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Construction Disputes & Litigation
Areas of Expertise:
Dominique Engelter
PrincipalLLB, BA
EXPERTISE
EXPERIENCE
Dominique specialises in complex dispute resolution in the Western Australian jurisdiction; focused predominantly in the Supreme Court.
He acts as counsel in trials in both the State and Federal Courts, as well as the State Administrative Tribunal.
Dominique has a broad range of experience across insolvency litigation, mining, commercial lease and property disputes, and trusts and estate litigation acting for:
- Land developers, project managers, and engineering companies in Construction Contract Act adjudications.
- Liquidators in asset recovery actions and Personal Property Securities Act disputes.
- Directors and creditors in defending claims made by liquidators.
- Mining companies in disputes concerning tenement and plant acquisitions and disposals, tenement expenditure requirements, and contractual disputes in relation to farm-ins and drilling services.
- Lessors and lessees in commercial tenancy disputes including lessee claims for relief against forfeiture, equitable priorities between competing lessees, disputes concerning valid lease termination and breach of quiet enjoyment. Two recent examples are
- Executors and beneficiaries in Family Provision Act claims, proceedings to remove executors/trustees, and Will interpretation cases.
- Directors, shareholders, and partners in shareholder and partnership disputes, equitable claims such as diversion of commercial opportunities and breach of fiduciary duty, and Corporations Act claims such as breach of directors' duties.
Some examples of Dominique's experience as trial counsel are:
- Obtaining Supreme Court orders discharging a caveat and resisting applications for caveat amendment and for leave to lodge a new caveat. See Wright v Brown [2023] WASC 245.
- Acting for an Executrix in a Supreme Court action for partition and sale of land and defending againt allegations of fraud. See Corlet & Anor v Field & Ors [2018] WASC 243. The client was successful, including on appeal to the Court of Appeal and with special leave to appeal to the High Court refused. See for example Field & Ors v Corlett & Anor [2018] WASCA 184.
- Acting for a landlord in a Supreme Court action where the tenant claimed wrongful termination of the lease and relief against forfeiture. The landlord was vindicated, recovered their losses, and obtained an order for indemnity costs against the tenant. See Icechest Corp Pty Ltd v Quan [2017] WASC 345.
- Successfully acting for liquidators in Supreme Court proceedings for declarations over rights to certain security property, which was then able to be sold back to the defendant for a premium. See Flown Pty Ltd v Goldrange Pty Ltd & Anor [2016] WASC 419.
- Obtaining damages and a costs indemnity against co-defendant in Supreme Court proceedings concerning priorities between equitable rights held by competing tenants to a commercial premises. See Claremont 24-7 Pty Ltd v Invox Pty Ltd & Anor [2015] WASC 220.
Dominique is a graduate of the Australian Institute of Company Directors (AICD) and a member of AMPLA.
Construction Disputes & Litigation
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We advise contractors, sub-contractors and principals in large construction project disputes relating to:
- Mining, such as contractual disputes and negligence claims regarding the construction of processing plant, works relating to pipelines, and the development of mine-site accommodation and facilities
- General infrastructure claims relating to the construction of hospitals, road tunnels, transport terminals, and wind farms
- Commercial and residential property development, such as advising project managers and principals in relation to claims under their management agreements, claims under the Building Services Act, disputes between neighbouring developers in relation to shared services and contribution, and claims relating to project delays and variations
We provide the full range of dispute resolution services including mediation, adjudication and arbitration, as well as proceedings in the Federal and State courts.
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Our relevant and notable experience includes:
- Acted for a national engineering company in a Construction Contracts Act adjudication for subcontractor works at the Muja power station project in Collie
- Advised a foreign subcontractor in a multimillion dollar contractual dispute with the head contractor about the manufacture and supply of wind turbine towers for a Western Australian wind farm
- Acted for directors in NSW Supreme Court proceedings by an insurer relating to $7million guarantees of construction-related insurance bonds
- Acted for the responsible entity of two residential property development managed investment schemes in the Perth outskirts, in successful defence of multiple Construction Contract Act adjudication claims by the project managers
- Acted for responsible entity of a managed investment property development scheme in a dispute with a neighbouring landowner about contribution to public open space and the sharing of development costs
- Advising a project manager in relation to dispute with property developer in the southern metropolitan region, in relation to payment and performance and termination of services
- Acted for a build-to-lease tenant in a dispute concerning fitness of use of a purpose built laboratory/office/warehouse facility and rectification of construction works
- Acted on many occasions for builders in the State Administrative Tribunal and State courts in defending claims by owners concerning the construction of residential houses and apartment complexes.
