name

Andrew Hales

Partner
Firm Logo

MinterEllison

Sydney, Australia
    Local Time: Monday 21:11

Practice Expertise

  • Construction
  • Litigation and disputes
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Areas of Practice

  • Construction
  • Litigation and disputes
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WSG Practice Industries

Profile

I enjoy the technical aspects of construction projects and working with clients to understand the commercial drivers behind the way in which they deliver projects. I regularly advise on live project issues in order to assist with effective contract administration, the implementation of dispute resolution strategies and the resolution of disputes through adjudication, executive negotiation, mediation, expert determination, arbitration and litigation.

I have advised clients in litigation to Court of Appeal level in Australia, New Zealand and the United Kingdom, and acted on domestic and international arbitrations seated in Sydney, Paris, London and Geneva spanning a number of industry sectors under the ACICA, ICC, LCIA and ICSID rules.

I have gained significant experience in construction and infrastructure disputes by acting on matters arising from the design, construction, operation or facilities management of commercial and residential buildings, mixed-use developments, residential aged care facilities, hospitals, correctional facilities, offshore wind farms, solar farms, oil and gas pipelines, combined cycle power plants, gas-fired power and desalination plants, natural gas processing plants, iron ore mining infrastructure, hydroelectric dams, roads, tunnels, bridges and railways in diverse project locations such as Australia, New Zealand, Kazakhstan, Turkey, Bulgaria, Italy, United Kingdom, Dubai, Oman, Kuwait, Nepal, Afghanistan and Ethiopia.

Career highlights

  • Acting on the defence of a cross-claim for damages arising from alleged mechanical defects in the ventilation system of a motorway tunnel in multi-party litigation in the Supreme Court of New South Wales.
  • Acting for the NSW Government in respect of an expert determination concerning the valuation of variations and delay costs arising out of a rail project in New South Wales.
  • Providing ongoing legal advice to a managing contractor on procurement, contract administration and dispute avoidance strategies during the construction of a high-end mixed-use commercial and residential development in Sydney.
  • Acting for a power and automation company in respect of disputes arising from its contract for the provision of equipment for a combined cycle power plant in the Northern Territory, including in respect of adjudication, Supreme Court and Court of Appeal proceedings.
  • Regularly advising clients on PPP projects, including advising a technology company in respect of a dispute regarding defective works and delay on a hospital project in Queensland and advising a contractor on a dispute involving the interpretation of a facilities management agreement for an Australian correctional facility.
  • Acting for a specialist joinery subcontractor on adjudication and subsequent Supreme Court of New South Wales proceedings concerning security of payment issues.
  • Acting in the leading case (MT Højgaard v E.ON [2014] EWHC 1088 (TCC); [2017] UKSC 59) on interpretation of contractual warranties regarding fitness for purpose, design life, service life and errors in an international design standard.
  • Acting for a Danish contractor in English High Court and Court of Appeal proceedings regarding the interpretation of variation provisions in a bespoke contract for the design, construction and installation of wind turbine generator (WTG) foundations for an offshore wind farm (MT Højgaard v E.ON [2014] EWCA Civ 710).
  • Acting on several large-scale complex international arbitrations arising out of major energy and infrastructure projects, including two consolidated ICC arbitrations which led to the successful resolution of disputes worth several billions of dollars for the state-owned operator of a major crude oil pipeline in the Caspian region, two ICC arbitrations for a South Korean EPC contractor regarding delay and disruption to the construction of power and desalination plants in Dubai and Kuwait, two ICC arbitrations for a state-owned EPC contractor arising out of the construction of the Baku-Tblisi-Ceyhan crude oil pipeline and an LCIA arbitration in connection with the design and installation of offshore WTG foundations.

Areas of Practice

  • Construction
  • Litigation and disputes

Articles

  • Construction Law Update July 2020

    In our July 2020 edition of CLU, we summarise decisions of the Supreme Courts of New South Wales, Queensland, Victoria and Western Australia, the Western Australia Court of Appeal and Victoria County Court. We also update you on recent and proposed changes to the Queensland and Western Australia security of payment legislation and amendments to the NSW strata building bond and defect inspection scheme under the Strata Schemes Management Act.

  • Revised SOP Amendment Bill overhauls entitlement to recover progress payments
    In response to significant stakeholder feedback, changes to the SOP Amendment Bill amending the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOP Act) passed through the NSW Legislative Council on 24 October 2018. The new amendments go further than some of the changes proposed in the earlier version of the bill released for consultation, primarily to sections 8 and 13, together with further refinements to the adjudication process and offences. On the other hand, some of the initial proposed changes have been removed from the bill. See our August 2018 edition of Construction Law Update for our earlier analysis of the bill and other amendments which remain unchanged.
  • Construction Law Update July 2021

    In our July 2021 edition of Construction Law Update (CLU), we cover decisions arising out of the courts in New South Wales, Queensland, South Australia, Victoria and Western Australia. We also cover relevant updates on the new security of payment regime enacted in Western Australia, the commencement of the Design and Building Practitioners Act 2020 (NSW), and various recent amendments to NSW building compliance legislation. 

