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Law and Dispute Resolution Publication 390 Proceedings Law and Dispute Resolution Selected papers presented at the CIB World Building Congres Construction and Society, Brisbane 5-9 May 2013 CIB Commission W113 - Law and Dispute Resolution Papers from the Designated Session Law and Dispute Resolution that took place as part of the CIB World Building Congress, Brisbane, Australia, May 2013, under the responsibility of Working Commission W113 - Law and Dispute Resolution Papers reviewed by: John Adriaanse, London South Bank University, UK Julie Adshead, University of Salford, UK Andrew Agapiou, University of Strathclyde, UK Deniz Artan Ilter, Istanbul Technical University, Turkey Julian Bailey, CMS Cameron McKenna, UK Matthew Bell, University of Melbourne, Australia Michael C Brand, University of New South Wales, Australia Philip Britton, Kings College London, UK Penny Brooker, University of Wolverhampton, UK Philip C F Chan, NUS, Singapore Sai On Cheung, City University of Hong Kong, China Paul Chynoweth, University of Salford, UK Julie Cross, University of Salford, UK Dee Davenport, University of Central Lancashire, UK Philip Davenport, University of New South Wales, Australia Steve Donohoe, University of Plymouth, UK Phil Evans, Murdoch University, Australia Peter Fenn, University of Manchester, UK Paula Gerber, Monash University, Australia Asanga Gunawansa, NUS, Singapore Peter Hibberd, University of Salford, UK Jan-Bertram Hillig, Herrenknecht AG, Germany Joe Horlen, Texas A&M University, USA Andrew Kelly, University of Wollongong, Australia Anthony Lavers, Keating Chambers, UK Mel Lees, Birmingham City University, UK Wayne Lord, Loughborough University, UK Shaun Lowry, University of Central Lancashire, UK Tinus Maritz, University of Pretoria, South Africa Jim Mason, University of the West of England, UK Brodie McAdam, University of Salford, UK Tim McLernon, University of Ulster, UK Frits Meijer, TU Delft, The Netherlands M. Ehsan Che Munaaim, King’s College London, UK Issaka Ndekugri, University of Wolverhampton, UK Linda Thomas-Mobley, Georgia Tech, USA Keren Tweeddale, London South Bank University, UK Henk Visscher, TU Delft, The Netherlands Peter Ward, University of Newcastle, Australia Clive Warren, University of Queensland, Australia Suzanne Wilkinson, University of Auckland, New Zealand Peter Williams, University of New South Wales, Australia Adrienne Yarwood, University of Central Lancashire, UK CIB Publication 390 W113 - Law and Dispute Resolution The Commission's primary function is to coordinate the identification of and response to the multitude of emerging legal challenges faced by the construction and property industries worldwide. In this context the Commission's objectives are: • to establish a thriving international research community in the fields of law and dispute resolution • to contribute to the wider building and construction research agendas through encouraging the active engagement of legal scholars with other specialist in the field • to coordinate efforts to identify and address emerging legal challenges faced by the global construction and property industries through building a coalition of stake- holders from industry, the professions and academia • to generate interest in the application of law in an international construction and property context amongst legal specialists in the legal professions and law faculties worldwide • to increase the understanding of obstacles to effective transnational construction operations and building performances management by facilitating the development of comparative legal methodologies and research projects. CONTENTS Papers A Case Study Investigation into the use of Computer Generated Visualisations 1 to Assist with Construction Delay Claims David-John Gibbs, Stephen Emmitt, Kirti Ruikar and Wayne Lord ADR Practice in the construction industry: a futuristic perspective 13 Olive du Preez, Basie Verster Analysis of delay, disruption and global claims in the context of statutory 25 adjudication in Australia Damian Michael†, Michael C Brand Assessing the Outstanding Payment Issues in Hong Kong Construction Industry 37 Ho Paul Construction Mediation Training: A Case of Pedagogical 50 Principle-based E-learning Sai On Cheung, Yingying Qu Learning from the Past: Analysis of Factors Contributing to Construction Project 62 Disputes in Australia Ana Laura Campos Gutierrez, Kriengsak Panuwatwanich and Angela Walker Measuring Enrichment Liability in the Context of Unfinished Construction 74 Projects Aimite Jorge Monetary value as a proxy for vulnerability in statutory adjudication and 86 other construction regulation Matthew Bell and Ravindu Goonawardene Payment Scenario in the Malaysian Construction 99 Industry Prior to CIPAA Mohamed Nor Azhari Azman, Natasha