Litigation & Dispute Resolution Lawyers
Williams + Hughes has a long held reputation as having trusted expert litigation and dispute resolution lawyers in Perth. Our litigation and dispute resolution lawyer team is one of the largest litigation teams in Western Australia, regularly appearing in the State and Federal Courts and the State Administrative Tribunal.
We assist and advise clients on the full range of corporate and commercial litigation and dispute resolution matters. We act for public and private companies and individuals, assisting them to obtain the best outcome possible.
If you are in need of litigation and dispute resolution lawyers in Perth, contact us and see what sets us apart.
What we do
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Developers and landlords can release their breath – performance bonds and guarantees remain enforceable
Post by Dominique Engelter | Posted 6 years ago on Friday, May 4th, 2018
In a decision that would otherwise have had serious ramifications, not only in the construction industry but across other industry sectors such as commercial leasing, developers successfully enforced performance and maintenance bonds where the paying financier tried to dodge payment on the basis of an underlying dispute between the developers and contractor.
In Swanhill Enterprises Pty Ltd v QBE Insurance (Australia) Ltd [2017] WASC 279*, various performance and maintenance bonds had been issued by a financier (QBE) in favour of developers Swanhill and Adelaide, to guarantee the obligations of the contractor, Diploma Construction. Swanhill and Adelaide were related to Diploma Construction.
Swanhill and Adelaide called on the bonds in September and December 2016 respectively. The Diploma Group collapsed in December 2016. The financier refused to pay out the bonds. The financier argued Diploma was not actually in breach contract and thus Swanhill and Adelaide were not entitled to call on the bonds; that Swanhill and Adelaide knew there was a dispute with Diploma and therefore calling on the bonds was unconscionable conduct.
A similar issue arises with a landlord’s call on a lease bank guarantee, when the tenant disputes a breach or asserts a set-off or counter-claim. Is the bank entitled to ‘look behind’ the call on the guarantee and refuse to pay if there is a dispute between landlord and tenant?
In this case the Court held the bonds were contractual promises between the developers and the financier independent or autonomous of the underlying contracts between the developers and contractor and, if the developers called on the bonds in accordance with their terms, the financier was contractually obliged to honour them notwithstanding its knowledge of any dispute between the developers and contractor.
Further, the Court decided there could not be unconscionable conduct (between developers and financier) in calling on the bonds when the financier would have been aware, when offering to provide the bonds in the first place, of the risk Diploma may dispute the developers’ right to call on them.
Put another way, the financiers could not use the excuse of a dispute between the developers and Diploma to avoid paying on the calls.
A secondary issue arose as to actual compliance with the requirements of the bonds. Although ‘strict compliance’ was required, the Court was willing to ignore matters it deemed inconsequential or minor. Given the ‘main requirements’ of the bonds were met – for the developers to certify a breach and specify the amount of the loss – the Court was satisfied there was strict compliance with the requirements of the bonds.
Take away lessons for beneficiaries
- Ensure the contractual right to call on a guarantee or bond is expressed in unconditional terms, and is not reliant on an independent finding of ‘who is right’. At second best, the guarantee or bond should be enforceable if the beneficiary (the developer/landlord) believes, in their discretion, there is a breach entitling them to call on it.
- Check the bond or guarantee when received, to make sure it accords with the beneficiary’s rights in the contract/lease.
- Make an effort to ensure the call on the bond or guarantee is made in accordance with the conditions on that document. This is simply a process of jumping through the hoops.
* Williams + Hughes acted for the successful developers.
This article is general information only, at the date it is posted. It is not, and should not be relied upon as, legal advice. This article might not be updated over time and therefore may not reflect changes to the law. Please feel free to contact us for legal advice that is specific to your situation.