The source of the good faith obligation in the performance and enforcement of commercial contracts

There are many issues associated with good faith that will ultimately confront the Australian High Court and a number of these have been well canvassed. However, one significant issue has attracted relatively little comment. To date, a number of Australian courts (lower in the judicial hierarchy) have been prepared to hold directly, tacitly accept or assume (without making a final determination) that good faith is implied (as a matter of law) in the performance and enforcement of a very broad class of contract, namely commercial contracts per se. This broad approach is demonstrated in decisions from the Federal Court, the New South Wales Court of Appeal, the Supreme Courts of Victoria and Western Australia and has crept into pleadings in commercial matters in Queensland

Land Contracts in Queensland [3rd ed]

Land Contracts in Queensland provides a thorough, user-friendly account of the law relating to buying and selling freehold land in Queensland. The authors analyse the substance of the transaction through the medium of standard contracts, and draw on a comprehensive range of court decisions relating to the area. There are chapters covering the role of the real estate agent, the disclosure regime for sellers and agents, the inclusion of special conditions, and stamp duty and GST implications.

Government community service contracts : restraining abuse of power

The use of grant contracts to deliver community services is now a significant feature of all Australian government administrations. These contracts are the primary instrument governing the provision of such services to citizens and are largely outside the usual parliamentary review mechanisms and constraints. This article examines the extent of the erosion of fundamental constitutional principles facilitated by the use of private contracts, by applying the principles used in scrutiny of delegated legislation to standard form federal and State community service contracts. It reveals extensive executive power which, if the relationship were founded in legislative instruments rather than in private contract, would have to be justified to Parliament at least and possibly not tolerated.

Determining the appropriate proportion of owner-provided design in design-build contracts - a content analysis approach

The Request For Proposal (RFP) with the design‐build (DB) procurement arrangement is a document in which an owner develops his requirements and conveys the project scope to DB contractors. Owners should provide an appropriate level of design in DB RFPs to adequately describe their requirements without compromising the prospects for innovation. This paper examines and compares the different levels of owner‐provided design in DB RFPs by the content analysis of 84 requests for RFPs for public DB projects advertised between 2000 and 2010 with an aggregate contract value of over $5.4 billion. A statistical analysis was also conducted in order to explore the relationship between the proportion of owner‐provided design and other project information, including project type, advertisement time, project size, contractor selection method, procurement process and contract type. The results show that the majority (64.8%) of the RFPs provide less than 10% of the owner‐provided design. The owner‐provided design proportion has a significant association with project type, project size, contractor selection method and contract type. In addition, owners are generally providing less design in recent years than hitherto. The research findings also provide owners with perspectives to determine the appropriate level of owner‐provided design in DB RFPs.

Supreme Court Decision Results in a Change to Standard Contracts

The decision of Dalton J in Lai v Soineva [2011] QSC 247 has resulted in a change in the latest versions of the Real Estate Institute of Queensland (REIQ) contracts.

Unfair terms in residential land contracts : will the Australian consumer law improve a buyer’s bargaining position?

The prohibition on unfair contract terms in standard form consumer contracts has the potential to significantly impact on the terms of contracts for the sale of land. The definition of ‘consumer contract’ includes contracts for the sale or grant of an interest in land to an individual wholly or predominantly for personal or domestic use. Therefore, a contract for the purchase of a residence for personal occupation by the buyer, as opposed to a purchase for investment purposes, will be a consumer contract potentially attracting the application of the unfair terms provisions. Significant consumer protection mechanisms already exist in most state jurisdictions requiring disclosure of relevant matters to the buyer and providing remedies for the provision of misleading conduct. Minimal evidence of unfair terms in land contract was presented to the Productivity Commission Inquiry into the Australian Consumer Policy Framework raising the question as to whether there is an identified problem of unfair terms in real estate contracts and if so, whether the same economic and ethical rationales justify regulatory intervention. This article examines what effect if any the introduction of the unfair contract provisions will have on the enforcement of residential land contracts and the viability of previously accepted conditions if challenged as being “unfair terms”. The article concludes that despite the existence of several potentially unfair terms in some land contracts, the intervention of the rules of equity to overcome perceived hardship or unfairness to buyers from strict enforcement of terms means the unfair terms provisions are only likely to operate on terms untouched by those principles. In the authors’ view the scope for operation of the unfair terms provisions will be limited to terms untouched by the principles of equity and consumer protection legislation making it unlikely that there will be any significant realignment of the contractual obligations and rights of buyers and sellers of land.

