The implication of a term of good faith in commercial leases — A brief response

By way of response to Professor Duncan's article,1 this article examines the theoretical basis for the implication of contractual terms, particularly the implication of a term at law. In this regard the recent decision of Barrett J in Overlook v Foxtel [2002] NSWSC 17 is considered, to the extent that it provides guidance concerning the implication of an obligation of good faith in the context of a commercial contract. A number of observations are made which may be considered likely to have application to the relationship of commercial landlord and tenant. The conclusion reached is that although the commercial landlord and tenant contractual relationship is highly regulated, this may not deny a remedy to a tenant who is the victim of a landlord's 'bad faith'. Finally, the article concludes by considering the extent to which it may be possible to contractually exclude the implied obligation of good faith.

Environmental assessment for commercial buildings: Stakeholder requirements and tool characteristics

The Cooperative Research Centre for Construction Innovation (CRC CI) is a national research, development and implementation centre focused on the needs of the property, design, construction and facility management sectors. Established in 2001 and headquartered at Queensland University of Technology as an unincorporated joint venture under the Australian Government's Cooperative Research Program, the CRC CI is developing key technologies, tools and management systems to improve the effectiveness of the construction industry. The CRC CI is a seven year project funded by a Commonwealth grant and industry, research and other government support. More than 150 researchers and an alliance of 19 leading partner organisations are involved in and support the activities of the CRC CI

Evaluation of functional performance in commercial buildings

This report fully summarises a project designed to enhance commercial real estate performance within both operational and investment contexts through the development of a model aimed at supporting improved decision-making. The model is based on a risk adjusted discounted cash flow, providing a valuable toolkit for building managers, owners, and potential investors for evaluating individual building performance in terms of financial, social and environmental criteria over the complete life-cycle of the asset. The ‘triple bottom line’ approach to the evaluation of commercial property has much significance for the administrators of public property portfolios in particular. It also has applications more generally for the wider real estate industry given that the advent of ‘green’ construction requires new methods for evaluating both new and existing building stocks. The research is unique in that it focuses on the accuracy of the input variables required for the model. These key variables were largely determined by market-based research and an extensive literature review, and have been fine-tuned with extensive testing. In essence, the project has considered probability-based risk analysis techniques that required market-based assessment. The projections listed in the partner engineers’ building audit reports of the four case study buildings were fed into the property evaluation model developed by the research team. The results are strongly consistent with previously existing, less robust evaluation techniques. And importantly, this model pioneers an approach for taking full account of the triple bottom line, establishing a benchmark for related research to follow. The project’s industry partners expressed a high degree of satisfaction with the project outcomes at a recent demonstration seminar. The project in its existing form has not been geared towards commercial applications but it is anticipated that QDPW and other industry partners will benefit greatly by using this tool for the performance evaluation of property assets. The project met the objectives of the original proposal as well as all the specified milestones. The project has been completed within budget and on time. This research project has achieved the objective by establishing research foci on the model structure, the key input variable identification, the drivers of the relevant property markets, the determinants of the key variables (Research Engine no.1), the examination of risk measurement, the incorporation of risk simulation exercises (Research Engine no.2), the importance of both environmental and social factors and, finally the impact of the triple bottom line measures on the asset (Research Engine no. 3).

Re-Lifing commercial buildings : design and construction solutions for existing buildings

The resources listed in this document describe the design and construction opportunities available to building owners who wish to re-Life their properties. They do not yet examine management opportunities, which may also help owners improve the efficiency of their existing stock.

