Comparative research is undertaken on certain aspects of standard forms of building contract claims within the framework of Scottish, English and Malaysian laws. This thesis examines 'consideration' and '<i>jus quaesitum tertio</i>' in contract to provide an alternative to negligence actions in tort for claims arising out of defects in building. Issues pertaining to 'Practical Completion' and 'Final Certificate' in JCT 80, JCT 63 and PAM69 standard forms are studied to settle the difference between the practice in the building industry and the legal expectation. An examination on the validity of 'automatic determination' clause is made and a revision is suggested. An old Scottish case, <i>Arthur de Mornay Bidoulac and others v. James Kidd (Sinclair's Trustee</i>) (1889) 17 R 144, is analysed in this context. Arbitration, being a preferred method of settling disputes, is comparatively analysed in relation to the powers of the court to supervise and hear appeals therefrom. A claim for economic loss in tort relating to defective works is examined in the light of <i>Murphy v. Brentwood District Council</i> [1990] 2 All ER 908. <i>Junior Books Ltd. v. Veitchi Co. Ltd</i>. 1982 SLT 492, [1982] 3 All ER 201 (HL) is defended as a sound authority for the recovery of pure economic loss by an employer from a third party specialist subcontractor. The English Defective Premises Act 1972 is examined in search of a better approach to the situation in Malaysia. The law relating to prescription and limitation period is analysed. Malaysia still enforces the law disapproved in <i>Pirelli General Cable Works Ltd. v. Oscar Faber & Partners (a firm)</i> [1982] 3 All ER 201 (HL). The work identifies important issues relating to building contract claims and provisions in the laws that need to be addressed and attended to for future development.

This study investigates the behavior of contractors when submitting bids under different institutional arrangements. Construction projects under the private and public sectors in Hong Kong operate under two distinct contractual and bidding arrangements giving different degrees of risk and uncertainty to the contractors. First, private sector projects in Hong Kong invariably adopt conditions of contracts that shift more risk to the contractor. A typical example is private sector projects do not normally allow fluctuation adjustments, thereby shifting the risks of future increase in prices of construction resources to the contractor. Public sector construction projects include fluctuation clauses for projects of duration over 21 months (Later extended to all contracts via Circular DEVB(PS)107/3 dated 18 July 2008). Second, it is common practice for private sector clients to negotiate with the contractors after they have submitted their bids. Although in some cases, private sector clients may also simply accept the lowest tender, bidders would normally anticipate that they are likely to negotiate with them after the bids are opened. This practice, however, is not allowed in public sector projects. For reasons of public accountability, Government tendering procedures do not allow changes to the bid price after the tenders have been submitted and the time for return lapsed (except for specifically approved cases). This requirement basically bars any price negotiation as in the case of private projects. We conjecture that these two differences in institutional arrangements have significant impact on bidders’ behavior, which would be characterized by the distribution and pattern of the submitted bid prices. Based on records of bid prices for 105 contracts tendered during the period 1997 and 2007, we found that public sector bids are more skewed to the left (or have a longer tail towards the left) than private sector bids, ceteris paribus. This means that low bids for public sector projects are more scattered than those of private sector projects. This result is consistent with the hypothesis that bidders attempt to hide their true bid prices by submitting higher bids when the client is not bound to accept the lowest tender. The empirical results also suggest that the bid-spread, as defined by the percentage difference between the lowest and second lowest bid, is higher when post tender negotiation is prohibited. Bidders would tend to submit more aggressive bids for public sector projects, knowing that they would not have a second chance to adjust their bid prices at a later stage. This suggests a higher probability of winner’s curse for public sector projects. For private sector projects that do not include fluctuation clauses, the bid-spread is also affected by the expected risk of future increase in the prices of construction resources. When such risk is high, bidders will become more cautious when submitting their bids and thus resulting in a lower bid-spread. The bid distributions for public sector project have thicker tails on both ends compared to those of private sector projects due to its prequalification system and the practice of acceptance of the lowest bid. The empirical evidence in this study confirms this. In addition, market conditions, number of bidders, contract size and the proportion of prime cost and provisional sum as a percentage of the contract sum are also important determining factors of biding behavior. The results of this study show that institutional arrangements matters in determining bidding behavior. Previous studies that attempt to estimate the distribution of bid prices for construction projects have largely ignored the importance of institutional arrangements, which may therefore lead to biased results. The results of this study contribute to our understanding of bidder’s behavior when bidding for construction projects under different institutional arrangements. The understanding will be useful in handling bidding exercises for new construction projects and the advancement of studies on bidding strategy models. / published_or_final_version / Real Estate and Construction / Master / Master of Philosophy

Non-residential construction projects typically involve a large number of parties and a complicated "pyramid" of contractual relationships. At the top of the project an owner or developer commonly employs a head contractor, who employs specialist contractors, who employ subcontractors, who finally employ workers and material suppliers. Funds for the project are fed in at the top and are intended to trickle down to those at the bottom. However, evidence indicates that this often does not happen and that those at the bottom - most significantly subcontractors - suffer substantial losses. Many countries attempt to reduce subcontractors' losses through legislative intervention. The Canadian common law provinces apply both a statutory "builder's lien", which allows an unpaid subcontractor to register a charge against construction land, and supplementary holdback and trust requirements. By contrast, New South Wales, Australia and the United Kingdom apply a "quick and dirty" form of adjudication in an attempt to reduce the delays in payment disputes. New Zealand is currently investigating the form of legislation that it should enact and has modelled the Construction Contracts Bill on New South Wales adjudication measures. This thesis examines the Canadian, New South Wales and United Kingdom systems for protecting subcontractors, as well as the New Zealand Construction Contracts Bill. It describes these different systems, and applies Cooter and Ulen's perfect contract analysis in an attempt to compare them. It concludes that the New South Wales approach is the most favourable, particularly because of its attempts to reform areas of the construction industry beyond just the problems that subcontractors face. However, it also notes that this approach has very high transaction costs, to such an extent that some proposed reforms may never come to fruition. It therefore recommends that New Zealand take a cautious approach in copying these measures. In addition, the thesis recommends that New Zealand researchers take more time to examine North American builder's lien systems. Protecting construction subcontractors is a complicated issue and the best solution for New Zealand will result from a careful consideration of the many different systems, both before any legislation is enacted and afterwards.

Thesis (M App Sc in Project Management)--University of South Australia, 1993

Thesis (PhD) -- University of South Australia, 1999

Thesis (M.A.)--City University of Hong Kong, 2007. / "LW 6409A, dissertation" Submitted to School of Law, City University of Hong Kong. Title from PDF t.p. (viewed on Apr. 1, 2008) Includes bibliographical references.

Thesis (M.A.)--City University of Hong Kong, 2007. / "Master of Arts in arbitration and dispute resolution, LW 6409 dissertation." Title from PDF t.p. (viewed on Apr. 1, 2008) Includes bibliographical references.

Thesis (M.A.)--City University of Hong Kong, 2007. / "Dissertation for the degree of Master of Arts in arbitration and dispute resolution (MAArbDR)" Title from PDF t.p. (viewed on Apr. 1, 2008) Includes bibliographical references.

Thesis (Ph. D.)--University of Hong Kong, 2008. / Includes bibliographical references (p. 351-400) Also available in print.

Thesis (Ph. D.)--University of Hong Kong, 2008. / Includes bibliographical references (p. 351-400) Also available online.