Under the latest New South Wales Public Health Order, all non-urgent work at construction sites in Greater Sydney has been paused from 12:01 a.m. on Monday 19 July until 11:59 p.m. on Friday 30 July.
New restrictions are set to compound the difficulties already faced by the construction industry in Greater Sydney, which include shortages of staff and unavailability of labour generally as a result of self-isolation requirements and stay-at-home orders, as well as delay or shortages of equipment and materials due to disruption to the supply chain. Other commercial risks posed by this recent lockdown may arise due to insolvency of other parties, and industry groups are warning of significant insolvencies if the restrictions were to continue beyond 30 July.
These additional COVID-19 related risks highlight the need for project participants to review their contractual rights and obligations in light of potential disruption to construction, as well as considering strategies to mitigate or minimise delays and costs.
Industry participants should review their current contracts for ongoing construction projects to consider any relevant force majeure, variation, extension of time and change of law provisions, and any applicable notice requirements, as well as considering the possible operation of any default or sunset clauses, or legal doctrines such as frustration.
It will be beneficial for project participants to document any relevant risk events, such as the current lock-down, and to consider what records may be necessary in respect of potential future claims or disputes. Owners and contractors alike should be mindful of the potential interaction of impacts of the current lock-down with other related and unrelated factors that may contribute to delays or cause concurrent or superseding delays.
For additional information on the impact of COVID-19 on construction and infrastructure projects, the following publications provide further commentary:
- Coronavirus: Potential Implications for Major Construction and Infrastructure Projects in Australia
- Construction Projects and Disputes: A Look Beyond the COVID-19 Lockdown
- Construction Projects and Disputes: A Look Beyond the COVID-19 Lockdown, Part II
- Construction Projects and Disputes: A Look Beyond the COVID-19 Lockdown, Part III
Olivia Taylor, in the Sydney Office, assisted with the preparation of this Alert.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.