The Construction and Performance of Commercial Contracts

This book analyses the principles underlying the construction and application of a number of boilerplate and other clauses commonly included in commercial contracts. The first Part of the work deals with general principles of interpretation. It then considers clauses which allocate commercial risk; clauses relating to performance; clauses introducing new parties by way of assignment, novation or nomination; clauses such as guarantees and indemnities which create liabilities in third parties; and dispute resolution clauses including governing law. The authors highlight common issues surrounding the application of these clauses in practice and, where appropriate, make drafting recommendations based on their analysis of case law and the operation of relevant statutes. This is a very accessible resource for all commercial practitioners.

Government procurement contracts and minimum labour standards enforcement: Rhetoric, duplication and distraction?

Government contracts for services typically include terms requiring contractors to comply with minimum labour standards laws. Procurement contract clauses specify reporting procedures and sanctions for non-compliance, implying that government contracting agencies will monitor and enforce minimum labour standards within contract performance management. In this article, the case of school cleaners employed under New South Wales government contracts between 2010 and 2011 is the vehicle for exploring the effectiveness of these protective clauses. We find that the inclusion of these protective clauses in procurement contracts is unnecessary in the Australian context, and any expectations that government contracting agencies will monitor and enforce labour standards are misleading. At best, the clauses are rhetoric, and at worst, they are a distraction for parties with enforcement powers.

New laws for off the plan contracts in Queensland

The Land Sales Act 1984 regulates “off the plan” sales in Queensland in conjunction with several provisions in the Body Corporate and Community Management Act 1997. Together the Acts regulate sales in both unit developments and housing estates. From 2010 to 2013 the Queensland Government undertook a comprehensive review of the Land Sales Act 1984 to identify opportunities to modernise and improve the legislation. Significant changes were recommended by the Review to align the Land Sales Act 1984 (LSA) with current surveying and conveyancing practice and to overcome a number of practical issues faced by developers under the current legislation. A significant outcome of the review is the removal of provisions related to off the plan community title sales from the LSA to the Body Corporate and Community Management Act 1997 (BCCMA) and the Building Units and Group Titles Act 1980 (BUGTA). This article examines the Land Sales and Other Legislation Amendment Act 2014 due to commence in November 2014.

Innate transcriptional networks activated in bladder in response to uropathogenic Escherichia coli drive diverse biological pathways and rapid synthesis of IL-10 for defense against bacterial urinary tract infection

Early transcriptional activation events that occur in bladder immediately following bacterial urinary tract infection (UTI) are not well defined. In this study, we describe the whole bladder transcriptome of uropathogenic Escherichia coli (UPEC) cystitis in mice using genome-wide expression profiling to define the transcriptome of innate immune activation stemming from UPEC colonization of the bladder. Bladder RNA from female C57BL/6 mice, analyzed using 1.0 ST-Affymetrix microarrays, revealed extensive activation of diverse sets of innate immune response genes, including those that encode multiple IL-family members, receptors, metabolic regulators, MAPK activators, and lymphocyte signaling molecules. These were among 1564 genes differentially regulated at 2 h postinfection, highlighting a rapid and broad innate immune response to bladder colonization. Integrative systems-level analyses using InnateDB (http://www.innatedb.com) bioinformatics and ingenuity pathway analysis identified multiple distinct biological pathways in the bladder transcriptome with extensive involvement of lymphocyte signaling, cell cycle alterations, cytoskeletal, and metabolic changes. A key regulator of IL activity identified in the transcriptome was IL-10, which was analyzed functionally to reveal marked exacerbation of cystitis in IL-10–deficient mice. Studies of clinical UTI revealed significantly elevated urinary IL-10 in patients with UPEC cystitis, indicating a role for IL-10 in the innate response to human UTI. The whole bladder transcriptome presented in this work provides new insight into the diversity of innate factors that determine UTI on a genome-wide scale and will be valuable for further data mining. Identification of protective roles for other elements in the transcriptome will provide critical new insight into the complex cascade of events that underpin UTI.

