Building and Construction Dispute Resolution
Cash flow is one fight. The contract is another.
Payment disputes can be resolved in weeks. Defects, delay, variations and termination cannot. Those disputes turn on the contract, the programme, the site records and expert evidence, and they are decided in QCAT, in arbitration, or in the Queensland courts. Which of those you end up in is usually determined by decisions taken in the first month, often by people who did not realise they were making them.
Boyle Litigation acts for developers, principals, head contractors, subcontractors and consultants in building and construction disputes across Queensland and nationally. Litigation is the only work we do.
Disputes we run
| Dispute | What it turns on |
|---|---|
| Defects and rectification | The specification, the standard of workmanship required, causation, and the cost of doing the work properly |
| Delay, extensions of time and liquidated damages | The programme, the notices actually given, and whether the contractual mechanism was followed |
| Variations and scope | Whether the work was directed, valued and claimed in accordance with the contract |
| Termination and repudiation | Franchisees and multi-site operators managing lease exposure across a portfolio |
| Final account and retention | The measure of work done, back charges, and what remains payable at the end of the job |
| Superintendent and certifier decisions | Whether the decision was made honestly, reasonably, and within the authority conferred |
| Pre-contract representations | Statements about cost, programme, scope or approvals, and claims under the Australian Consumer Law |
| Security and bank guarantees | Whether recourse to security is permitted on the facts, and whether it can be restrained |
| Projects affected by insolvency | What survives an appointment, what can be recovered, and from whom |
Dispute
Defects and rectification
Delay, extensions of time and liquidated damages
Choosing the forum
| Forum | Typically used for | Practical note |
|---|---|---|
| Contractual dispute procedure | Notices of dispute, conferences and superintendent determinations required before proceedings | Frequently a condition precedent. Skipping a step can defeat an otherwise good claim |
| QCAT | Building disputes under the QBCC Act, including many domestic building matters | Lighter procedure and lower cost. For domestic building disputes the QBCC process generally comes first |
| Queensland courts | Substantial commercial claims, urgent relief, and disputes involving multiple parties | Full disclosure and expert evidence, with case management suited to complex construction matters |
| Arbitration | Where the contract requires it, including many major project and standard form contracts | Private and final. Confirm the clause operates before doing anything inconsistent with it |
| Expert determination | Technical valuation, measurement and quantum questions | Fast and often binding. The scope of the referral does most of the work |
| Mediation | Almost any dispute, at almost any stage | Effective once both sides understand their position. Early mediation without evidence rarely settles well |
| QBCC complaint process | Defective building work and directions to rectify | An administrative route with its own timeframes. Raise a complaint promptly after becoming aware of the defect |
Dispute clauses are not formalities.
Where the money actually is
A judgment against an insolvent contractor is an expensive certificate. Before we recommend a path, we map recovery.
- The counterparty’s solvency and asset position, including its exposure on other current projects
- Security held: bank guarantees, retention, cash security, and whether recourse is available on the facts
- Insurance: professional indemnity for consultants and certifiers, contract works and liability policies
- Statutory avenues, including the QBCC scheme where it applies to the work
- Parties above and below the counterparty in the chain, including guarantors
- Directors personally, where conduct or insolvent trading is in issue
Time limits
How we run these matters
Evidence first
Construction disputes are won on records. Programmes, site diaries, superintendent correspondence, inspection records, requests for information and variation directions decide outcomes far more often than legal argument does. We secure and organise the record early, while it still exists and while the people who created it are still available.
Experts, engaged properly
Endgame first
Court ready throughout
Most construction disputes resolve. They resolve on better terms when the other side can see the case is prepared to be run.
Urgent situations
In each of the following, the useful window is measured in days. Call before responding.
- A notice to show cause or a notice of intention to terminate has been issued or received
- Recourse to a bank guarantee or other security is threatened
- Access to site has been denied, or works have been suspended
- A contractor or subcontractor has entered administration or liquidation mid-project
- Evidence is about to be lost because works will be covered up or rectified by others
Why Boyle Litigation
- Litigation only. We do not draft construction contracts or administer projects. Every matter we take on is a dispute.