  • Construction Law Update January February 2020

    In our first edition of CLU for 2020, we cover recent decisions from the District and Supreme Courts of New South Wales and Queensland.

     

  • Construction Law Update April 2020

    In our April 2020 edition of CLU, we summarise decisions of the Supreme Courts in the Australian Capital Territory, New South Wales, Queensland, the Northern Territory and Western Australia and the New South Wales Court of Appeal.

  • Security of payment roundup 2019
    A year of further change for security of payment regimes around the country.
  • Construction Law Update August 2020

    Our August 2020 edition of CLU includes case summaries for decisions arising out of the Supreme Courts of the Australian Capital Territory, New South Wales and Queensland and the New South Wales Court of Appeal. 

  • Construction Law Update September 2021

    In this edition of CLU, we cover decisions arising out of the Supreme Court of Western Australia, the New South Wales Supreme Court and Civil and Administrative Appeals Tribunal, and the Appellate, Supreme, District and Industrial Courts in Queensland.

  • Construction Law Update November/December 2019

     In our final bumper edition of Construction Law Update for 2019, we cover decisions from New South Wales, Queensland, Victoria and Western Australia. The New South Wales decisions consider compliance with contractual subcontracting provisions, compliance with security of payment legislation and the relationship between termination and contractual cure periods. The Queensland decisions reiterate the importance of establishing a causal link between the alleged action and the damage claimed in pings and remind us that in certain circumstances costs will not always follow the event. A recent decision in the Victorian Supreme Court serves as a reminder that settlement agreements can put your right to further claims at risk. The Western Australian Supreme Court affirms that global claims will not be permitted as a trojan horse for poorly ped claims and the court is not willing to prevent enforcement of a determination under the Construction Contracts Act 2004 (WA) unless it is in the balance of convenience to prevent payment.

     

  • Update: All construction sites to pause in Greater Sydney until 30 July 2021

    We explain the impact of the new restrictions on Greater Sydney construction sites, including practical and legal ramifications for builders and standing down workers.

  • Construction Law Update March 2020

    In our March 2020 edition of CLU, we cover a recent UK decision which is the first of its kind to deal with the impact of COVID-19 on our industry and, in particular, the statutory adjudication process.

  • Construction Law Update August 2021

    In this edition of CLU, we cover important decisions arising out of the Federal Court of Australia, the Appellate Courts in New South Wales and Queensland, the Queensland District Court and the Civil and Administrative Tribunals in New South Wales and Victoria.

  • Construction Law Update March & April 2021

    In this double edition of CLU, we cover cases arising out of the courts of New South Wales, Queensland, South Australia and Western Australia in March and April 2021. We also cover a recent legislation change in Victoria, which makes certain temporary measures enacted under COVID-19 related legislation permanent.

  • Construction Law Update July / August 2019

    In this combined July/August edition of our Construction Law Update we break down the most absorbing decisions from New South Wales, Queensland and the Northern Territory. We also look at two recent Federal Court decisions: one which considers the circumstances in which an agreement of a contractual nature will be binding and the other on whether a clause that excludes the recovery of costs resulting from delay or disruption will preclude the recovery of time-related costs for carrying out variations. 

  • Construction Law Update June 2020

    In our June edition of CLU we cover recent decisions from the Australian Federal Court, NSW Court of Appeal and Civil and Administrative Tribunal Appeal Panel, the Queensland and Victorian Supreme Courts and the County Court of Victoria.

  • Construction Law Update October - December 2021

    In this edition of CLU, we cover decisions arising out of the Federal Court of Australia, the New South Wales, Queensland and Victorian Appellate and Supreme Courts and the Civil and Administrative Appeals Tribunal in New South Wales and Queensland.

  • Construction Law Update September 2020

    Our September 2020 edition of CLU covers important decisions arising out of the Court of Appeal, Supreme Court and District Court of New South Wales and the Supreme Court and State Administrative Tribunal of Western Australia.

  • COVID-19 injunctions on recourse to security in construction contracts

    The full impact of COVID-19 on the infrastructure industry will take many months to fully understand. One thing is clear - the financial strain on contractors, principals, government bodies and the Australian economy as a whole is becoming evident very quickly.

