Otago Polytechnic

David Finnie, Lecturer within the School of Architecture, Building and Engineering, investigates the precise interpretation of construction contracts as they relate to buildability risk.

Buildability is linked to productivity and quality, providing better value for money and often superior quality.  “Yet it is possible to design something which complies with, say the Building Code, but which is impracticable or even impossible to build.  Therefore, it is important to understand who bears the risk of design buildability,” David says.

David examined how legal principles such as absolute liability, frustration and restitution based on unjust enrichment, impact on buildability risk, and how the processes of adjudication, arbitration or litigation can be used in the cases of disputes. 

According to David, when a contractor prices a contract they also need to factor in costs for the likelihood of risk occurring and the likelihood of arbitration decisions. 

Using case law precedent and expert commentary, David has developed a conceptual framework which establishes how buildability obligations are allocated across the contracting parties dependent on a range of variables. This framework can guide contract users in interpreting construction contracts and inform contract drafters and policymakers on their rights and responsibilities. “My hope is that this will help contractors price risk more accurately and write contracts using clear, plain English.”

David's research is already capturing lots of interest.  He presented a peer reviewed conference paper to the Pacific Association of Quantity Surveyors Congress held in May 2016 on dispute resolution processes. Another journal article about the implied legal position of buildability has also been accepted, and David has won a scholarship to further develop his ideas into a PhD.

Finnie, D. (2015) Key aspects affecting buildability risk allocation in construction contracts. Masters dissertation, Massey University.