Frequently Asked Questions

Construction law is a complex, highly specialised field touching every aspect of the building and infrastructure industry. Whether you are a homeowner renovating, a subcontractor chasing payment, or a developer managing a multi-million-dollar project, understanding your legal rights and obligations is essential to protecting your interests. At Baker Merz, we have spent more than three decades advising clients across Australia on construction law, from contract negotiation through to adjudication, litigation, and international arbitration. The questions below reflect issues our clients raise daily. They are general guidance only, and we recommend tailored legal advice for your specific circumstances. Contact our team on 1300 710 864 to discuss your matter in confidence.

General Construction Law Questions

What does a construction lawyer do?

A construction lawyer is a legal specialist who advises and represents clients on matters arising throughout the lifecycle of building and infrastructure projects. Unlike generalist lawyers, construction lawyers possess deep knowledge of the construction industry — its practices, contracts, regulations and commercial realities. At Construction.Lawyer, our team goes further: we are dual-qualified engineer-lawyers who have actually worked on construction projects, giving us an understanding that no ordinary lawyer can match. A construction lawyer can assist you at every stage of a project's lifecycle — from pre-contract review and negotiation, through ongoing contract administration and payment claims, to dispute resolution via adjudication, mediation or litigation, and ultimately to claims preparation, arbitration and expert witness services. Our areas of specific expertise include contract review and drafting under AS4000, AS2124, FIDIC and NEC4, building dispute resolution, Security of Payment claims under the BIF Act, debt recovery, CPM delay analysis using Primavera P6, and international arbitration. See our Disputes & Litigation services for more information.

When should I engage a construction lawyer?

The best time to engage a construction lawyer is before you sign a contract. Preventative legal advice is always more cost-effective than dispute resolution. A thorough contract review before signing can identify risks that, if addressed through negotiation or amendment, prevent disputes from arising at all. However, we can assist at any stage of a project. During the project, we can provide contract administration advice, assist with payment claim preparation and variation documentation, advise on extension of time claims and help you maintain proper records to protect your rights. When a dispute arises, we can negotiate settlements, represent you in adjudication or court proceedings, and prepare substantiated claims for delay, disruption or variations. The critical point is this: the sooner you seek advice, the more options you have. Delaying legal advice often narrows your options, increases your costs, and can result in missed deadlines that extinguish your rights permanently — particularly under the strict timeframes of the Building Industry Fairness (Security of Payment) Act 2017. Contact us for a free initial consultation.

How are you different from other law firms?

The critical difference is that our lawyers are also qualified engineers, quantity surveyors and project managers. Most construction law firms need to engage external experts to understand the technical aspects of your project or dispute. This adds cost, introduces delays and creates coordination challenges. We do not need external experts — because we are the experts. When the other side raises technical arguments about construction methodology, delay analysis or defect causation, we understand those arguments immediately and can respond with technical and legal precision. We have 30+ years of first-hand project experience across mining, infrastructure, rail, renewables and commercial building. We are the only RICS-regulated law firm in Australia. And we are the only firm where your lawyer can also read your Primavera P6 schedule, interpret your construction drawings and calculate your delay damages. Learn more about our firm.

What is Security of Payment?

The Building Industry Fairness (Security of Payment) Act 2017 (Qld) — commonly known as the BIF Act or SOP Act — is one of the most powerful tools available to contractors and subcontractors for securing payment. The Act creates a statutory right to progress payments that exists independently of your contract. Even if your contract is silent on progress payments, or contains "pay when paid" provisions (which are void under the Act), even if the other party disputes your entitlement to payment, you still have a legal entitlement to be paid. The BIF Act establishes a framework for payment claims, payment schedules and adjudication — a fast-track dispute resolution process that typically produces a binding determination within approximately 60 days, compared to one to two years through court litigation. Strict timeframes apply at every stage of the process, and missing a deadline can extinguish your rights. Our Security of Payment practice has helped hundreds of contractors and subcontractors recover payment through this regime. See our Security of Payment services for more information.

How does Adjudication work?

Adjudication under the BIF Act is a fast-track, interim dispute resolution process designed to ensure cash flow continues during construction projects. The process begins with the service of a payment claim on the respondent. If the respondent fails to provide a payment schedule, or provides a schedule paying less than the amount claimed, the claimant may lodge an adjudication application within strict timeframes — typically 20 business days from the payment schedule due date. An authorised nominating authority appoints an adjudicator, the respondent may provide a response, and the adjudicator makes a determination that is binding and enforceable as a judgment debt. The entire process from application to determination takes approximately 60 days — a fraction of the time required for court proceedings. We represent both claimants and respondents in adjudication, and our engineer-lawyer qualifications give us a significant advantage in presenting complex technical arguments persuasively. See our Adjudication services for more information.

What is the QBCC?