Benchmarks for recycling practices in commercial office building refurbishment : data collection challenges

In recent years considerable effort has gone into quantifying the reuse and recycling potential of waste generated by residential construction. Unfortunately less information is available for the commercial refurbishment sector. It is hypothesised that significant economic and environmental benefit can be derived from closer monitoring of the commercial construction waste stream. With the aim of assessing these benefits, the authors are involved in ongoing case studies to record both current standard practice and the most effective means of improving the eco-efficiency of materials use in office building refurbishments. This paper focuses on the issues involved in developing methods for obtaining the necessary information on better waste management practices and establishing benchmark indicators. The need to create databases to establish benchmarks of waste minimisation best practice in commercial construction is stressed. Further research will monitor the delivery of case study projects and the levels of reuse and recycling achieved in directly quantifiable ways

Catching up with consumer realities: the need for legislation prohibiting unfair terms in consumer contracts

In the policy debate about the need for legislation to prohibit the use of unfair terms in consumer contracts, substantive unfairness is often distinguished from procedural unfairness. Current consumer protection laws appear to offer the potential for relief on substantive unfairness grounds alone. However, a review of cases involving credit contracts shows this potential is rarely realised. This reluctance to provide relief for substantive injustice reflects a preoccupation with freedom and certainty of contract, the notions underpinning classical contract theories. As a class, consumers are vulnerable in the marketplace, and they do need protection from substantively unfair terms. A new framework for regulating consumer contracts is needed, one that relies less on classical contract theories and takes the reality of consumer contracting and consumer behavior as its starting point. Unfair contract terms legislation will be a step on the path towards this new framework.

Integrating eco-efficiency assessment of commercial buildings into the design process : LCADesign

The ability to assess a commercial building for its impact on the environment at the earliest stage of design is a goal which is achievable by integrating several approaches into a single procedure directly from the 3D CAD representation. Such an approach enables building design professionals to make informed decisions on the environmental impact of building and its alternatives during the design development stage instead of at the post-design stage where options become limited. The indicators of interest are those which relate to consumption of resources and energy, contributions to pollution of air, water and soil, and impacts on the health and wellbeing of people in the built environment as a result of constructing and operating buildings. 3D object-oriented CAD files contain a wealth of building information which can be interrogated for details required for analysis of the performance of a design. The quantities of all components in the building can be automatically obtained from the 3D CAD objects and their constituent materials identified to calculate a complete list of the amounts of all building products such as concrete, steel, timber, plastic etc. When this information is combined with a life cycle inventory database, key internationally recognised environmental indicators can be estimated. Such a fully integrated tool known as LCADesign has been created for automated ecoefficiency assessment of commercial buildings direct from 3D CAD. This paper outlines the key features of LCADesign and its application to environmental assessment of commercial buildings.

LCADesign : an integrated approach to automatic eco-efficiency assessment of commercial buildings

Buildings consume resources and energy, contribute to pollution of our air, water and soil, impact the health and well-being of populations and constitute an important part of the built environment in which we live. The ability to assess their design with a view to reducing that impact automatically from their 3D CAD representations enables building design professionals to make informed decisions on the environmental impact of building structures. Contemporary 3D object-oriented CAD files contain a wealth of building information. LCADesign has been designed as a fully integrated approach for automated eco-efficiency assessment of commercial buildings direct from 3D CAD. LCADesign accesses the 3D CAD detail through Industry Foundation Classes (IFCs) - the international standard file format for defining architectural and constructional CAD graphic data as 3D real-world objects - to permit construction professionals to interrogate these intelligent drawing objects for analysis of the performance of a design. The automated take-off provides quantities of all building components whose specific production processes, logistics and raw material inputs, where necessary, are identified to calculate a complete list of quantities for all products such as concrete, steel, timber, plastic etc and combines this information with the life cycle inventory database, to estimate key internationally recognised environmental indicators such as CML, EPS and Eco-indicator 99. This paper outlines the key modules of LCADesign and their role in delivering an automated eco-efficiency assessment for commercial buildings.

