.6 (6) of the Act)
1.5 Subcontractor Notice of Non-Payment if
Dispute (Subsection 6.6 (7) of the Act)
2019/01
Further, forms 23, 28, and 29,[5] which were
to be used for Small Claims Court actions only,
have been revoked and substituted with new
forms which provide for a monetary
jurisdiction of under $25,000. This
amendment ensures that there is no
confusion in the event that the monetary
jurisdiction of the Small Claims Court is
altered.
As can be seen from the foregoing, there are a
number of changes to the Act, many of which
have not yet come into force. We look
forward to the implementation of these new
provisions relating to prompt payment and
adjudication, which come into force on
October 1, 2019.
[1] O. Reg. 112/19, s. 11.1(2).
[2] O. Reg. 112/19, s. 11.1(3).
[3] The “Authority” is the Authorized
Nominating Authority designated under s.
13.2.
[4] O. Reg. 109/19, s. 17(3).
[5] Forms entitled “Order Directing a
Reference for Trial under Section 58 of the
Act”, “Report under Section 62 of the Act if
Lien Attaches to Premises”, and “Report
under Section 62 of the Act if Lien Does Not
Attach to Premises”.
For more information, please contact:
Singleton Urquhart Reynolds Vogel LLP
150 King St. West, Suite 2512, PO Box 24,
Toronto, ON M5H 1J9
D 416 585 8603 F 416 585 9458
www.singleton.com
Toronto | Vancouver
Bruce Reynolds breynolds@singleton.com
James Little jlittle@singleton.com
Cheryl Labiris clabiris@singleton.com
FRAUD NSW
YTO CONSTRUCTION PTY LTD V
INNOVATIVE CIVIL PTY LTD [2019]
NSWCA 110 (15 MAY 2019)
On 16 August 2018, a judge of the Equity
Division dismissed an application by YTO
Construction Pty Ltd (“YTO”) to have set aside
a judgment entered on an adjudication
certificate issued following an adjudicator’s
determination under the Building and
Construction Industry Security of Payment Act
1999 (NSW) on the basis that it was procured

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by fraud (“the Adjudication”). The judgment
awarded one of YTO’s subcontractors,
Innovative Civil Pty Ltd (“Innovative”),
$1,564,384.22 in respect of various works –
said to be variations – performed by
Innovative or its subcontractors on YTO’s
construction site in Ashfield.
Of the amount awarded to Innovative,
$462,000 related to a claim that Innovative,
by its subcontractor Elkordi Earthworx Pty Ltd
(“Elkordi”), had removed from YTO’s site 66
truckloads of General Solid Waste (“GSW”)
material. The amount awarded was based on
a rate of $7000 per load. GSW was to be
distinguished from Virgin Extracted Natural
Material (“VENM”).
YTO’s allegation of fraud was relevantly in two
parts. Paragraph 21(a) of its Second Further
Amended Technology and Construction List
Statement (“List Statement”) alleged that
Innovative claimed that it had removed 66
loads of GSW from the site when it had
concluded that a number of these loads were
not in fact GSW. It pleaded that Innovative
knew that some of the truckloads were not
GSW because it had refused to pay Elkordi on
that basis. As between Elkordi and Innovative,
a truckload of VENM commanded a haulage
rate of $500 per load, while a truckload of
GSW commanded a rate of $1250 or $1,200.
Innovative was proposing to pay Elkordi only
$500 – sometimes less – for many of the 66
loads claimed to be GSW.
Innovative provided to the adjudicator a
redacted copy of an invoice (“Invoice 0243”)
issued to it by Elkordi as evidence of the
haulage of 28 loads of GSW. An unredacted
copy of Invoice 0243 showed that the 28
“loads” evidenced by the invoice were not
loads at all, and that the invoice related to
hours spent by Elkordi waiting at the site.
The primary judge dismissed so much of YTO’s
claim that was founded on this allegation of
fraud on the basis that YTO, in order to prove
the falsity of the representation, would need
to prove that all 66 loads were not in fact
GSW, and YTO had not done so. His Honour
also found that because YTO asserted in its
closing submissions that it was not necessary
to conduct an assessment of the physical
qualities of the material removed in any given
truckload, it was advancing a case that had
not been articulated in its pleading.
The second allegation of fraud was that in
paragraph 21(b) of the List Statement. YTO
alleged that Innovative had represented that
$7000 was the cost to it of removing the loads
of GSW, when that was not the case. The
primary judge found that YTO had again
departed from its pleaded case because it had
not sought in its closing submissions to argue
that the representation was false. Further, the
primary judge found that Innovative was not
representing that the cost to it was $7000, but
rather that $7000 was the cost, including
mark-up (or “value”), to YTO.