The Queensland Building and Construction Commission (QBCC) is the statutory regulator overseeing the building and construction industry in Queensland. Established under the Queensland Building and Construction Commission Act 1991, the QBCC licenses builders, contractors, and tradespeople, administers the Home Warranty Insurance Scheme, provides dispute resolution for domestic building disputes, and enforces compliance with building standards. Any person or company undertaking building work in Queensland above specified thresholds must hold an appropriate QBCC licence, and the Commission has broad investigative and disciplinary powers including issuing show cause notices, suspending or cancelling licences, directing licensees to rectify defective work, and imposing financial penalties. The QBCC operates the Queensland Home Warranty Scheme, which provides insurance coverage for homeowners against defective work by licensed contractors, with coverage limits varying by work type and value. For homeowners experiencing issues, the QBCC provides a complaints process that can result in directions to rectify, disciplinary action, and referrals to the Queensland Civil and Administrative Tribunal (QCAT) if disputes cannot be resolved through conciliation. Navigating QBCC processes is essential for builders and homeowners alike, as the Commission's decisions can have significant consequences. See our QBCC services for more information.

Do I need a construction lawyer for a small residential project?

Yes, engaging a construction lawyer for even a modest residential project can save significant money, time, and stress. Many homeowners assume legal advice is only necessary for large commercial projects, but residential building disputes are common and can be financially devastating. A defective slab, disputed variation, or builder who abandons the project can result in costs far exceeding the original contract price. Having your contract reviewed before signing is one of the most cost-effective investments you can make. At Baker Merz, we offer fixed-fee contract reviews for residential projects, so you know the cost upfront. During review, we examine contracts for ambiguous scope descriptions, one-sided variation clauses, inadequate liquidated damages, unfair payment terms, and missing statutory protections. We ensure compliance with the Queensland Building and Construction Commission Act, including mandatory cooling-off periods, insurance obligations, and disclosure requirements. If a dispute arises, early legal advice helps you respond appropriately, preserve your rights, and avoid actions that could weaken your position in subsequent QBCC complaints or tribunal proceedings. The cost of review is invariably a fraction of potential dispute costs, and peace of mind from knowing your contract is fair and legally sound is invaluable. Whether building, renovating, or extending, have your contract reviewed by a specialist before signing. See our Contract Review services for more information.

How much does a construction lawyer cost?

The cost depends on the nature and complexity of the matter, the lawyer's experience, and the fee structure agreed. At Baker Merz, we offer both hourly rate engagements and fixed-fee arrangements with transparent costs from the outset. For discrete services such as contract reviews, standard adjudications, document preparation, and certain debt recovery matters, we offer fixed-fee arrangements giving clients certainty and budget control. For complex matters such as litigation or arbitration, hourly rates are typically more appropriate because the scope cannot be precisely defined at commencement. Factors affecting cost include document volume, number of parties, technical complexity, whether expert evidence is required, and lawyer seniority. We understand cost is a significant concern, particularly for subcontractors and homeowners on tight margins. We offer a free initial consultation allowing you to discuss your matter, understand options, and obtain a cost estimate before committing to expenditure. In our experience, the cost of timely legal advice is almost always substantially less than the financial exposure of an unmanaged dispute or unfavourable contract. We encourage viewing legal advice as an investment in risk management and project success. Contact us for a fee estimate.

Contract Questions

Should I have my construction contract reviewed before signing?

Absolutely. Having your construction contract reviewed before execution is one of the most important steps to protect your interests and avoid costly disputes. The majority of construction disputes arise from poorly drafted contracts that fail to address practical realities. Ambiguous scope descriptions, unfair risk allocations, inadequate variation procedures, and one-sided termination clauses are common problems we identify. When we review a contract, we examine every clause through the lens of your specific project, role, and risk tolerance. We identify hidden liabilities, flag potentially unenforceable provisions, suggest amendments to balance risk allocation, and advise on protective mechanisms including security instruments, insurance requirements, and dispute resolution pathways. We also check compliance with mandatory legislative requirements including the Queensland Building and Construction Commission Act and the Building Industry Fairness (Security of Payment) Act. The cost of a professional contract review is a small fraction of the legal fees associated with even a minor dispute, not to mention indirect costs of delays, disrupted relationships, and reputational damage. At Baker Merz, we offer fixed-fee contract reviews for standard form and bespoke agreements. See our Contract Review services for more information.

What types of construction contracts do you review?

Our team has extensive experience reviewing every major construction contract used in Australia and internationally. For Australian commercial projects, we regularly review Standards Australia contracts including AS4000 General Conditions, AS2124 General Conditions, and AS4902 Design and Construct. We advise on Housing Industry Association (HIA), Master Builders Association (MBA), and Australian Building Industry Contracts (ABIC) suites, commonly used for residential and smaller commercial projects. For international projects, we have deep expertise in the FIDIC suite including the Red Book, Yellow Book, and Silver Book, as well as NEC4 and the JCT suite. We frequently review bespoke contracts drafted by principals to impose custom risk allocations or incorporate project-specific requirements. Each contract form has its own characteristics, risk allocation philosophy, and procedural mechanisms. Our dual-qualified engineer-lawyers bring a unique perspective, identifying not only legal risks but also practical issues related to programming, quality assurance, and technical compliance that generalist lawyers may overlook. Whether you are a principal, head contractor, subcontractor, or consultant, we can review, advise on, and negotiate your contract.

