(including those falling within Victoria’s “excluded amounts” regime). Section 23 of the Victorian SOP Act "at a minimum requires a determination as to whether the construction work the subject of the claim has been performed and its value". Even though Justice Digby recognised that "bare reasons which render the Adjudicator’s determination comprehensible will suffice", not even this relatively low standard was reached. The adjudicator had failed to undertake the determinative task required, and the determination did not contain comprehensible reasons explaining the quantification of the adjudicated amount. Therefore, the determination was void. Battle of the forms: lump sum or cost plus construction contract? (Clayton Utz – Major projects & construction 5 Minute Fix 17) A recent NSW Supreme Court decision has highlighted the need for contracting parties to be wary of how their objective intentions could be assessed after modifying or replacing previous legal agreements. Stepanoski v Aslan [2018] NSWSC 1160 considered a battle of the forms for a construction contract. The parties had initially signed a Cost Plus Contract, but later signed a Lump Sum Contract which was backdated to the date of the Cost Plus Contract. The issue arose as to the extent to which the Lump Sum Contract was intended to replace the Cost Plus Contract. Justice Emmett had regard to the defendant's monthly progress claims. These sometimes attached tax invoices headed "Cost Plus Building Contract Value …" , however they also: • referred to the exact amounts specified in the Lump Sum Contract under the schedule of progress payments; • mentioned the amount of the lump sum as the contract value; and
• did not particularise the defendant's expenditure incurred in performing the works. Further evidence also indicated that certain payments were made to the defendant over and above the amount actually expended by him at that time. Despite the "minor inconsistencies" in the material, overall the evidence was inconsistent with there being a Cost Plus Contract on foot. Justice Emmett held that irrespective of when the Lump Sum Contract was signed, the act of signing clearly indicated the parties' intention to be bound by the Lump Sum Contract with effect from the date that it bore. Retentions under the spotlight Since 31 March 2017, all new and renewed non-residential construction contracts have been subject to a retentions trust regime following amendments to the Construction Contracts Act 2002 (the Act). In essence, retention moneys are deemed to be held on trust, meaning they are not available to the general pool of creditors provided they can be traced.