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On appeal, the primary issue was whether the
primary judge erred in deciding that YTO’s
case as pleaded was not sufficient to impugn
the determination and that YTO’s final
submissions departed from its pleading. YTO
argued that the primary judge erred in so
finding, and that the primary judge ought to
have addressed the claim advanced by it.
The Court of Appeal (per White JA, Macfarlan
JA (at [1]) and Emmett AJA (at [94]) agreeing),
allowing the appeal in part, held:
In relation to the first allegation of fraud in
paragraph 21(a) –
The primary judge erred in not addressing the
evidence relating to the number of loads
hauled and whether Innovative knew that its
representation to the Adjudicator was false.
The primary judge misapprehended what
would be required to falsify the
representation. YTO was not required to show
that none of the 66 loads hauled was GSW. All
that was needed to falsify the representation
was for YTO to show that one or more of the
66 loads were not GSW (at [53] per White JA;
[106] per Emmett AJA).
YTO’s submission that it was not necessary to
assess the physical qualities of the material
removed was not a departure from its
pleaded case but rather a submission that its
case could be established on the basis of
Documentary evidence alone (at [61] per
White JA; [106] per Emmett AJA).
Quarter Enterprises Pty Ltd v Allardyce
Lumber Company Ltd (2014) 85 NSWLR 404;
[2014] NSWCA 3, referred to.
In relation to the second allegation of fraud in
paragraph 21(b) –
YTO did not depart from its pleading in its
written submissions. It was clear from the
balance of its submissions that the allegation
advanced by YTO was that the representation
was false (at [70] per White JA). However, the
finding as to the representation conveyed by
Innovative was well open to his Honour to
make, and he was not in error in making it (at
[72]-[74] per White JA; [107] per Emmett
AJA).
Further, where fraud is in issue, the question
is whether the representor honestly believed
the representation to be true in the sense in
which he or she understood it, or knew the
representee might understand it, and not in a
way in which a court, considering the matter
objectively, might understand it.
The primary judge accepted Innovative’s
evidence that it understood $7000 per load to
be the commercial rate for removal of GSW,
and thus there could be no fraud (at [73] per
White JA). In any event, YTO had not pleaded

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that Innovative knew or was aware of the
falsity of the claim. The claim in 21(b) was
rightly rejected (at [75] per White JA; [107]
per Emmett AJA).
http://www8.austlii.edu.au/cgi-
bin/viewdoc/au/cases/nsw/NSWCA/2019/110
.html
NSW 2018 SECURITY OF PAYMENT
AMENDMENTS UPDATE
On 27 May 2019 the Department of Finance
Services and Innovation issued a draft of the
regulation to accompany the 2018
amendments to the Building and Construction
Industry Security of Payment Act (BCISPA).
The covering note disclosed:
•Feedback received concerning the
commencement regime for the 2018 BCISPA
amendments indicated a preference for a
single commencement date (as opposed to
staged) for all of the reforms and for that date
to be a set without undue delay (the latter
being somewhat ironic!); and
•The amending regulation will be finalised
and published mid-year with the amending
Act and the Regulation commencing 3 months
after the amending Regulation is finalised and
published.
This suggests that the amendments will not
commence before the end of September
2019.
The public consultation draft for the 2019
Regulation:
•Confirms the expectation that owner
occupier construction contracts will be
excluded from the Act;
•Extends executive liability offences beyond
offences in respect of head contractors’
supporting statements to include offences in
respect of head contractor’s obligations
concerning retention trusts (which applies to
projects with a value of at least $20,000,000);
Executive liability offences lift the corporate
veil, exposing head contractor or directors,
and individuals involved in their management
to penalties of up to $22,000.
In respect of retention trusts, the offences to
which that exposure will apply are:
•Failure to pay retention money into an
approved authorised deposit taking institution
(i.e. approved under the Property Stock and
Business Agents Act 2002);
•Withdrawing money from a retention money
trust account (RMTA) other than for:

