Respecting contractual intentions : balancing consumer expectations with the sanctity of contract in the context of standard form insurance contracts

It is the purpose of this article to examine the means curently available to judges to achieve a workable balance between providing appropriate consumer protection to signatories of standard form contractors while still retaining adequate respect for the sanctity of contract, and, based on this analysis, to determine whether a significantly greater scope of contract (re)construction is likely to become the norm in most common law jurisdictions in the coming decades.

Good faith in contractual performance and enforcement : Australian doctrinal hurdles

In the ongoing and spirited debate about the relative merits of an obligation of good faith in contractual performance and enforcement, widely divergent views have been expressed about the appropriateness and content of the putative obligation. However, relatively less time has been devoted to discussion of the sparseness of tools available to facilitate doctrinal development and the hurdles necessarily imposed by such limited doctrinal resources. This article seeks to examine the Australian doctrinal position against the backdrop of good faith as it finds application in the wider global context.

Contractual relationships for better stewardship of privatised critical infrastructures

Governments increasingly rely on forms of privatisation to provide critical public infrastructure yet when those infrastructures fail to meet community expectations government bears the political and economic risks, being held accountable by the public as steward for those infrastructures. Reconfiguration of the contractual relationships may achieve better stewardship. Many of the forms of privatization rely on Agency theory prescriptions, conceptualizing organisations and individuals as motivated solely by self-interest. Stewardship theory (Van Slyke 2007) has developed as a complement to Agency theory offering the possibility of contractual relationships which maximize stewardship outcome. Stewardship theory asserts that pro-stewardship factors cause the agent/steward to act in the interests of the principal. This research has interrogated the literature finding that of the pro-stewardship factors, sense of responsibility is pre-eminent and has a significant link to the agent acting as a steward. The research has explored how important it is that the steward feel sense of responsibility and the actions that sense of responsibility. Case studies of privatized core elements of urban water systems infrastructure were explored. Data has been gathered primarily from archival sources and individual interviews of government and private sector executives key to those systems. This paper reports the findings as to the extent of stewardship, how important it is that the steward acts in the interests of the principal, even to the steward’s detriment and the importance of the steward feeling a sense of responsibility. The actions which increase that sense of responsibility will be assembled to position the research to better proceed with the analysis of the data as to these actions.

Integrity, attribution, and exploitation : contractual and normative moral rights protection in open licensing

Over the last twenty years, the use of open content licenses has become increasingly and surprisingly popular. The use of such licences challenges the traditional incentive-based model of exclusive rights under copyright. Instead of providing a means to charge for the use of particular works, what seems important is mitigating against potential personal harm to the author and, in some cases, preventing non-consensual commercial exploitation. It is interesting in this context to observe the primacy of what are essentially moral rights over the exclusionary economic rights. The core elements of common open content licences map somewhat closely to continental conceptions of the moral rights of authorship. Most obviously, almost all free software and free culture licences require attribution of authorship. More interestingly, there is a tension between social norms developed in free software communities and those that have emerged in the creative arts over integrity and commercial exploitation. For programmers interested in free software, licence terms that prohibit commercial use or modification are almost completely inconsistent with the ideological and utilitarian values that underpin the movement. For those in the creative industries, on the other hand, non-commercial terms and, to a lesser extent, terms that prohibit all but verbatim distribution continue to play an extremely important role in the sharing of copyright material. While prohibitions on commercial use often serve an economic imperative, there is also a certain personal interest for many creators in avoiding harmful exploitation of their expression – an interest that has sometimes been recognised as forming a component of the moral right of integrity. One particular continental moral right – the right of withdrawal – is present neither in Australian law or in any of the common open content licences. Despite some marked differences, both free software and free culture participants are using contractual methods to articulate the norms of permissible sharing. Legal enforcement is rare and often prohibitively expensive, and the various communities accordingly rely upon shared understandings of acceptable behaviour. The licences that are commonly used represent a formalised expression of these community norms and provide the theoretically enforceable legal baseline that lends them legitimacy. The core terms of these licences are designed primarily to alleviate risk in sharing and minimise transaction costs in sharing and using copyright expression. Importantly, however, the range of available licences reflect different optional balances in the norms of creating and sharing material. Generally, it is possible to see that, stemming particularly from the US, open content licences are fundamentally important in providing a set of normatively accepted copyright balances that reflect the interests sought to be protected through moral rights regimes. As the cost of creation, distribution, storage, and processing of expression continues to fall towards zero, there are increasing incentives to adopt open content licences to facilitate wide distribution and reuse of creative expression. Thinking of these protocols not only as reducing transaction costs but of setting normative principles of participation assists in conceptualising the role of open content licences and the continuing tensions that permeate modern copyright law.