What is a variation in a construction contract?

A variation is a change to the scope of work originally agreed under a construction contract. Variations are inevitable because designs evolve, site conditions differ from expectations, and principals change requirements. Under most standard form contracts, the superintendent or principal can direct variations, and the contractor is generally obliged to carry out varied work provided the direction is within the contract scope. Variations can include additions, omissions, changes in material quality, changes to work sequence or timing, and design alterations. A critical distinction exists between directed variations, formally instructed by the principal, and constructive variations, which arise where the contractor is entitled to treat certain conduct as a deemed variation, such as late provision of design information or differing site conditions. Most contracts impose strict notice requirements on contractors claiming variations, and failure to comply can result in losing the right to additional payment. Valuation is typically based on contract rates where applicable, or on a fair and reasonable basis where no rate exists. Proper documentation and timely notification are essential to avoiding disputes. We strongly recommend both principals and contractors maintain detailed records of all variation-related correspondence, directions, and cost calculations throughout the project.

What are liquidated damages?

Liquidated damages are a pre-agreed sum in a construction contract that the contractor pays the principal for each period by which practical completion is delayed beyond the contractual date. Their purpose is to provide a genuine pre-estimate of loss from late completion, avoiding the need for the principal to prove actual losses. For liquidated damages to be enforceable under Australian law, the amount must represent a genuine pre-estimate of probable loss at contract formation, not a penalty designed to punish breach. If a court determines the clause is a penalty, it will be unenforceable, and the principal will be limited to claiming actual proven losses. Common components include additional financing costs, extended site supervision, lost rental income, extended consultant fees, and delayed revenue. Enforceability is frequently challenged, and courts examine the relationship between the stipulated sum and possible losses, bargaining power, and whether the same sum applies to trivial and serious breaches. At Baker Merz, we advise both principals and contractors on drafting, negotiating, and enforcing liquidated damages provisions, ensuring our clients' interests are protected regardless of which side of the contract they occupy.

What is practical completion?

Practical completion is a pivotal milestone marking the point at which works are complete except for minor defects that do not prevent the facility from being used for its intended purpose. While no universal statutory definition exists, the concept is well developed in Australian case law and standard form contracts. Under AS4000, practical completion occurs when works are complete and obligations substantially performed, except for minor omissions and defects not preventing reasonable use. Criteria typically include completion of all substantial work, compliance with testing and commissioning requirements, submission of documentation such as as-built drawings and manuals, and rectification of all defects other than minor items listed on a defects schedule. Once certified by the superintendent, several important consequences follow: the defects liability period commences, half of retention monies are typically released, liability for liquidated damages ceases, and risk of loss generally passes to the principal. Disputes about practical completion are common, particularly where the principal contends outstanding defects are more than minor, or incomplete documentation prevents beneficial occupation. Understanding the practical completion criteria in your contract and carefully managing the certification process is essential to avoiding disputes at this critical milestone.

What is an extension of time (EOT)?

An extension of time is an additional period granted to the contractor to complete works beyond the original completion date, without liability for liquidated damages during the extension period. EOTs are critical for fairly allocating delay risk between principal and contractor. Under most standard contracts, contractors can claim extensions for qualifying delay events including variations, latent conditions, delays in statutory approvals, inclement weather exceeding historical averages, principal-directed suspension, and delays caused by the principal's separate contractors. Most contracts impose strict notice requirements, requiring written notice within specified days of becoming aware of the delay, followed by a detailed claim demonstrating causal linkage between the delay event and critical path impact. Assessment typically involves Critical Path Method analysis examining whether the delay affected critical path activities. At Baker Merz, our dual-qualified engineer-lawyers handle both legal and technical aspects of EOT claims, preparing and defending claims using Primavera P6 and Microsoft Project. See our CPM Delay Analysis services for more information.

What happens if my contract doesn't have a written variation clause?

If your contract lacks a written variation clause, parties' rights will be determined by common law and applicable statutory provisions. Under common law, a contractor is generally not obliged to perform work outside the originally agreed scope, and if additional work is requested, the contractor may be entitled to payment on a quantum meruit basis, a reasonable sum for work performed. However, relying on common law rights is risky and uncertain. Without a contractual variation mechanism, disputes arise about whether work was truly outside scope, what constitutes reasonable valuation, and whether the contractor was obliged to perform before payment. The Building Industry Fairness (Security of Payment) Act 2017 may provide a statutory basis for claiming payment for varied work, but absence of a clear contractual framework makes enforcement challenging. If the contract is oral or partly written, evidentiary disputes are almost inevitable. We strongly advise against entering construction contracts lacking clear written terms for variations, payment, and dispute resolution. If you are already in such an arrangement, prompt legal advice is essential to understand your rights and document the agreed scope and changes as thoroughly as possible.

