EA Books

Construction Claims, 2nd edition
by Philip Davenport
2006, ISBN: 1862876088, 319pp, $66.00

Philip Davenport’s “Construction Claims” Second Edition is a tour de force of the significant issues informing modern construction law in Australia today. Mr Davenport drills deeply into the law and controversies surrounding claims in the construction industry in a very robust style of writing well illustrated by decided cases in the area. The author is obviously highly knowledgeable and experienced in construction law and has quite rightly recognized the need for clarity and precision in this area which has attracted large numbers of non-legal claims consultants, many of whom advance claims without due regard to or understanding of the basic legal principles on which construction claims must be based.

One particularly refreshing aspect of this book is that it brings a high level of rigor to the practise of preparing and evaluating construction claims which would benefit many practitioners in the construction industry. It also demystifies terms and claims which are commonly misunderstood and misused. For example, quantum meruit claims are clearly explained and the allowable circumstances of their use well illustrated. One of the most prolific construction claims, the claim for variations, is very skilfully covered in Chapter 5 although the discussion does become a little esoteric at times.

One distracting aspect of the book is that the author indulges himself in long discourses on what appear to be pet topics from time to time with the result that the reader can be diverted from the main thrust of the subject matter. For example, the 17 page discourse on the “Hudson formula” might well have been reduced by half or more, particularly as the book is expressed to be targeted at students for whom such an in depth analysis of that formula is more academic than practical.

On that point, the book suffers as a textbook in two ways. First, the author frequently expresses subjective opinions which ought not appear unqualified in a student text. For example, the author’s treatment of global claims is disparaging and somewhat confusing. It is reasonably well established that a global claim is a legal claim notwithstanding that it is a difficult claim to succeed upon. Frequently a contractor will have no option but to make a global claim and the law recognises this whilst also acknowledging the evidentiary difficulty such a claim necessarily involves. The author actually states that global claims have no place in the law!

Also, the author is obviously a strong supporter of the recent legislation throughout Australia and New Zealand providing security of payment to contractors. He argues the merits of the adjudication process at every available opportunity but sometimes at the expense of objectivity. For example, the author ascribes the Principal’s loss in the Contrax case at page 147 to the courts’ (erroneous, in the author’s view) allowance of adjudications of global claims rather than the operation of the legislation itself which, this reviewer submits with due respect, was the real cause of the Principal’s loss. This reviewer would prefer to have read a more balanced discussion of this legislation, weighing the benefits of the quick result against the limitation on natural justice accorded to principals within the adjudication process.

The second criticism for using this book as a text for students is the author’s critical references to legal practitioners and courts working in the area of construction. In this reviewer’s opinion, it does not assist a student’s understanding of the objective law if their source of instruction is dismissive or cynically critical of the very system from which the law is found.

Subject to those few criticisms, however, this book is a masterful treatment of the broad topic of construction claims and is recommended to practitioners in the area. However, students should approach the text with an open mind. The book would be improved as a textbook if the author clearly stated where he offers mere opinion as distinct from legal proposition.

Reviewed by Bill Blake, Clarke Kann Lawyers, Brisbane, QLD.

Construction Claims is available form EA Books http://www.engineersmedia.com.au/bookshop