Compensation covenants for mining activities run with the land : a win for successive landowners

The Queensland Supreme Court case of Cape Flattery Silica Mines Pty Ltd v Hope Vale Aboriginal Shire Council [2012] QSC 381 provides guidance on the long-term ramifications of compensation agreements for mining activities. The central issue considered by the Court was whether compensation payments relate to land and run with the land pursuant to s 53(1) of the Property Law Act.

Exchange relationships in building services maintenance activity : a test of transaction cost economics and the resource dependency view

The firm is faced with a decision concerning the nature of intra-organizational exchange relationships with internal human resources and the nature or inter-organizational exchange relationships with market firms. In both situations, the firm can develop an exchange that ranges from a discrete exchange to a relational exchange. Transaction Cost Economics (TCE) and the Resource Dependency View (RDV) represent alternative efficiency-based explanations fo the nature of the exchange relationship. The aim of the paper is to test these two theories in respect of air conditioning maintenance in retail centres. Multiple sources of information are genereated from case studies of Australian retail centres to test these theories in respoect of internalized operations management (concerning strategic aspects of air conditioning maintenance) and externalized planned routine air conditioning maintenance. The analysis of the data centres on pattern matching. It is concluded that the data supports TCE - on the basis of a development in TCE's contractual schema. Further research is suggested towards taking a pluralistic stance and developing a combined efficiency and power hypothesis - upon which Williamson has speculated. For practice, the conclusions also offer a timely cautionary note concerning the adoption of one approach in all exchange relationships.

Statutory protections from forfeiture of a leasehold estate following Apriaden Pty Ltd v Seacrest Pty Ltd

In Apriaden Pty Ltd v Seacrest Pty Ltd the Victorian Court of Appeal decided that termination of a lease under common law contractual principles following repudiation is an alternative to reliance upon an express forfeiture provision in the lease and that it is outside the sphere of statutory protections given against the enforcing of a forfeiture. The balance of authority supports the first aspect of the decision. This article focuses on the second aspect of it, which is a significant development in the law of leases. The article considers the implications of this decision for essential terms of clauses in leases, argues that common law termination for breach of essential terms should be subject to compliance with these statutory requirements and, as an alternative, suggests a way forward through appropriate law reform, considering whether the recent Victorian reform goes far enough.

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.

Final report implementation of relational management

Construction teams and construction organisations have their own distinctive cultures. There also exists an infrastructure, both social and contractual, which ensures that these projects within which the teams operate are completed successfully. It is these issues which this research has addressed. The project was instigated by Queensland Department of Main Roads, Public Works and John Holland Group in order to address how they might better implement relationship management (RM) on their construction projects. The project was devised initially in order to facilitate a change in culture which would allow the project to be run in a relational manner and would lead to effective performance in terms of the KPIs that the organisations set for themselves, described as business better than usual. This report describes the project, its outcomes and deliverable and indicates the changes that were made to the project during the research process. Hence, the initial premise of the project and the problem to investigate was the implementation of relational contracting: • throughout a range of projects; • with a focus on client body staff. The additions that were made to the project, and documented in the variations to the project, included two major additional areas of study: • client management and stakeholder management; • a live case study of an alliancing project. The context within which the research was undertaken is important. The research was driven by main roads with their desire to improve their operations by focusing on the relationship between the major project participants (however, stakeholder and client organisation management became an obvious issue as the research progressed, hence the variations). The context was initially focussed on main roads, public works and John Holland group organisations but it became clear very quickly that this was in fact an industry-wide issue and not an issue specific solely to the project participants. Hence, the context within which this research took place can be described as below: The deliverables from the project are a toolkit for determining RM needs in an organisation, a monograph describing the practical implementation of RM and the outline for a RM CPD and Masters course

Multi-Outcome Construction Policies : Industry-Focused Research Summary

The Multi-outcomes Construction Policies research project, funded by the Cooperative Research Centre for Construction Innovation (Project 2006-036-A), sought to explore the costs and benefits of leveraging social outcomes on public construction contracts. The context of the research project was the trend towards the contracting out of public construction works and the attempts that have been made to use new contractual arrangements with construction companies to construction achieve a wide range of social outcomes. In federal and state jurisdictions it is now common for governments to impose a range of additional requirements on public works contractors that relate to broad social/community objectives. These requirements include commitments to train apprentices and trainees; to provide local and/or indigenous employment opportunities; to buy local materials; and to include art works. The cost and benefits of using public construction contracts to achieve social/community goals have, to our knowledge, not been thoroughly researched in an Australian context. This is likely to reflect in large part the relatively short history of contracting out public works. As Jensen and Stonecash (2004) explain, most previous empirical studies of contracting out have attempted to measure the cost savings achieved through privatization, as this was the focus of policy debate in the 1980s and 1990s. Relatively few studies have addressed the ability of contracting arrangements to ensure the delivery of desired ‘quality’ outcomes1, or the costs of achieving these outcomes via contracting arrangements. One of the potential costs of attempting to leverage social/community outcomes on public construction projects is a reduction in the amount of competition for these projects, with obvious consequences for average bid prices and choice. In jurisdictions, such as Western Australia and Queensland, where currently construction market conditions are already

