No_2_August_1964 — Page 106

The following is a precis of an address delivered at the Second Conference of the Building Science Forum of Australia held in Sydney last year.

Building

TIME was when the building in-

dustry could get along very well without resort to litigation or arbitra- tion, or the lawyers themselves, in all but the exceptional cases.

At the present time, however, for reasons which I shall attempt to sug- gest later, parties to building contracts have perhaps become more conscious of their legal rights and obligations. and a tendency has developed to re- sort to litigation or arbitration more frequently than of yore. There are many who would say perhaps, in the language of the prophet, "Woe unto you, ye lawyers! for ye lade men with burdens grievous to be borne, and ye yourselves touch not the burdens with one of your fingers." But for this re- cent development of litigious spirit the lawyers are not entirely to blame.

There are some of course who re- gard the legal profession simply as a necessary evil, but I for one believe that the lawyer has a constructive role to play. I should wish in this address to make some suggestions as to how law and the lawyers may help in the solution of the new problems which are now presenting themselves.

CHANGING CONDITIONS

New wine cannot be put into old wine skins; the old forms of contract will no longer serve in the modern age, and new forms of legal expres- sion and indeed new methods for the legal solution of disputes will need to be worked out to accord with the changes in building an engineering practice.

The real reason, I suggest, why we are looking with new eyes at the building contract stems from the de- velopment of new building materials and techniques, new methods of working (particularly in the employ- ment of hosts of sub-contractors and other specialists) and new methods of organisation, as the creative inven- tion of man continues to outstrip his ability to give it practical expression.

All these things give rise to new problems which are reflected in our approach to the building contract. Either one attempts to attach

100

new

Contracts and the Law

EDWARD ST. JOHN, Q.C.

meaning and significance to the old forms or, as they begin to show signs of strain, one attempts to solve the problems by the adoption of new forms of contract, or at any rate, new clauses seeking to elaborate, or to cut down or qualify the old.

BUILDING CONTRACTS

of

The building contract may course take many forms the lump sum contract; cost plus overhead and profit; cost plus fixed fee; the schedule of rates contract, perhaps better known in England than in Aus- tralia; the negotiated contract, which itself may take any of these forms: and now more recently, there is the tendency to let the work off in se- parate contracts, or the so-called "co- contracts" each variation represent- ing an attempt to accommodate the form of the building contract to changing economic circumstances, the peculiar circumstances of individual cases, or the conditions obtaining at a particular time. And of course each of the forms I have mentioned is itself subject to infinite variation by departure from common form in one respect or another if not by amendment of the form itself, then by means of qualifying clauses written into the specification.

NEW FORMS

owner

It could be said of the Australian industry at the present time, and no doubt in greater or lesser extent of the building industry in most coun- tries of the Western world, that the old relationships between first, the or proprietor, secondly, the builder or contractor, thirdly, the ar- chitect, engineer and other consul- tants, fourthly, the sub-contractor or supplier of materials, and fifthly, the building workmen, or any two of them, are showing signs of stress and strain, whilst the new relationships which are developing are not yet shaken down or become firmly es- tablished, and people are still uncer- tain as to the extent of their rights and obligations in a rapidly chang- ing environment. It can be for the building industry an exciting new

EDWARD St. John, Q.C, was edu-

cated at the Armidale High School and the University of Sydney. He graduated in Arts in 1937, and emerged from the Law School with Honours at graduation in 1940. During the War he served in Australia, the Middle

East and New Guinea

Appointed Queen's Counsel in 1956,

he was

for several years Challis Lecturer in Legal Interpretation at the University of Sydney.

He was a delegate at the First Commonwealth and Empire Law Con- ference in London in 1955, and an Official Observer at the famous 1959 South African Treason Trial. 1959 and 1962 he attended World Con- gresses of the International Commis- sion of Jurists at New Delhi and Rio de Janerio respectively.

era, presenting great opportunities, but accompanied by new challenges and novel difficulties.

The law too must play its part in accommodating itself to the new era: in particular it must, through a sym- pathetic understanding of the

new

THE HONG KONG & FAR EAST BUILDER--VOLUME 19, NUMBER 2