Can I terminate my construction contract?

Termination is a serious step requiring careful legal analysis, as wrongful termination can constitute repudiation exposing the terminating party to substantial damages. Grounds for termination depend on contract terms and applicable law. Most standard contracts specify grounds including failure to perform obligations after notice, persistent breach, insolvency, and abandonment. At common law, termination is available for repudiatory breach, where one party demonstrates by conduct an intention no longer to be bound by the contract. Frustration is another doctrine that may end a contract where an unforeseen event makes performance impossible, though this is rare in construction. Some contracts include termination for convenience clauses allowing one party, typically the principal, to terminate without cause upon notice and compensation. The termination process must be strictly followed, including required notices, opportunities to remedy breaches, and compliance with dispute resolution procedures. Before terminating any construction contract, seek specialist advice to assess whether valid grounds exist, whether correct procedure has been followed, and what the financial and practical consequences are likely to be.

Payment and Debt Recovery

What should I do if I haven't been paid for construction work?

If you have not been paid for construction work, the steps depend on the circumstances, contract terms, and jurisdiction. First, review your contract to confirm payment terms, conditions precedent, and dispute resolution procedures. Gather all supporting documentation including invoices, payment claims, timesheets, delivery dockets, and correspondence demonstrating work performed and amounts owing. If the debt falls within the statutory framework, your most powerful remedy is Security of Payment legislation. In Queensland, the Building Industry Fairness (Security of Payment) Act 2017 provides a statutory right to progress payments and rapid adjudication. The process involves serving a payment claim, waiting for a payment schedule, and if payment is not made, applying for adjudication. If the respondent is a company with no genuine dispute about the debt, consider issuing a statutory demand under the Corporations Act 2001, giving the company 21 days to pay or face a presumption of insolvency. For larger debts or complex disputes, litigation or arbitration may be appropriate. Prompt action is critical because statutory timeframes are strict and delay can extinguish valuable rights. Contact a construction lawyer as soon as payment becomes overdue. See our Debt Recovery services for more information.

How does the Security of Payment process work?

The Security of Payment process in Queensland operates under the Building Industry Fairness (Security of Payment) Act 2017 and follows a specific sequence with strict timeframes. First, the claimant serves a payment claim on the respondent on or from a reference date, typically the date specified in the contract or the last day of the month. The claim must identify the construction work, state the amount claimed, and indicate it is made under the Act. Second, the respondent has ten business days, or a shorter contract period, to serve a payment schedule identifying the claim and stating the proposed amount. If less than claimed, reasons must be provided. Third, if the respondent fails to provide a schedule on time, or pays less than the scheduled amount, the claimant may apply for adjudication within strict timeframes, typically 30 business days. Fourth, an adjudicator is appointed by an authorised nominating authority, and the respondent can lodge a response. The adjudicator determines the matter within ten business days. The determination is binding and enforceable as a judgment debt through the courts. The entire process from payment claim to enforceable determination typically takes approximately 60 days, making it one of the most effective debt recovery tools for construction industry participants.

What is a payment claim?

A payment claim is a formal document served under the Building Industry Fairness (Security of Payment) Act 2017 to claim a progress payment for construction work or related goods and services. The requirements for a valid payment claim are prescribed by the Act and must be strictly complied with. The claim must be in writing, identify the construction work, state the amount claimed, and indicate it is made under the Act. It must be served on or from a reference date and addressed to the respondent in accordance with contract or Act service provisions. A payment claim can include the value of work performed, variations, interest on overdue payments, and materials supplied but not yet incorporated. The claim should be supported by sufficient detail and evidence including progress reports, timesheets, photos, and correspondence. A defective payment claim may be invalid, and serving an invalid claim can have serious consequences including loss of statutory rights. We recommend having payment claims prepared or reviewed by a construction lawyer, particularly for significant amounts. A properly prepared claim maximises recovery prospects through adjudication and pressures the respondent to pay promptly or provide detailed reasons for any dispute.

What is a payment schedule?

A payment schedule is a formal response served under the Building Industry Fairness (Security of Payment) Act 2017 in reply to a payment claim. It serves as the respondent's opportunity to indicate how much they will pay and to provide reasons if paying less than claimed. The respondent must provide a payment schedule within the earlier of the contract period or ten business days. The schedule must identify the payment claim and state the proposed amount. If the scheduled amount is less than claimed, reasons must be provided with sufficient detail for the claimant to understand the respondent's position. These reasons form the foundation of the respondent's case if adjudication proceeds. Failure to provide a schedule within time has serious consequences: the respondent becomes liable for the full claimed amount, and the claimant may sue for the debt, apply for adjudication, or in certain circumstances suspend work. For respondents, preparing a thorough schedule is essential because the adjudicator's jurisdiction is generally limited to reasons stated in the schedule, meaning new reasons cannot be raised during adjudication. At Baker Merz, we assist both claimants and respondents with preparing and reviewing payment claims and schedules to ensure compliance and maximise favourable outcomes.

