Building Contract Review

From hundreds of contract reviews across ABIC, Master Builders, HIA, and bespoke contracts, the most common issues include:

• Payment provisions that don't comply with security of payment legislation in the relevant state
• Special conditions that conflict with the standard-form terms they purport to amend
• Missing or inadequate variation procedures that leave parties exposed to scope disputes
• Extension of time provisions that are unworkable in practice or that create unintended bar dates
• Non-compliance with the Home Building Act (NSW), Domestic Building Contracts Act (Vic), or equivalent legislation
• Ambiguous contract administration provisions in ABIC contracts that blur the architect's role

These issues are identifiable before signing, and fixable through properly drafted special conditions or contract amendments. The cost of addressing them pre-contract is trivial compared to the cost of resolving them mid-construction through adjudication or litigation.

A specialist review is a structured read of the whole contract, not just the clauses that catch the eye. Each review moves through the same stages, adapted to the contract in front of it:

1. Confirm the form and the parts. Identify the standard form and edition, and gather every part that makes up the agreement, the general conditions, the annexures or schedules, the special conditions, and the drawings and specifications they refer to.
2. Map the commercial deal. Check that the price, the payment mechanism, the program and the scope match what the parties actually agreed, and that the special conditions do not quietly contradict the standard form they amend.
3. Test the risk allocation. Work through variations, extensions of time, delay costs, latent conditions, liquidated damages, security and insurance, identifying where risk sits and whether that is workable and insurable for the party being advised.
4. Check statutory compliance. Confirm the contract meets the residential building legislation and security of payment regime in the relevant state or territory, so nothing that must be in the contract is missing.
5. Report with recommendations. Set out the issues in plain language, ranked by importance, with practical amendments or special conditions to fix them before signing.

Construction contracts are read against the law of the state or territory where the work is carried out, and that law differs across the country. A review for a residential project checks the contract against the applicable regime, whether that is the Home Building Act 1989 (NSW), the Domestic Building Contracts Act 1995 (Vic), the Home Building Contracts Act 1991 (WA), the QBCC Act in Queensland, or the equivalent legislation in South Australia, Tasmania, the ACT and the Northern Territory.

Because advice is provided remotely from a New South Wales base, a contract for a project anywhere in Australia can be reviewed without attending an office in person. What does not change from one jurisdiction to the next is the value of a reviewer who has administered building contracts and adjudicated payment disputes, and who reads a contract for how it will run on site, not only how it reads on the page.