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This subject introduces students to the specialised field of construction law. Whilst the focus is primarily upon the domestic Australian law, many of the key themes and legal principles are encountered internationally; thus, an understanding of construction law in its comparative context will also be engendered.
The subject develops and integrates legal knowledge from across many sub-disciplinary fields (e.g. contract law and torts law), augmenting this through study of specific case law and legislation, and relevant multidisciplinary knowledge, to build an understanding of the complex interactions that define construction law.
Topics addressed will range from the common law and statutory landscape applying to construction law, through project procurement strategies and the specific legal issues which typically occur on projects (including unforeseen site conditions, work scope variation, time delays and payment claims), to means by which disputes can be avoided, managed and resolved.
Intended learning outcomes
On completion of this subject, students should have:
Integrated understanding of the following specialised subject-matter:
- key elements of the legal framework governing construction law (common law, statutory and industry-based (e.g.standard forms)).
- choice of contracting methodology for project delivery.
- legal issues arising in contract administration, including tendering and contract preparation.
- professional liability, including that of superintendents.
- sub-contract drafting and risk allocation.
- claims arising from variations to the work.
- the particular legal requirements and liabilities arising in relation to quality and defects, latent conditions and time.
- the importance of payment within the industry, including contractual and statutory regimes for enforcing payment and securing obligations under contracts.
- appropriate means of avoiding and resolving disputes.
Students should also have:
- a capacity to critically compare and analyse the legal framework applicable to construction law across Australian and overseas jurisdictions, as relevant, and to consider recommendations for reform of aspects of the Australian approaches in light of those comparisons.
A sophisticated appreciation of, and ability to engage in:
- the complex theoretical, policy and practical debates taking place internationally in relation to construction law.
- the balance to be struck between the protection of the vulnerable (including consumers) and freedom to contract.
- moving beyond adversarialism in contracting without abandoning commercial certainty.
- the extent to which construction contracting should be regulated by statute.
- whether – and, if so, how – an appropriate balance can be struck between expedition and natural justice in the management and resolution of construction disputes.
On completion of the subject, students should have developed their skills in the following areas:
- specialist understanding, interpretation, critical reflection, synthesis and comparison of texts relating to construction law from the various Australian jurisdictions and overseas;
- analysing, comparing and reflecting critically on policy documents relating to construction law from the various Australian jurisdictions and overseas;
- generating and evaluating proposals for reform of Australian construction law having regard to interstate and international experience;
- developing a research question relevant to this complex field, creatively carrying out research involving diverse domestic (and, where appropriate, international) sources, and preparing a substantial piece of writing displaying sophisticated investigation,
- analysis, synthesis and application of theoretical understanding; and
- formulating and articulating views on difficult technical issues relating to construction law in oral discussion, in a manner displaying the development of professional judgment.
Last updated: 11 September 2020