How long does adjudication take?

Adjudication under the Building Industry Fairness (Security of Payment) Act 2017 is designed to be rapid, with the entire procedure from application to determination typically taking approximately 60 days. The process begins with lodging an adjudication application within 30 business days of the later of the due date for payment or receipt of a payment schedule. The application is lodged with an authorised nominating authority, which appoints an adjudicator within four business days. The adjudicator decides whether to accept the application within days. If accepted, the respondent has ten business days, or five business days after receiving the application, whichever is longer, to lodge a response. The adjudicator must make their determination within ten business days of the response period expiry or response receipt, extendable by up to 15 business days in complex matters with claimant agreement. The determination states the amount payable, payment due date, and interest rate on overdue amounts. It is binding and enforceable as a judgment debt. Strict timeframes mean both parties must act promptly and be well-prepared, as opportunities for delay or procedural manoeuvring are limited.

What is a statutory demand?

A statutory demand is a formal mechanism under the Corporations Act 2001 for demanding payment of a debt from a company. It is one of the most powerful creditor tools because failure to comply within 21 days creates a presumption of insolvency, which can support a winding up application. To issue a statutory demand, the debt must be due and payable with no genuine dispute about existence or amount. The demand must be in prescribed form, specify the debt and amount, and require the company to pay or secure the debt within 21 days. It must be accompanied by an affidavit verifying the debt, unless it is a judgment debt. If the company fails to pay or secure within 21 days and does not apply to set aside the demand on grounds such as genuine dispute or offsetting claim, the creditor can apply to wind up the company. Because statutory demand consequences are severe for the debtor and strict requirements apply for validity, demands must be prepared and served correctly. A defective demand may be set aside by the court, exposing the creditor to costs orders. At Baker Merz, we advise creditors on strategic use of statutory demands and debtor companies on response options.

Can I claim interest on late payments?

Yes, you may be entitled to claim interest on late payments under your contract and applicable legislation. Most well-drafted contracts specify an interest rate payable on unpaid amounts after the due date, typically expressed as a percentage above the Reserve Bank cash rate, accruing daily until payment. If your contract does not specify a rate, or if you operate under an oral contract, you may claim interest under the Building Industry Fairness (Security of Payment) Act 2017. Section 77 provides that interest is payable on unpaid progress payments from the date due until paid, at the greater of the contract rate or the prescribed rate, currently 10 per cent simple interest per annum. Interest awarded by an adjudicator forms part of the adjudicated amount and can be enforced as a judgment debt. Courts also have discretion to award interest on judgment debts and litigation awards under the Uniform Civil Procedure Rules. If experiencing late payment, quantify the interest accruing and include it in payment claims and adjudication applications. At Baker Merz, we routinely calculate and claim interest on behalf of clients, ensuring every dollar owing is recovered.

What if the other party is insolvent?

If the other party becomes insolvent, your recovery options depend on your relationship, security held, and the insolvency process stage. First, consider whether you are a secured or unsecured creditor. Secured creditors, such as those holding registered interests under the Personal Property Securities Act 2009, generally rank ahead of unsecured creditors in winding up. If you have supplied goods and retained a security interest, you may enforce that security. For unsecured creditors, recovery prospects are more limited. If the debtor is a company, you may issue a statutory demand leading to winding up. Once a liquidator is appointed, you must lodge a proof of debt and may receive a dividend, though in construction insolvencies unsecured creditors often receive little. Subcontractors in Queensland have additional protections under the Building Industry Fairness (Security of Payment) Act 2017, including the right to make a subcontractors' charge over monies owed by the principal to the head contractor, and the trust account framework requiring head contractors to hold retention amounts on trust. If concerned about a party's solvency, seek early advice. Steps to secure your position may include requiring additional security, registering on the Personal Property Securities Register, or exercising contractual rights to suspend work or terminate.

Disputes and Litigation

What are my options for resolving a building dispute?

If you are in a building dispute, several resolution options exist, and the most appropriate depends on the dispute nature, amount, contractual provisions, and party relationships. The first and most cost-effective option is direct negotiation, where parties communicate to reach a mutually acceptable resolution without third-party involvement. Negotiation preserves relationships and can occur at any stage. If negotiation is unsuccessful, mediation is a voluntary process where an independent mediator facilitates discussions to help parties reach settlement. Mediation is highly effective in construction disputes because it allows creative solutions that courts cannot impose, and it is confidential and without prejudice. For payment-related disputes, adjudication under Security of Payment legislation provides a fast-track binding determination typically within 60 days. For complex technical disputes in large projects, arbitration offers a private binding process with an arbitrator, often with specialist expertise. Finally, litigation involves taking the dispute to court, necessary for matters requiring interim relief such as injunctions or where other methods fail. At Baker Merz, we advise clients on the most appropriate strategy and are experienced in all dispute resolution forms. See our Building Dispute Resolution services for more information.