Dzulkalnine, Zuhairi Abd Hamid, Kamarul Anuar Mohd Kamar, Mohd Nasrun Mohd Nawi Should the application and practice of construction adjudication be underpinned 109 by legislative intervention in the South African construction industry? Vaughan Hattingh and Marthinus Johannes Maritz The Enforceability of Termination for Convenience Clauses 121 Philip Evans A Case Study Investigation into the use of Computer Generated Visualisations to Assist with Construction Delay Claims David-John Gibbs 1, Stephen Emmitt 2, Kirti Ruikar 3, Wayne Lord 4 Abstract It is probable that a construction project will encounter some form of delay which can have differing adverse effects on the various parties involved in the works. Those affected by the delay are entitled to claim a form of compensation but the burden of proof lies with the party making the assertion. Analysing the cause and effect of a delay event is difficult given the ever increasing complexity of construction works; thus, experts are often employed to undertake the task but face the challenge of clearly representing and communicating their findings. This paper identifies the accepted traditional methods of representing construction delays and explores how they could be assisted through technological developments in computer generated visualisations, which have gained growing acceptance within legal proceedings. An in-house case study presents two different visualisations, one in 2D and one in 4D, which were developed in an attempt to assist with the same delay claim. The benefits, limitations and areas of improvement are discussed for each and an overall recommendation on the potential use of visualisations to assist with construction delay claims is presented. The paper recognises further investigation into the use of Building Information Modelling to support delay claims which forms part of on-going research towards an engineering doctorate. Key words: BIM, claims, delays, disputes, visualisation. 1. Introduction Construction projects are becoming increasingly complex, yet tender values in the UK are decreasing (BCIS, 2012). The more complex a construction project, the more likely it is to encounter time delays, which may result in financial implications (CIOB, 2008). Given that 70% of UK construction projects are delivered late (HM Treasury, 1999) and that organisations cannot financially absorb the difference from what was planned, if the delay is beyond the organisations control, it is likely that a claim will be made for some form of 1 Research Engineer; DAQS Ltd; Stokes Suite, Unit 7a, East Bridgford Business Park, Kneeton Road, East Bridgford, Nottingham, England, NG13 8PJ; [email protected]. 2 Professor of Architectural Technology; Loughborough University; School of Civil and Building Engineering, Loughborough University, Loughborough, Leicestershire, LE11 3TU, England; [email protected]. 3 Senior Lecturer; Loughborough University; School of Civil and Building Engineering, Loughborough University, Loughborough, Leicestershire, LE11 3TU, England; [email protected]. 4 Lecturer; Loughborough University; School of Civil and Building Engineering, Loughborough University, Loughborough, Leicestershire, LE11 3TU, England; [email protected]. compensation. If the claim is not accepted, the project may go into dispute. The number of construction disputes in the UK has risen by a third during the recent recession (Sweet & Maxwell, 2010) with both the value and length of the average UK construction dispute increasing by US$2.7million and 1.95months (EC Harris, 2012). Owing to the extensive resources required to undertake a construction claim, the divergence away from the proactive management of the organisation, as well as the migration of cash flow out of the construction industry when disputes occur, it is imperative that steps are made to improve the claim process. This paper investigates the use of computer generated visualisations to assist with construction delay claims, an area in which to date there has been very little published research. The research reported in this paper is based on an in-house case study which presents two different visualisation approaches, one in 2D and one in 4D, which were developed to assist with the same delay claim. 2. Background The term delay is exhaustively used in the construction industry; however, no standard form of construction contract defines the term due to the comparative nature in which it is used (Pickavance, 2010). In this paper, the term delay refers to the non-completion of works by a date set in the construction contract (Fenwick Elliott, 2012). Therefore, the process of analysing delays can be viewed as the forensic investigation into an issue which has caused the project to overrun on time (Farrow, 2001). This is distinctly
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