Insurance and transport law : controlling insurance contract terms : Section 54 of the Insurance Contracts Act – compliance, recovery and accountability

Commonwealth legislation covering insurance contracts contains numerous provisions designed to control the operation and effect of terms in life and general insurance contracts. For example, the Life Insurance Act 1995 (Cth) contains provisions regulating the consequences attendant upon incorrect statements in proposals [1] and non-payment of premiums, [2] provides that an insurer may only exclude liability in the case of suicide if it has made express provision for such contingency in its policy, [3] and severely restricts the efficacy of conditions as to war risks. [4] The Insurance Contracts Act 1984 (Cth) is even more intrusive and has a major impact upon contractual provisions in the general insurance field. It is beyond the scope of this note to explore all of these provisions in any detail but examples of controls and constraints imposed upon the operation and effect of contractual provisions include the following. A party is precluded from relying upon a provision in a contract of insurance if such reliance would amount to a failure to act with the utmost good faith. [5] Similarly, a policy provision which requires differences or disputes arising out of the insurance to be submitted to arbitration is void, [6] unless the insurance is a genuine cover for excess of loss over and above another specified insurance. [7] Similarly clause such as conciliation clauses, [8] average clauses, [9] and unusual terms [10] are given qualified operation. [11] However the provision in the Insurance Contracts Act that has the greatest impact upon, and application to, a wide range of insurance clauses and claims is s 54. This section has already generated a significant volume of case law and is the focus of this note. In particular this note examines two recent cases. The first, Johnson v Triple C Furniture and Electrical Pty Ltd [2012] 2 Qd R 337, (hereafter the Triple C case), is a decision of the Queensland Court of Appeal; and the second, Matthew Maxwell v Highway Hauliers Pty Ltd [2013] WASCA 115, (hereafter the Highway Hauliers case), is a decision of the Court of Appeal in Western Australia. This latter decision is on appeal to the High Court of Australia. The note considers too the decision of the New South Wales Court of Appeal in Prepaid Services Pty Ltd v Atradius Credit Insurance NV [2013] NSWCA 252 (hereafter the Prepaid Services case).These cases serve to highlight the complex nature of s 54 and its application, as well as the difficulty in achieving a balance between an insurer and an insured's reasonable expectations.

Comparing the effect of inadequate documentation to the cost management and tendering processes in managing contractor and fixed lump sum contracts in Australia

Purpose of this paper This research aims to examine the effects of inadequate documentation to the cost management & tendering processes in Managing Contractor Contracts using Fixed Lump Sum as a benchmark. Design/methodology/approach A questionnaire survey was conducted with industry practitioners to solicit their views on documentation quality issues associated with the construction industry. This is followed by a series of semi-structured interviews with a purpose of validating survey findings. Findings and value The results showed that documentation quality remains a significant issue, contributing to the industries inefficiency and poor reputation. The level of satisfaction for individual attributes of documentation quality varies. Attributes that do appear to be affected by the choice of procurement method include coordination, build ability, efficiency, completeness and delivery time. Similarly the use and effectiveness of risk mitigation techniques appears to vary between the methods, based on a number of factors such as documentation completeness, early involvement, fast tracking etc. Originality/value of paper This research fills the gap of existing body of knowledge in terms of limited studies on the choice of a project procurement system has an influence on the documentation quality and the level of impact. Conclusions Ultimately research concludes that the entire project team including the client and designers should carefully consider the individual projects requirements and compare those to the trade-offs associated with documentation quality and the procurement method. While documentation quality is definitely an issue to be improved upon, by identifying the projects performance requirements a procurement method can be chosen to maximise the likelihood that those requirements will be met. This allows the aspects of documentation quality considered most important to the individual project to be managed appropriately.