Developing within-company information and communication technologies (ICT) innovation diffusion networks : a study of three Australian major contractors

The innovation diffusion and knowledge management literature strongly supports the importance of communities of practice (COP) for enabling knowledge about how to use and adopt innovation initiatives. One of the most powerful tools for innovation diffusion is word-of-mouth wisdom from committed individuals who mentor and support each other. Close proximity for face-to-face interaction is highly effective, however, many organisations are geographically dispersed with projects being virtual linked sub-organisations using ICT to communicate. ICT has also introduced a useful facilitating technology for developing knowledge networks. This paper presents findings from a research program concentrating on ICT innovation diffusion in the Australian construction industry. One way in which ICT diffusion is taking place was found to be through within-company communities of practice. We undertook in-depth unstructured interviews with three of the major 10 to 15 contractors in Australia to discuss their ICT diffusion strategies. We discovered that in all three cases,within company networked communities of practice was a central strategy. Further, effective diffusion of ICT groupware tools can be critical in developing COP where they are geographically dispersed.

The efficacy of waste management plans in Australian commercial construction refurbishment projects

Renovation and refurbishment of the existing commercial building stock is a growing area of total construction activity and a significant generator of waste sent to landfill in Australia. A written waste management plan (WMP) is a widespread regulatory requirement for commercial office redevelopment projects. There is little evidence, however, that WMPs actually increase the quantity of waste that is ultimately diverted from landfill. Some reports indicate an absence of any formal verification or monitoring process by regulators to assess the efficacy of the plans. In order to gauge the extent of the problem a survey was conducted of twenty four consultants and practitioners involved in commercial office building refurbishment projects to determine the state of current practice with regard to WMPs and to elicit suggestions with regard to ways of making the process more effective. Considerable variation in commitment to recycling policies was encountered indicating a need to revisit waste minimisation practices if the environmental performance of refurbishment projects is to be improved.

A study of Australian company responses to email complaints

As businesses and organisations move online, many question how to use Internet communication tools effectively, such as Web sites and electronic mail (Porter, 2001). Where and how should they invest their time and money in technology? This research explores a small part of this broad question, online complaining and electronic customer service. This paper extends prior US-based research of consumer complaints by email (Strauss and Hill, 2001) in several ways. First, it replicates their research in an Australian setting. Second, this research addresses several future research issues that Strauss and Hill (2001) raised. And third, this paper uses diffusion of innovation (Rogers, 1995) to explain some of the results. The results partially support the findings of Strauss and Hill (2001), take a small step towards further investigation of effective email responses and provide practical suggestions for better email customer service.

Promoting creativity in education : from policy to practice : an Australian perspective

In the 21st century, our global community is changing to increasingly value creativity and innovation as driving forces in our lives. This paper will investigate how educators need to move beyond the rhetoric to effective practices for teaching and fostering creativity. First, it will describe the nature of creativity at different levels, with a focus on personal and everyday creativity. It will then provide a brief snapshot of creativity in education through the lens of new policies and initiatives in Queensland, Australia. Next it will review two significant areas related to enriching and enhancing students’ creative engagement and production: 1) influential social and environmental factors; and 2) creative self-efficacy. Finally, this paper will propose that to effectively promote student creativity in schools, we need to not only emphasise policy, but also focus on establishing a shared discourse about the nature of creativity, and researching and implementing effective practices for supporting and fostering creativity. This paper has implications for educational policy, practice and teacher training that are applicable internationally.

Frameworks in regulating company directors : rethinking the philosophical foundations to enhance accountability

Sets out a system of corporate governance regulation, aimed at combining legal and social methods of governing director behaviour and at creating a framework flexible enough to accommodate different business and ethical cultures. Outlines the theoretical basis of corporate governance and the broad responsibilities of directors, and discusses the extent to which they can and should be regulated. Discusses the constitution of a regulatory framework encompassing law, soft law and best practice, and ethics.

Building an Australasian Commons : Creative Commons case studies vol. 1

A collection of 60 case studies of the use of Creative Commons licensing in different sectors, including: music, social activism, film, visual arts, collecting, government, publishing and education.