What is QCAT and when does it apply?

The Queensland Civil and Administrative Tribunal (QCAT) is a statutory tribunal hearing civil disputes including domestic building disputes. QCAT's jurisdiction in building matters is established under the Queensland Civil and Administrative Tribunal Act 2009 and the Queensland Building and Construction Commission Act 1991. For domestic building disputes, QCAT can hear matters up to $100,000, though higher limits apply for certain defective residential construction claims. QCAT hears disputes between homeowners and builders, builders and subcontractors, and in certain circumstances owners and subcontractors. The process involves filing an application and response, followed by a compulsory conciliation conference where a tribunal member assists settlement negotiations. If unresolved, the matter proceeds to a hearing where evidence is presented and a binding decision made. QCAT is designed to be more accessible and less formal than courts, and parties can generally represent themselves, though legal representation is permitted in certain circumstances with leave. QCAT can order payment, direct work performance, award damages, and terminate contracts. Decisions can be appealed to the Queensland Court of Appeal on questions of law. At Baker Merz, we regularly represent clients in QCAT proceedings from strategy through to hearing.

How long does construction litigation take?

Construction litigation duration varies significantly depending on dispute complexity, amount, court, and party conduct. In Queensland's Magistrates Court, handling claims up to $150,000, matters typically proceed from commencement to trial within 12 to 18 months. In the District Court, for claims between $150,000 and $750,000, the timeline is typically 18 to 24 months. In the Supreme Court, for claims exceeding $750,000 or complex commercial matters, the process can take 24 to 36 months or longer, particularly with interlocutory disputes about discovery, expert evidence, or pleadings. Construction litigation often involves additional complexities extending timelines, including multiple expert witnesses in quantity surveying, engineering, programming, and building surveying, large documentary evidence volumes, and technical issues requiring detailed case preparation. Appeals add a further 12 to 24 months. While these timelines seem lengthy, most construction disputes settle before trial, and commencing proceedings often provides impetus for settlement. At Baker Merz, we take a strategic approach focusing on achieving the best outcome in the shortest practicable timeframe, through early settlement or determined advocacy at trial.

What evidence do I need for a construction dispute?

The evidence required depends on the issues, but construction disputes generally need comprehensive documentary and expert evidence. The most important evidence category is the contract itself, including all amendments, specifications, drawings, and schedules. Correspondence including emails, letters, meeting minutes, and site instructions establishes what was agreed, directions given, and disputes arising. Site diaries maintained by the contractor, superintendent, or project manager provide a contemporaneous record of events, weather, workforce numbers, and daily activities, often among the most persuasive evidence in delay claims. Photographs and video recordings substantiate claims about progress, defects, and site condition. Programmes and schedules, including baseline and all updates, are essential for extension of time claims and delay analysis. Financial records including invoices, payment claims, schedules, timesheets, and cost records are necessary for quantum claims. Many disputes require expert evidence on technical matters such as engineering standards, delay analysis, variation valuation, and defect causation and cost. At Baker Merz, we work closely with clients from the earliest stages to identify, preserve, and organise evidence, and our dual-qualified engineer-lawyers can critically assess expert evidence and provide expert analysis ourselves.

What is mediation?

Mediation is a voluntary, confidential, without-prejudice form of alternative dispute resolution where an independent mediator facilitates negotiations between disputing parties to help them reach a mutually acceptable settlement. Unlike a judge or arbitrator, a mediator does not impose a decision. The mediator creates an environment for constructive dialogue, helps parties identify interests and priorities, explores resolution options, and reality-tests each position's strengths and weaknesses. Mediation is well-suited to construction disputes because it preserves relationships, maintains confidentiality, and allows creative settlements that courts cannot order, such as ongoing working relationships or adjusted payment terms. The process typically begins with joint sessions where each party presents their perspective, followed by private caucuses where the mediator meets each party separately. The majority of construction mediations are conducted without prejudice, meaning nothing said can be used in subsequent proceedings. Mediation has a high success rate in construction disputes, with 70 to 80 per cent settling on the day or shortly thereafter. At Baker Merz, we represent clients in mediations across Australia, preparing comprehensive submissions, advising on settlement strategies, and negotiating favourable outcomes.

What are the costs of going to court?

Construction litigation costs are substantial and require careful consideration before commencing proceedings. Primary cost categories include legal fees charged on an hourly basis for solicitors and barristers preparing the case, attending court, and advising. Court fees must be paid to file originating processes and motions. Expert witness fees are often significant, as cases frequently require evidence from quantity surveyors, engineers, programming experts, and building surveyors, ranging from several thousand to tens of thousands of dollars. Barrister fees are incurred for legal advice, drafting pleadings and submissions, and advocacy. Indirect costs include staff time preparing for proceedings, business disruption, and reputational impact. The general rule is that the unsuccessful party pays a portion of the successful party's costs, typically 60 to 70 per cent on a standard basis. However, even successful parties are generally out of pocket for the difference between actual costs and recovered amounts. At Baker Merz, we provide detailed cost estimates at litigation outset and review regularly throughout, ensuring clients make informed decisions about dispute resolution strategy.