15 | P a g e
1.paying the money for the purpose for which
the money was retained by the head
contractor (as provided in the sub contract,
consultancy or supply agreement);
2.as agreed by the head contractor and the
‘sub contractor’ concerned; or
3.in accordance with the order of a court or
tribunal.
•Not notify the secretary of the Department
of Finance, Services and Innovation if a RMTA
becomes overdrawn and the reasons
therefore;
•Not noting the secretary of closure of a
RMTA;
•Not keeping the prescribed trust account
records;
•Not providing information required by the
secretary in respect of;
1.construction contracts entered into;
2.monies retained thereunder; and
3.and the RMTA generally;
within 7 days after the direction.
https://srwsd.clients.squiz.net/_fair-
trading/consultation-tool/security-of-
payment-amendment-regulation
ALDOUS BILL UPDATE
It seems that Parliament has lost interest in
the Bill , the proposed Bill was first read on
the 9 January 2018 now after a number of
postponed second readings the revised date
hasn’t been updated since it was last shown
as the 22 March 2019.
While arguments rage about Brexit it does
seem that Brexit may have killed the Bill.

16 | P a g e
CHUANG LONG ENGINEERING PTE
LTD V NAN HUAT ALUMINIUM &
GLASS PTE LTD [2019] SGHC 55
The Singapore High Court decision in Chuang
Long Engineering Pte Ltd v Nan Huat
Aluminium & Glass Pte Ltd [2019] SGHC 55
recently considered the question of whether
S7(2)(c) of the Building and Construction
Industry Security of Payment Act (Cap 30B,
2006 Rev Ed) (SOPA) entitles a claimant to
include in its payment claim the value of
materials fabricated under the contract but
which remained undelivered and uninstalled.
After analysing S7(2)(c) SOPA, Justice Chan
Seng Onn agreed with the adjudicator and
held that S7(2)(c) SOPA extends beyond
affixed or incorporated materials,
notwithstanding that property in the
materials has not passed, and the sole
question to ask in this situation is whether the
materials were fabricated to form part of the
building/structure in the construction
contract. In so doing, Justice Chan emphasised
Parliament’s intention to facilitate cash flow
and preserve the right to payment for work
done by construction parties, especially
downstream sub-contractors.
https://www.supremecourt.gov.sg/docs/defa
ult-source/module-
document/judgement/chuang-long-v-nan-
huat---final-pdf.pdf

17 | P a g e
AXIS M&E UK LTD & ANOR V
MULTIPLEX CONSTRUCTION
EUROPE LTD [2019] EWHC 169
(TCC)
The practical application of the slip was
discussed in this case and it provides useful
guidance for parties and adjudicators.
Section 108(3A) of the Housing Grants,
Construction and Regeneration Act 1998 (as
amended) (“the Act”) provides that:
“The [construction] contract shall include
provision in writing permitting the adjudicator
to correct his decision so as to remove a
clerical or typographical error arising by
accident or omission.”
This requirement is reflected in the Scheme at
paragraph 22A:
“(1) The adjudicator may on his own initiative
or on the application of a party correct his
decision so as to remove a clerical or
typographical error arising by accident or
omission.”
This case guidance when an adjudicator may
correct a mistake in his decision. The mistake
must be a true clerical or mathematical error,
which extends to erroneously carrying over a
calculation from one part of the decision to
another. The mistake must be apparent on
the face of the decision and fall within the
adjudicator’s first decision making process.
The Court also approved the Adjudicator’s
consequential amendments to his decision
allowing an award of interest and reversing
his decision on payment of his costs. The
Court agreed this was necessary so as to
prevent an outcome which was “internally
inconsistent”.
https://www.bailii.org/ew/cases/EWHC/TCC/
2019/169.html