Infection and cellular defense dynamics in a novel 17beta-estradiol murine model of chronic human group B streptococcus genital tract colonization reveal a role for hemolysin in persistence and neutrophil accumulation

Genital tract carriage of group B streptococcus (GBS) is prevalent among adult women; however, the dynamics of chronic GBS genital tract carriage, including how GBS persists in this immunologically active host niche long term, are not well defined. To our knowledge, in this study, we report the first animal model of chronic GBS genital tract colonization using female mice synchronized into estrus by delivery of 17β-estradiol prior to intravaginal challenge with wild-type GBS 874391. Cervicovaginal swabs, which were used to measure bacterial persistence, showed that GBS colonized the vaginal mucosa of mice at high numbers (106–107 CFU/swab) for at least 90 d. Cellular and histological analyses showed that chronic GBS colonization of the murine genital tract caused significant lymphocyte and PMN cell infiltrates, which were localized to the vaginal mucosal surface. Long-term colonization was independent of regular hormone cycling. Immunological analyses of 23 soluble proteins related to chemotaxis and inflammation showed that the host response to GBS in the genital tract comprised markers of innate immune activation including cytokines such as GM-CSF and TNF-α. A nonhemolytic isogenic mutant of GBS 874391, Δcyle9, was impaired for colonization and was associated with amplified local PMN responses. Induction of DNA neutrophil extracellular traps, which was observed in GBS-infected human PMNs in vitro in a hemolysin-dependent manner, appeared to be part of this response. Overall, this study defines key infection dynamics in a novel murine model of chronic GBS genital tract colonization and establishes previously unknown cellular and soluble defense responses to GBS in the female genital tract.

Vaccination of koalas (Phascolarctos cinereus) with a recombinant chlamydial major outer membrane protein adjuvanted with poly I:C, a host defense peptide and polyphosphazine, elicits strong and long lasting cellular and humoral immune responses

Chlamydial infections are wide spread in koalas across their range and a solution to this debilitating disease has been sought for over a decade. Antibiotics are the currently accepted therapeutic measure, but are not an effective treatment due to the asymptomatic nature of some infections and a low efficacy rate. Thus, a vaccine would be an ideal way to address this infectious disease threat in the wild. Previous vaccine trials have used a three-dose regimen; however this is very difficult to apply in the field as it would require multiple capture events, which are stressful and invasive processes for the koala. In addition, it requires skilled koala handlers and a significant monetary investment. To overcome these challenges, in this study we utilized a polyphosphazine based poly I:C and a host defense peptide adjuvant combined with recombinant chlamydial major outer membrane protein (rMOMP) antigen to induce long lasting (54 weeks) cellular and humoral immunity in female koalas with a novel single immunizing dose. Immunized koalas produced a strong IgG response in plasma, as well as at mucosal sites. Moreover, they showed high levels of C. pecorum specific neutralizing antibodies in the plasma as well as vaginal and conjunctival secretions. Lastly, Chlamydia-specific lymphocyte proliferation responses were produced against both whole chlamydial elementary bodies and rMOMP protein, over the 12-month period. The results of this study suggest that a single dose rMOMP vaccine incorporating a poly I:C, host defense peptide and polyphosphazine adjuvant is able to stimulate both arms of the immune system in koalas, thereby providing an alternative to antibiotic treatment and/or a three-dose vaccine regime.

Accountability 30 years on: Insurance Contracts Act Reform

The Insurance Contracts Act 1984 (Cth) since inception has effected major reform to the law in this field. One of Australia’s most frequently cited pieces of legislation, it has had a major impact upon the law and practice of insurance. Given the importance of insurance to domestic and commercial activity and its pivotal position as a mechanism to manage exposure to risk, it is not surprising that this legislation has been the subject of extensive analysis in the courts and in legal literature. Furthermore the Act has, arising out of a 2009 review, been significantly amended by the Insurance Contracts Amendment Act 2013 (Cth). The principal amendments introduced are: two-fold: the Insurance Contracts Act 1984 (Cth) has been amended so that a failure to comply with the duty of good faith is now a breach of the Act; and disclosure and misrepresentation provisions under the Insurance Contracts Act 1984 (Cth) are amended and clarified.