Can I represent myself in a building dispute?

In many jurisdictions, including QCAT for minor civil disputes, parties may represent themselves without a lawyer. Self-representation reduces costs and may suit straightforward disputes involving small amounts with simple facts. However, it carries significant risks. Construction law is highly technical, and disputes often involve complex issues such as contractual interpretation, statutory compliance, expert evidence rules, and procedural requirements. Self-represented parties may fail to present evidence effectively, not know how to challenge opposing evidence, miss critical deadlines, or make damaging admissions. In QCAT, while reasonable steps are taken to ensure self-represented parties are not disadvantaged, tribunal members cannot provide legal advice or advocate. In courts, self-represented litigants are held to the same standards as lawyers, and judges have limited ability to assist. For disputes involving significant amounts, complex technical issues, or serious consequences such as licence loss or substantial liability, legal representation is justified by improved prospects. At Baker Merz, we offer flexible service options including full representation and unbundled services where we assist with specific case aspects.

What is a quantum meruit claim?

A quantum meruit claim is an action to recover the reasonable value of work performed where there is no applicable contractual entitlement to payment. The Latin phrase means "as much as he has earned," and the remedy prevents unjust enrichment. In construction, quantum meruit commonly arises where work is performed under an oral contract lacking clear payment terms, where a variation is directed but not documented, where a contract is terminated, or where work is performed outside contract scope. To succeed, the claimant must demonstrate work performed at the other party's request, enrichment of the other party, and unjust enrichment if no payment is made. The recoverable amount is not the contract price but the fair and reasonable value, determined by market rates, actual costs plus reasonable margin, or customary rates for similar work. Quantum meruit claims face defences including an applicable contract governing the work, offsetting claims for defective work, and set-off for amounts owing. While a valuable remedy, clear contractual payment mechanisms are preferable. We advise clients to avoid relying on restitutionary claims where possible.

Residential Building

I'm a homeowner, what are my rights if my builder does defective work?

If your builder has performed defective work, you have several avenues for redress under statutory schemes and common law. In Queensland, the first step is usually lodging a complaint with the Queensland Building and Construction Commission (QBCC). The QBCC can investigate complaints and issue a direction to rectify requiring the builder to fix defects. If the builder fails to comply, the QBCC may take disciplinary action, and you may claim under the QBCC Home Warranty Scheme. The Scheme provides coverage up to $200,000 for completed work, with claims generally made within six months of becoming aware of structural defects, or twelve months for non-structural defects. You can also commence proceedings in the Queensland Civil and Administrative Tribunal (QCAT) for domestic building disputes, where the tribunal can award damages, order rectification, and make other orders. Homeowners retain common law rights to sue for breach of contract and negligence, though recoverable amounts may be limited by proportionate liability and insurance payments received. At Baker Merz, we advise homeowners on the most effective strategy considering defect nature, applicable time limits, and recovery prospects. See our Disputes & Litigation services for more information.

What is the QBCC Home Warranty Scheme?

The QBCC Home Warranty Scheme is a statutory insurance scheme protecting homeowners against defective residential construction work by licensed contractors in Queensland. The scheme is funded by builder premiums and administered by the QBCC. Homeowners may claim compensation up to $200,000 depending on work nature and value. Coverage extends to structural defects for six years and six months from practical completion, and non-structural defects for twelve months. Structural defects affect load-bearing capacity, stability, or integrity including foundations, footings, framing, and roofing. Non-structural defects make work unsafe, uninhabitable, or unsuitable for intended purpose. To claim, the homeowner must first have lodged a QBCC complaint and received a direction to rectify that the builder failed to comply with, or the builder must be deceased, insolvent, or disappeared. The claim must be lodged within applicable time limits with evidence of defects and rectification costs. The QBCC assesses the claim and if approved, pays the homeowner or arranges rectification work. The Scheme is an important safety net, but the claims process can be complex, and we recommend seeking legal advice to maximise success prospects.

What is the cooling-off period for residential building contracts in Queensland?

In Queensland, residential building contracts have a mandatory five business day cooling-off period, giving homeowners the right to cancel within five business days of signing or receiving a contract copy, whichever is later. The cooling-off period is prescribed by the Queensland Building and Construction Commission Act 1991 and applies to contracts valued at $20,000 or more, as well as lower-value contracts in certain circumstances. During this period, the homeowner can cancel for any reason without justification. Cancellation requires written notice to the builder. If cancelled during the cooling-off period, the builder may retain a small administration fee capped at the greater of $100 or 0.5 per cent of the contract price, and must refund all other money paid. The cooling-off period cannot be waived, and any contract provision excluding it is void. Exceptions include contracts by owner-builders, certain investment property contracts, and contracts where the homeowner received independent legal advice before signing. The cooling-off period is an important consumer protection, and homeowners should use this time to have the contract reviewed by a construction lawyer. See our Contract Review services for more information.