18 | P a g e
TCC JUDGEMENTS
April
 Essex County Council v UBB Waste
(Essex) Ltd [2019] EWHC 819 (TCC)
(02 April 2019)
 PBS Energo AS v Bester Generacion
UK Limited [2019] EWHC 996 (TCC)
(17 April 2019)
 Russell & Anor v Stone (t/a PSP
Consultants) & Anor [2019] EWHC
831 (TCC) (05 April 2019)
 Swansea Stadium Management
Company Ltd v City & County of
Swansea & Anor [2019] EWHC 989
(TCC) (17 April 2019)
 Walter Lilly & Co Ltd v Clin [2019]
EWHC 945 (TCC) (17 April 2019)
May
 Amey Highways Ltd v West Sussex
County Council [2019] EWHC 1291
(TCC) (24 May 2019)
 Indigo Projects London Ltd v Razin
& Anor [2019] EWHC 1205 (TCC)
(17 May 2019)
 J J Rhatigan & Co (UK) Ltd v
Rosemary Lodge Developments
Ltd [2019] EWHC 1152 (TCC) (08
May 2019)
 Moorjani & Ors v Durban Estates
Ltd & Anor [2019] EWHC 1229
(TCC) (15 May 2019)
 RGB P&C Ltd v Victory House
General Partner Ltd [2019] EWHC
1188 (TCC) (10 May 2019)
 Thomas & Anor v Taylor Wimpey
Developments Ltd & Ors [2019]
EWHC 1134 (TCC) (09 May 2019)
 Willow Corp SARL v MTD
Contractors Ltd [2019] EWHC 1192
(TCC) (03 May 2019)

19 | P a g e
DRBF CONFERENCES 2019
DRBF Northwest Regional Conference:
Seattle, Washington, USA June 06 - 07, 2019
http://www.drb.org/events/calendar/
ADJUDICATION SOCIETY
26 JUNE 2019
Midlands Region - Adjudication panel case
studies and discussion
https://www.adjudication.org/sites/default/fil
es/Adjudication%20Society%20Birmingham%
20event%20-%2026%20June%20%202019.pdf
ANNUAL CONFERENCE 2019
Thursday, 7 November, 2019 9.30 for 10am
The Society's Eighteenth Annual Conference
will be held at the Hilton London
Metropole,225 Edgware Rd, Paddington,
London W21JU.
SOCIETY OF CONSTRUCTION LAW
(UK)
London
4th
June 2019 at 6.30pm
Economic torts and construction disputes
Speaker(s): Andrew Singer QC and Kelly
Pennifer
Chair: Jonathan Pawlowski, SCL Vice-Chair
Venue: National Liberal Club, 1 Whitehall Pl,
Westminster, London SW1A 2HE
Birmingham
19th June 2019 at 6.30pm
What does the contract provide? Recent
developments in interpretation of contracts
Speaker(s): Isabel Hitching QC, Crown Office
Chambers
Chair: Michael O’Shea
Venue: Anthony Collins Solicitors LLP, 134
Edmund Street, Birmingham B3 2ES

20 | P a g e
FIDIC CONFERENCES 2019
The FIDIC International Infrastructure
conference takes place from 8 to 10
September 2019 in Mexico City.
http://fidic2019.org/en
11th FIDIC Asia-Pacific Contract Users’
Conference, 25-27 June 2019
Main conference: Tuesday 25 and Wednesday
26 June 2019
Workshops: Monday 24 and Thursday 27 June
2019
Location: Hotel TBC, Hong Kong
3rd FIDIC Latin America Contract Users’
Conference, 10-12 September 2019
Main Conference: Wednesday 11 and
Thursday 12 September 2019
Workshops: Tuesday 10 September 2019
Location: Hotel TBC, Mexico City, Mexico
5th FIDIC Africa Contract Users’ Conference,
28-31 October 2019
Main Conference: Tuesday 29 and Wednesday
30 October 2019
Workshops: Monday 28 and Thursday 31
October 2019
Location: Avani Resort, Livingstone, Zambia
32nd FIDIC International Contract Users’
Conference, 2-5 December 2019
Main Conference: Tuesday 3 and Wednesday
4 December 2019
Workshops: Monday 2 and Thursday 5
December 2019
Location: Hotel TBC, London, UK
SCL INTERNATIONAL CONFERENCE
2020
The Society of Construction Law 9th
International Conference is being held from 4
to 6 November, 2020, in Auckland, New
Zealand. Further details can be found at :
http://www.constructionlaw2020.com/scl20

21 | P a g e
From 10-13 May 2020, the Scottish
Arbitration Centre plays host to the XXVth
International Council for Commercial
Arbitration Congress in Edinburgh.
For full information on the Congress, including
information on how to register, sponsor, or
reserve hotel accommodation, please visit the
Congress website www.icca2020.scot.
Please note that this is a newsletter
and does not provide legal advice.
Whilst every care has been taken in
the preparation of this document,
we cannot accept any liability for
any loss or damage, whether
caused by negligence or otherwise,
to any person using this document.
Independent legal advice should be
taken from a regulated lawyer.