Building information modelling project decision support framework

Building Information Modelling (BIM) is an information technology [IT] enabled approach to managing design data in the AEC/FM (Architecture, Engineering and Construction/ Facilities Management) industry. BIM enables improved interdisciplinary collaboration across distributed teams, intelligent documentation and information retrieval, greater consistency in building data, better conflict detection and enhanced facilities management. Despite the apparent benefits the adoption of BIM in practice has been slow. Workshops with industry focus groups were conducted to identify the industry needs, concerns and expectations from participants who had implemented BIM or were BIM “ready”. Factors inhibiting BIM adoption include lack of training, low business incentives, perception of lack of rewards, technological concerns, industry fragmentation related to uneven ICT adoption practices, contractual matters and resistance to changing current work practice. Successful BIM usage depends on collective adoption of BIM across the different disciplines and support by the client. The relationship of current work practices to future BIM scenarios was identified as an important strategy as the participants believed that BIM cannot be efficiently used with traditional practices and methods. The key to successful implementation is to explore the extent to which current work practices must change. Currently there is a perception that all work practices and processes must adopt and change for effective usage of BIM. It is acknowledged that new roles and responsibilities are emerging and that different parties will lead BIM on different projects. A contingency based approach to the problem of implementation was taken which relies upon integration of BIM project champion, procurement strategy, team capability analysis, commercial software availability/applicability and phase decision making and event analysis. Organizations need to understand: (a) their own work processes and requirements; (b) the range of BIM applications available in the market and their capabilities (c) the potential benefits of different BIM applications and their roles in different phases of the project lifecycle, and (d) collective supply chain adoption capabilities. A framework is proposed to support organizations selection of BIM usage strategies that meet their project requirements. Case studies are being conducted to develop the framework. The results of the preliminary design management case study is presented for contractor led BIM specific to the design and construct procurement strategy.

Joint venture behaviour in construction industry : an Australia case study

Joint ventures can take many forms and can be formed for different reasons, from sharing resources to creating future business opportunities. At the same time, there is increasing interest and discussion of alternative procurement methods, moving away from traditional procurement systems to relational approaches. Business systems and strategies need to be redefined and move from a short-term project to project culture to a more strategic, long-term perspective. Joint ventures of construction organisations, global and local, have become increasingly popular to deliver large-scale infrastructure construction projects. However, successful strategic collaborations require project organisations to formulate a fit between contractual and operational arrangements for each situation. This study reviews the movement from traditional procurement methods towards relational contracting approaches in Queensland, Australia. The study examines the organisational factors that facilitates sustainable relationship between project organisations and hence, lead to long-term business success. This paper reports on initial findings captured from a survey undertaken with construction contracting organisations in Australia, focusing on the supply chain relationships. Contractors’ perceptions of the relationship management process and the engagement of the supply chain are also presented.

Spaces of care in the third sector : Understanding the effects of professionalization

Increasingly the health and welfare needs of individuals and communities are being met by third sector, or not-for-profit, organizations. Since the 1980s third sector organizations have been subject to significant, sector-wide changes, such as the development of contractual funding and an increasing need to collaborate with governments and other sectors. In particular, the processes of ‘professionalization’ and ‘bureaucratization’ have received significant attention and are now well documented in third sector literature. These processes are often understood to create barriers between organizations and their community groups and neutralize alternative forms of service provision. In this article we provide a case study of an Australian third sector organization undergoing professionalization. The case study draws on ethnographic and qualitative interviews with staff and volunteers at a health-based third sector organization involved in service provision to marginalized community groups. We examine how professionalization alters organizational spaces and dynamics and conclude that professionalized third sector spaces may still be ‘community’ spaces where individuals may give and receive care and services. Moreover, we suggest that these community spaces hold potential for resisting the neutralizing effects of contracting.

Contracting for community development : a case study based perspective of a public sector client initiative in Hong Kong

The construction industry is known to be an important contributor towards the gross domestic product of many countries. Moreover, the health of the construction industry is positively correlated to the economic growth of a country and in many economies public sector clients account for a major share of construction works. Given this strength, it is important for public sector clients to initiate innovations aimed at the betterment of the industry. In this context, concern about sustainable development has been a major driver of some innovative initiatives in construction industries worldwide. Furthermore, the Government of Hong Kong regards both sustainability and community development as important criteria when planning and procuring construction projects. This paper is based on a case study of a public sector development project in Hong Kong, and presents the salient features of the procurement and contractual systems adopted in the project, which foster sustainability and community development. The reported interim findings are based on a preliminary document analysis that is part of an ongoing longitudinal case study into the project. The document analysis takes a three-pronged approach in terms of how the procurement and contractual systems foster economic, environmental and social sustainability, and sums up their impact on the community as a whole.