Archive for the ‘Statutory Adjudication’ Category

Turnbull Government is considering the findings of my PhD

By Dr Samer Skaik

A few days ago, the Turnbull Government released the final report of the Review of Security of Payment Laws, undertaken by Mr John Murray. Murray’s report made 86 recommendations to improve consistency in the security of payment legislation. In the relevant Media Release, the Minister stated that:

the Government will consult with industry to consider the report’s recommendations and explore ways to improve the protections for individuals and businesses involved in subcontracting in the construction industry.

The report provided eight recommendations (43-50) pertaining the introduction of review mechanism in statutory adjudication based on my written submission in this regard. The written submission was merely a presentation of the findings of my PhD entitled “Introducing review mechanism into statutory construction adjudication.” I cite the relevant paragraph from the final report which cites my rationale of introducing this concept: (Read more..)

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Launching My Channel on YouTube

By Dr Samer Skaik

Very recently, I have launched a channel on Youtube. This channel aims to provide integrated, handy and focused

educational materials for those interested in developing their competencies in construction project management, professional practice and leadership. My aim is to help raise the bar by providing sound, solid and up-to-date knowledge for students, graduates and professionals in the construction sector. The channel, in addition to the videos, includes other interesting educational playlists. You can display the playlists chronologically if you are keen to develop a robust understanding in the field and advance progressively towards mastering the subject. The playlists include:

  1. My Videos (short lectures)
  2. Managing projects
  3. Doing Research
  4. Construction Management
  5. Professional Development

You are kindly invited to visit the channel, subscribe, share and provide feedback and ideas for improvement.

 

Samples of uploaded videos:

(Read more..)

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Why should adjudicators refrain from deciding jurisdictional issues? (Part 1)

By Samer Skaik

The intent of the Security of Payment (SOP) legislation in many jurisdictions[1] was set out to help vulnerable class of subcontractors get paid in a timely manner. As such, rapid statutory adjudication was introduced within the legislation whereas adjudication decisions are binding and interim pending any subsequent final resolution of the dispute by arbitration or litigation. However, adjudication decisions can mainly be set aside[2] by way of judicial review on grounds of jurisdictional errors which invalidate adjudication process. Adjudicators are always susceptible to errors when deciding upon jurisdictional issues due to many factors including the complex drafting of the SOP legislation, tight timeframes, complexity of raised arguments, a failure by disputants to raise jurisdictional issues not apparent on the submissions as well as the inappropriate selection of adjudicators where the referred matter requires a particular expertise. (Read more..)

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Launching CMGuide Inaugural Mentoring Programme

We are very delighted to launch the Inaugural Mentoring Programme targeting graduates and early-career professionals in the construction industry.

This is a free service initiated and operated by CMGuide and led by CMGuide Founder (Dr Samer Skaik). The mentoring programme is targeting ambitious graduates and early-career professionals in the construction industry. The programme is only available in Australia. We encourage prospective and interested mentors in Australia who have the experience in any of the mentoring areas to join our ‘Mentors Panel’ ASAP so we can serve and enrol more mentees in the programme. Interested mentors should mention the mentoring area and availability arrangement so we can properly match mentees (protégé) with appropriate mentors. It is completely up to the mentors and mentees once to discuss and agree the mentoring arrangement during the mentoring year such as mentoring duration (not less than 6 months), communication method, frequency of meetings, level of support, etc.  (Read more..)

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The impact of flawed appointment on the quality of adjudication outcome

By Samer Skaik

Quality of adjudication decisions under the Security of Payment legislation may mean different things to different people. The ultimate yardstick by which adjudication quality can be measured is to be found in the legal accuracy – both in terms of procedural and substantive fairness – of adjudication decisions whether such decisions involve a determination on the merits or dismissal for want of jurisdiction. However, recognising that there is a trade-off between fairness and efficiency in dispute resolution,[1] this criterion needs to be calibrated in the light of the legislative objective, being to provide a rapid dispute resolution procedure in order to expedite cash flow on construction contracts. Thus, it would clearly be absurd to hold adjudication decisions up to as higher level of scrutiny as in arbitration or litigation. (Read more..)

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The Mechanism of the Australian Statutory Adjudication in a Nutshell

By Samer Skaik

Many construction practitioners in Australia face difficulties in understanding the mechanism of the Statutory Adjudication and how it differs from a State to another. While it is important to point out that the Australian Acts are different, there are a number of common mechanisms. Typically, a person entitled to a progress payment for carrying out construction work (or supplying related goods and services) had to seek recovery of any unpaid amounts via lengthy legal proceedings in arbitration or court. As such, parliament enacted the Security of Payment (SoP) legislation to protect the rights of such persons and facilitate rapid recovery of due payment. The SoP legislation provides statutory rights enabling quick and inexpensive recovery of progress payment for any subcontractor or supplier performing construction works or supplying related goods and services. To facilitate these rights, the SoP introduced a rapid adjudication process to resolve payments disputes. (Read more..)

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Towards shaping better criteria of diagnosing complex construction adjudications

By Samer Skaik

Many commentators have suggested that,[1] the “one size fits all” approach taken by the Australian security of payment legislation (save for Queensland) is no longer appropriate (if indeed it ever was) for producing quality outcomes in adjudications of complex payment claims, where larger and more difficult payment disputes are involved. (Read more..)

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Forthcoming: My four book chapters on Australia within “International Contractual and Statutory Adjudication” Book

By Samer Skaik

I am thrilled that my four peer reviewed book chapters on Australian Statutory Adjudication will be available in9781138239623 the market in Feb 2017 under “International Contractual and Statutory Adjudication” book which is edited by Andrew Burr and being published by Informa Law from Routledge.

This is the breakdown of the chapters:

  1. Australia: the East Coast Model with New South Wales as the Principal Legislation
  2. Australia: the East Coast Model: Victoria, Tasmania, The Australian Capital Territory and South Australia
  3. Australia: the East Coast Model: Queensland
  4. Australia: the West Coast model

Those chapters will be added to the already published three journal papers to form the main chapters of my PhD ‘thesis by publication’. (Read more..)

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CMGuide’s Director Highly Commended for Australian Brooking Prize in Construction Law

The Founder and Director of Construction Management Guide, Samer Skaik, was highly commended for his submission ‘Taking Statutory Adjudication to the Next Level: Legislative Review Mechanisms of Erroneous Determinations’  in the 2016 Australian Society of Construction Law Brooking Prize. The paper effectively summarizes the core merits of his PhD research in that area.

The criteria used for awarding commendations include originality of thoughts and contribution to the construction law or its application in the industry as well as the quality of analysis, the freshness of ideas and the value of the work.

A more detailed version of that paper will also appear in the upcoming edition of International Construction Law Review Journal. (Read more..)

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Is ‘reference date’ deemed an essential jurisdictional fact for validity of Adjudications?

In Australia, the courts have been inconsistent in their approaches to define jurisdictional facts upon which the jurisdiction of adjudicator can be determined. A very recent example is the case of Lewence Construction Pty Ltd v Southern Han Breakfast Point Pty Ltd [2015] NSWCA 288. (Read more..)

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