     

  • Double Bill! New rules for NSW construction industry

    Two Bills mark a new era in the design and construction of buildings in NSW.

  • Bill proposes stricter obligations and penalties for NSW Security of Payment Act

    The NSW government has released a draft bill, the Building and Construction Industry Security of Payment Amendment Bill 2018 (NSW) (SOP Bill) proposing significant reforms to the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOP Act).

    If passed in its current form, the SOP Bill would create stricter compliance obligations for principals and head contractors as well as greater investigation and enforcement powers under the SOP Act.

  • Security of payment roundup 2020

    A comprehensive summary of the key security of payment decisions in 2020.

  • Construction Law Update June 2019

    This month’s edition of CLU covers recent decisions from New South Wales, Queensland, Victoria and Western Australia. We also showcase an important recent decision by the Court of First Instance in Hong Kong. Topics of interest include: the court's approach to 'other arrangements' under the security of payment legislation in New South Wales; the circumstances in which the court will grant an injunction to prevent a call on security in Queensland, or consider an owner to be 'in the business' of building domestic buildings in Victoria; licence obligations for electricians on renewables projects; and the importance of keeping records of pre-contractual negotiations in Western Australia.

  • Lendlease Engineering Pty Ltd v Timecon Pty Ltd [2019] NSWSC 685

    If you want security of payment, an 'other arrangement' must give rise to a legally binding obligation.

  • Construction Law Update November to January 2021

    In this edition of CLU, we cover important decisions arising out of the Federal Court of Australia, and the Supreme and Appellate courts in New South Wales, Northern Territory, Queensland and Victoria.

  • Construction Law Update September 2019

    In our September issue of CLU, we summarise the latest need to know legislative updates, including new proposed regulations for building certifiers under the Building and Development Certifiers Regulation 2019 (NSW) and Builder and Designer reforms under The Design and Building Practitioners Bill 2019. We also cover recent decisions arising out of the Supreme Courts of the Australian Capital Territory, New South Wales and Queensland, as well as the New South Wales and Queensland Courts of Appeal.

  • Construction Law Update October 2020

    Our October 2020 edition of CLU covers important decisions arising out of the courts of the Australian Capital Territory, New South Wales, Queensland and South Australia.

  • Construction Law Update October 2019

    In our October edition of CLU, we cover the decisions you need to know about from the Federal Court and High Court, The Queensland Court of Appeal and the New South Wales, Northern Territory, Queensland, South Australian and Victorian Supreme Courts. Cases that may interest you include decisions on: the rule that someone who is not a party to a contract is not bound by or able to enforce it; circumstances where quantum meruit claims are available; the use of an unenforceable 'no injunction' clause to construe a contract; and the importance of parties having a proper ground to terminate a contract. In the Security of Payment space, we provide you with an update on the importance of giving reasons in a payment schedule, and the validity of an email purporting to be a payment schedule. We also cover decisions that clarify a contractor's entitlement to pursue unpaid payment claims in the final payment claim and a change to the legal position in Victoria with respect to the early service of payment claims. If you would like to discuss anything covered in this update, or want to see something in particular in next months update, please get in touch!

     

  • NSW building regulations due to commence on 1 July 2021

    Here we provide a 7-step summary of the latest changes in NSW to impact buildings that are Class 2, or contain a Class 2 part.

  • NSW Government crackdown on the building industry

    The NSW government announced on 10 February 2019 its intention to introduce a wide ranging raft of reforms to the NSW building industry that seek to improve Australian building safety and compliance.

  • Can I suspend my construction contract even if there is no suspension clause?

    Principals may wish to postpone a project which is imminent or has already commenced. This article explores the issues to be mindful of when considering suspending a construction contract from the principal's perspective and how to effect a suspension of a contract when there is no express right to suspend works for convenience.

  • Construction Law Update May & June 2021

    In this edition of CLU, we cover important decisions arising out of the High Court of Australia, the Supreme and Appellate courts in New South Wales and Queensland and the Queensland District Court.

  • Construction Law Update May 2020

    In our May edition of CLU, we provide an update on the changes to the National Construction Code under the National Construction Code 2019 Amendment 1. We also cover decisions made by the New South Wales, Queensland, South Australian and Victorian Supreme Courts, as well as the NSW Court of Appeal, South Australian Federal Court and the Victorian Civil and Administrative Tribunal.

  • Construction Law Update February 2021

    In this edition of CLU, we cover important decisions arising out of the courts of New South Wales and Queensland.

  • NSW building regulations due to commence on 1 July 2021 have been released

    Here we summarise the key takeaways and what you need to do to prepare.

  • NSW SOP mining exception narrowed

    A case highlighting how the mining exception continues to be taken narrowly.

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