The Value is Whatever I Say It Is: Determinations by the principal under construction contracts

Trevor Thomas
May 2008

A paper based on the Highly Commended entry in the Hudson Prize essay competition 2007.

When a construction employer, or his representative, is given power to make determinations affecting the rights of the other party to the contract to payment, under what circumstances will (or should) those determinations, in the form of certificates, definitively determine the rights of the parties? Trevor Thomas revisits that well-known debate from a perspective which contrasts the evolution of English law with recent case law developments in Australia.
Trevor Thomas
May 2008

A paperbased on the Highly Commended entry in the Hudson Prize essay competition 2007.

When a construction employer, or his representative, is given power to make determinations affecting the rights of the other party to the contract to payment, under what circumstances will (or should) those determinations, in the form of certificates, definitively determine the rights of the parties?Trevor Thomas revisits that well-known debate from a perspective which contrasts the evolution of English law with recent case law developments in Australia.
Introduction - Is there an express term that a determination is to be final and binding? - Can it be inferred that a determination is to be final and binding? - Provisional or final determination? - The power to open up, review and revise a determination - Presumption that rights not abandoned - The parties' commercial objective - Conclusions.

The author:Trevor Thomas BEng, MEng, LLB, LLM is a solicitor with Clayton Utz in Melbourne, Australia and is presently undertaking a Master of Laws by thesis at the University of Melbourne in the field of relationship contracting for major projects.

Text 13 pages.
PDF file size: 129k