- Our Managing Partner is one of 33 Queensland Law Society Accredited Specialists in Commercial Litigation, from more than 14,000 practising solicitors in the state.
- Forum judgment. We advise on where a dispute should be run, which is the decision that most affects cost and outcome.
- Evidence discipline. Records secured early, experts briefed properly, cases built to be run.
- Direct access. The lawyer who assesses your position is the lawyer who runs the matter.
Frequently Asked Questions
How are building and construction disputes resolved in Queensland?
There are several pathways and the right one depends on the dispute. Payment disputes are usually dealt with through adjudication under the BIF Act or through subcontractors’ charges. Contract disputes about defects, delay, variations or termination are resolved through the dispute procedure in the contract, then in QCAT, in arbitration where the contract requires it, or in the Queensland courts. Many disputes settle at mediation once each side understands its position. Choosing the pathway early, rather than falling into one, has a significant effect on both cost and outcome.
Should my building dispute go to QCAT or a court?
QCAT has jurisdiction over building disputes under the QBCC Act and offers a lighter, faster and less expensive procedure, which suits many domestic and smaller commercial matters. A court is generally the better forum for substantial commercial claims, disputes involving multiple parties, matters requiring extensive disclosure or expert evidence, and any situation where urgent relief is needed. The relief you actually need is usually the deciding factor. For domestic building disputes, the QBCC dispute process generally has to be used before QCAT can be approached.
Do I have to follow the dispute procedure in my contract?
Usually yes, and it matters. Most standard form construction contracts require a notice of dispute, then a conference or a superintendent’s determination, before proceedings can be commenced. Those steps are frequently conditions precedent, which means a claim commenced without them can be stayed or dismissed and the costs of the exercise wasted. Arbitration clauses have the same effect on the choice of forum. The dispute clause should be read before any step is taken.
How long do I have to bring a construction claim in Queensland?
The limitation period for contract and most tort claims in Queensland is generally six years, but the date the period begins is often contested, particularly for latent defects where loss may be suffered well after completion. Contractual notice periods are much shorter and are the more common reason claims are lost. If you are close to a limitation date or have received a notice under the contract, take advice immediately rather than at the end of the process.
Can liquidated damages be claimed for delay?
Liquidated damages are recoverable where the contract provides for them, the delay is not covered by an extension of time to which the contractor was entitled, and the contractual preconditions have been met. Two issues decide most of these disputes: whether extension of time claims were properly made and properly assessed, and whether the rate reflects a genuine estimate of loss rather than operating as a penalty. Where the principal has itself contributed to the delay and the contract has no effective extension mechanism, the entitlement to liquidated damages can be lost altogether.
What can I do about defective building work?
The options include enforcing the contractual rectification and defects liability provisions, a complaint to the QBCC which can result in a direction to rectify, and a claim for damages representing the cost of rectification. Each has different timeframes and different evidentiary requirements, and the QBCC route in particular expects a complaint to be made promptly after the defect becomes apparent. Which combination to use depends on whether the builder is still solvent, still on site, and still willing to return.
Can the other party call on our bank guarantee?
It depends on the terms of the security and the contract. Some clauses permit recourse on a bare assertion of entitlement, others impose real preconditions. Where recourse is not permitted, urgent injunctive relief may be available to restrain it, but the application has to be brought before the money moves. If you have received notice that security will be called on, the window for doing anything useful is very short.
What happens if the builder goes into liquidation during the project?
Your position depends on what was secured before the appointment. Retention, bank guarantees, subcontractors’ charges given in time, and any statutory trust arrangements applying to the project all affect what can be recovered. Claims may also be available against directors, guarantors, or other parties in the chain, and insurance may respond in some circumstances. Early advice matters here more than anywhere else, because the practical options narrow quickly after an appointment.