22 AUGUST 2019 - CIARB 12 BLOOMSBURY SQUARE, LONDON WC1A 2LP
2019 LONDON ADJUDICATION & ARBITRATION CONFERENCE
HANSCOMB INTERCONTINENTAL, 5 CHANCERY LANE , LONDON
www.hanscombintercontinental.com
VENUE
CIARB 12 Bloomsbury Square, London WC1A 2LP
2019 LONDON ADJUDICATION
& ARBITRATION CONFERENCE
22 AUGUST 2019

CAPACITY: 140 ATTENDEES, 20 SPEAKERS
ADJUDICATION / DISPUTE BOARD TRACK WILL TAKE PLACE IN THE OLD LIBRARY
ROOM (LGF) 80 PERSONS
ARBITRATION TRACK WILL TAKE PLACE IN THE COUNCIL CHAMBER (GF) 80 PERSONS
COMPARARTIVE PRICE TABLE
Venue sponsor x 1 1600.00
Lunch sponsor x 1 1800.00
Refreshment sponsor x 1 1600.00
Drinks reception sponsor x 1 2400.00
Pen sponsor x 1 170 pens to be supplied by sponsor
Writing pad sponsor x 1 170 pads to be supplied by sponsor
Name badge sponsor x 1 240.00
USB sponsor 170 USB to be supplied by sponsor, with pa-
pers uploaded
Speakers dinner sponsor x 1 1000.00
Platinum sponsor x 1 2000.00
Gold sponsor x 1 1400.00
Silver sponsor x 1 950.00
Bronze sponsor x 3 500.00
Alternatively, one organisation could be the
sole sponsor.
10,000.00
Prices are quoted in £GBP and are subject to VAT at the prevailing rate.
Sponsorship only confirmed by receipt of payment.
We also invite proposals to suit your required budget and level of participation.

VENUE x 1 £1600.00
Acknowledgment in all conference promotions, including flyers, invitations, emails and media
releases.
Brochure distribution to conference delegates.
Limited corporate signage allowed to be displayed
Opportunity to address delegates during conference
Will be thanked during conference and in presentation slides
LUNCH x 1 £1800.00
releases.
REFRESHMENT x 1 £1600.00
releases.
DRINKS RECEPTION x 1 £2400.00
releases.
Opportunity to address delegates at start of drinks reception

SPEAKERS DINNER x 1 £1000.00
releases.
Opportunity to address speakers at dinner
PLATINUM x 1 £2000.00
releases.
Tabletop display and brochure distribution to conference delegates.
Unlimited corporate signage allowed to be displayed
Opportunity to address delegates at opening of conference
May play videos at designated area (sponsor to provide all necessary equipment)
GOLD x 1 £1400.00
releases.
Opportunity for tabletop display and brochure distribution to conference delegates
Unlimited corporate signage allowed to be displayed
May play videos at designated area (sponsor to provide all necessary equipment)
SILVER x 1 £950.00
Acknowledgment in all conference promotions, including flyers, invitations, emails, and media
releases.
Opportunity for brochure distribution to conference delegates.
Four pop up banners may be displayed at venue
BRONZE x 3 £500.00
Acknowledgment in all conference promotions, including brochures, invitations, emails, and media
releases.
Opportunity for brochure distribution to conference delegates.
One pop banner 1mx2m may be displayed at venue.
To discuss your exact requirements or to book packages please contact:
Sean Gibbs, Hanscomb Intercontinental, Eagle Tower, Cheltenham GL50 1TA
sean.gibbs@hanscombintercontinental.co.uk +447722643816

UK Adjdudiators Newsletter June 2019

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UK Adjdudiators Newsletter June 2019