My builder has abandoned my project, what can I do?

If your builder has abandoned your project, act quickly to protect your interests. First, document everything: photograph the works, gather contracts, correspondence, payment records, and note when the builder last attended site. Next, formally terminate the contract in accordance with its provisions, including required notices and opportunities to remedy. Wrongful termination can expose you to damages, so seek legal advice first. Once validly terminated, engage a new builder, obtaining multiple quotes for completion as you may need to demonstrate reasonable costs if recovering from the original builder. Lodge a complaint with the QBCC, which can investigate and take disciplinary action including licence suspension or cancellation. If the builder was licensed, you may claim under the QBCC Home Warranty Scheme for rectifying defects and completing work. You may also have common law claims for breach of contract and negligence to recover additional completion costs above the original contract price. At Baker Merz, we assist homeowners facing builder abandonment, helping navigate QBCC processes, terminate contracts, engage replacement builders, and pursue loss recovery.

What is a direction to rectify?

A direction to rectify is a formal order issued by the QBCC requiring a licensed builder to fix defective work within a specified timeframe. The QBCC issues directions under the Queensland Building and Construction Commission Act 1991 when satisfied, following complaint investigation, that a builder has carried out defective work. The direction specifies defects to address, required rectification work, and completion deadlines. Builders are legally obliged to comply, and failure is a serious breach resulting in fines, licence suspension, or cancellation. Builders disagreeing with a direction can apply to the QBCC for review within a specified timeframe, involving reconsideration by a different officer with opportunity for additional submissions. If still dissatisfied after review, appeal to QCAT is available. For homeowners, a direction to rectify compels builders to address defects without expensive litigation. If the builder complies, the matter is resolved. If not, the homeowner may claim under the QBCC Home Warranty Scheme for rectification costs. At Baker Merz, we advise both homeowners and builders on the direction to rectify process.

Can I withhold payment from my builder?

Whether you can withhold payment depends on your contract terms, dispute nature, and applicable legislation. Under most residential contracts, owners can withhold payment if builders fail to perform obligations, such as defective work, failure to complete by the agreed date, or non-compliance with statutory requirements. However, withholding without proper grounds or outside contractual mechanisms carries risks including interest claims, work suspension, and contract termination by the builder. Under the Building Industry Fairness (Security of Payment) Act 2017, if the builder serves a valid payment claim, you must respond with a payment schedule within the required timeframe if paying less than claimed. Failure results in liability for the full amount. If there is a genuine dispute, follow the contract's dispute resolution procedures, typically negotiation then mediation or QCAT. Withholding payment as a pressure tactic without proper grounds is rarely advisable and can backfire, resulting in orders to pay plus interest and costs. At Baker Merz, we advise homeowners on payment rights and obligations, helping navigate disputes while minimising counterclaim exposure.

What is the defects liability period?

The defects liability period, also known as the maintenance or warranty period, is a defined period following practical completion during which the contractor rectifies defects appearing in the works. Duration is specified in the contract and varies by project and negotiation. Commercial projects typically have 12 months from practical completion, though 6 or 24 months are not uncommon. In Queensland, the QBCC Home Warranty Scheme provides structural defect coverage for six years and six months, and non-structural defect coverage for 12 months regardless of contract terms. During this period, the principal or superintendent may notify the contractor of apparent defects, and the contractor is generally obliged to rectify them at their own cost within a reasonable time. This obligation is in addition to broader contractual and common law warranties. If the contractor fails to rectify notified defects, the principal may engage others and recover costs, or claim against retention monies held as security. At period end, provided all defects are rectified to reasonable satisfaction, remaining retention monies are typically released. We recommend both parties maintain detailed records of defect notifications, inspections, and rectification work throughout this period.

Do I need a lawyer to review my home building contract?

Yes, having a construction lawyer review your home building contract before signing is one of the wisest investments you can make. Residential contracts, even standard HIA or MBA forms, often contain provisions significantly impacting your rights and financial exposure. Common problems include ambiguous scope descriptions, one-sided variation clauses, inadequate liquidated damages, unfair payment schedules requiring large upfront amounts, and defect liability provisions shorter than statutory minimums or excluding important protections. A lawyer ensures compliance with mandatory legislative requirements including cooling-off periods, insurance obligations, and disclosure requirements under the Queensland Building and Construction Commission Act. At Baker Merz, we offer fixed-fee contract reviews for residential contracts, providing comprehensive advice, risk identification, and amendment suggestions. The cost is a small fraction of potential dispute costs, and peace of mind from knowing your contract is fair and legally sound is invaluable. Whether building, renovating, or extending, have your contract reviewed by a specialist before signing. See our Contract Review services for more information.