A growing good faith in contracts

The Supreme Court of Canada's ruling in Bhasin v Hrynew represents a significant step forward in harmonising the multiple strands of debate surrounding the existence of a good faith provision in common law contracting. Although a general principle of good faith (derived from Roman Law) is recognized by most civil law systems and a growing number of common law countries have embraced statutory provisions towards this end, Bhasin v Hrynew is argued to be a critical advance in catalysing uniform acceptance of good faith as a fundamental principle essential to support an increasingly integrated global commercial environment.

Genome-wide mapping of cystitis due to Streptococcus agalactiae and Escherichia coli in mice identifies a unique bladder transcriptome that signifies pathogen-specific antimicrobial defense against urinary tract infection

The most common causes of urinary tract infections (UTIs) are Gram-negative pathogens such as Escherichia coli; however, Gram-positive organisms including Streptococcus agalactiae, or group B streptococcus (GBS), also cause UTI. In GBS infection, UTI progresses to cystitis once the bacteria colonize bladder, but the host responses triggered in the bladder immediately following infection are largely unknown. Here, we used genome-wide expression profiling to map the bladder transcriptome of GBS UTI in mice infected transurethrally with uropathogenic GBS that was cultured from a 35 year-old women with cystitis. RNA from bladders was applied to Affymetrix Gene-1.0ST microarrays; qRT-PCR was used to analyze selected gene responses identified in array datasets. A surprisingly small significant gene list of 172 genes was identified at 24h; this compared to 2507 genes identified in a side-by-side comparison with uropathogenic E. coli (UPEC). No genes exhibited significantly altered expression at 2h in GBS-infected mice according to arrays despite high bladder bacterial loads at this early time point. The absence of a marked early host response to GBS juxtaposed with broad-based bladder responses activated by UPEC at 2h. Bioinformatics analyses including integrative systems-level network mapping revealed multiple activated biological pathways in the GBS cystitis transcriptome that regulate leukocyte activation, inflammation, apoptosis, and cytokine-chemokine biosynthesis. These findings define a novel, minimalistic type of bladder host response triggered by GBS UTI, which comprises collective antimicrobial pathways that differ dramatically from those activated by UPEC. Overall, this study emphasizes the unique nature of bladder immune activation mechanisms triggered by distinct uropathogens.

A lifespan perspective on psychological contracts and their relations with organizational commitment

The current study investigated the influence of age-related constructs on the psychological contract and its relationships with continuance and normative commitment. It was proposed that as people age, their future time perspective (FTP) decreases. Consequently, it was expected that contract fulfilment would be positively related to continuance commitment for workers with short FTP, while it would be positively related to normative commitment for workers with long FTP. Conversely, it was argued that, with age, workers’ perceived work-related expertise increases, resulting in stronger reactions to obligation fulfilment on normative commitment. A study among 334 employees showed that FTP and work-related expertise indeed moderated the relationships between contract fulfilment and organizational commitment. The results showed that the influence of age on the relations between contract fulfilment with outcomes is dependent upon FTP and occupational expertise. The study shows the value of a lifespan perspective on psychological contracts and their relations with organizational commitment.

Land Contracts in Queensland [4th Edition]

"The authors analyse the substance of the transaction through the medium of the latest standard REIQ Residential, Commercial and Community Titles contracts, and draw on a comprehensive range of court decisions relating to the area. There are chapters covering contract formation including the role of the real estate agent, the disclosure regime for sellers and agents, subject matter, the inclusion of special conditions, risk, completion both through the paper based medium and electronic conveyancing and stamp duty and GST implications."--Publisher website