Traffic and climate change impacts on water quality : measuring build-up and wash-off of heavy metals and petroleum hydrocarbons

Understanding the impacts of traffic and climate change on water quality helps decision makers to develop better policy and plans for dealing with unsustainable urban and transport development. This chapter presents detailed methodologies developed for sample collection and testing for heavy metals and total petroleum hydrocarbons, as part of a research study to investigate the impacts of climate change and changes to urban traffic characteristics on pollutant build-up and wash-off from urban road surfaces. Cadmium, chromium, nickel, copper, lead, iron, aluminium, manganese and zinc were the target heavy metals, and selected gasoline and diesel range organics were the target total petroleum hydrocarbons for this study. The study sites were selected to encompass the urban traffic characteristics of the Gold Coast region, Australia. An improved sample collection method referred to as ‘the wet and dry vacuum system’ for the pollutant build-up, and an effective wash-off plan to incorporate predicted changes to rainfall characteristics due to climate change, were implemented. The novel approach to sample collection for pollutant build-up helped to maintain the integrity of collection efficiency. The wash-off plan helped to incorporate the predicted impacts of climate change in the Gold Coast region. The robust experimental methods developed will help in field sample collection and chemical testing of different stormwater pollutants in build-up and wash-off.

"Fair" government contracts for community service provision : time to curb unfettered executive freedom?

All Australian governments are significantly increasing the use of contracted community service provision through not for profit (NFP) organisations. These transactions occur through grant arrangements which take the form of standard contracts or deeds rather than drawing on statutory authority. Government inquiries bodies have consistently reported and raised concerns about the fairness of such standard grant contract terms, but failed to provide any mechanism whereby fairness can be assured. The Productivity Commission has suggested that the resulting poor relationship results in inappropriate risk transfer, micro-management, disincentives to innovate and poor service provision. This paper develops and tests a fairness measure based on the principles of the Australian Consumer Law which legislates fairness protections for standard consumer contracts.  

Exploring governance issues on collaborative contracts in the construction industry

This paper reports the findings of an in-depth literature review, which was designed as the first phase of a study that ultimately aims to rank the importance of key governance mechanisms on collaborative construction projects, in terms of impact on value-for-money. The absence of such information in the global knowledge base has prompted the current study. Seminal research completed recently concluded that deductive evidence with regard to the performance outcomes of collaborative procurement mechanisms is currently limited (Eriksson and Westerberg 2011). The authors aim to address this gap in current understanding. The literature review identifies key features of both formal and informal mechanisms which have been applied within collaborative contracting contexts. The literature review lays a solid foundation for designing a deductive research strategy to be implemented in the second phase of the study, which will employ a large-scale quantitative survey to shed light on the governance structures of collaborative contracts, and the ways in which they impact on realisation of VfM during project delivery in the Australian infrastructure industry. The current paper aims to identify the main categories of formal and informal governance mechanisms currently being employed globally. This will provide structure for the development of the survey in the second phase of the study.

Shahejie−Shahejie/Guantao/Wumishan and Carboniferous/Permian Coal−Paleozoic Total Petroleum Systems in the Bohaiwan Basin, China (based on geologic studies for the 2000 World Energy Assessment Project of the U.S. Geological Survey)

This report discusses the geologic framework and petroleum geology used to assess undiscovered petroleum resources in the Bohaiwan basin province for the 2000 World Energy Assessment Project of the U.S. Geological Survey. The Bohaiwan basin in northeastern China is the largest petroleum-producing region in China. Two total petroleum systems have been identified in the basin. The first, the Shahejie–Shahejie/Guantao/Wumishan Total Petroleum System, involves oil and gas generated from mature pods of lacustrine source rock that are associated with six major rift-controlled subbasins. Two assessment units are defined in this total petroleum system: (1) a Tertiary lacustrine assessment unit consisting of sandstone reservoirs interbedded with lacustrine shale source rocks, and (2) a pre-Tertiary buried hills assessment unit consisting of carbonate reservoirs that are overlain unconformably by Tertiary lacustrine shale source rocks. The second total petroleum system identified in the Bohaiwan basin is the Carboniferous/Permian Coal–Paleozoic Total Petroleum System, a hypothetical total petroleum system involving natural gas generated from multiple pods of thermally mature coal beds. Low-permeability Permian sandstones and possibly Carboniferous coal beds are the reservoir rocks. Most of the natural gas is inferred to be trapped in continuous accumulations near the center of the subbasins. This total petroleum system is largely unexplored and has good potential for undiscovered gas accumulations. One assessment unit, coal-sourced gas, is defined in this total petroleum system.