• Schedule of Amendments (Special Conditions, Amendments to General Conditions of Contract)

    Additional conditions or amendments in a separate document or portion of the agreement that form part of an agreement. Typically found in standard forms of contract (eg a contract for the sale of land), the Schedule of Amendments includes the terms of which require modification, clarification or additions.

  • Schedule of Rates

    A list of rates or charges incorporated in a contract for the provision of goods or services. Where the rates are the means of determining the contract sum, the contract is known as a schedule of rates contract as distinct from a lump sum contract. Where the rates are merely used to value variations, the contract will not be considered a schedule of rates contract.

  • Scope of Works

    In respect of a construction contract, it includes all work required to be undertaken by the contractor in accordance with the Contract.

  • Scott Schedule

    A schedule prepared by a party to construction litigation that identifies (usually by way of a table) the Defects that are in dispute between the parties.

  • Secured Money

    Monies advanced to another pursuant to an instrument that confers a right of recourse to property or to a guarantee.

  • Security

    In the construction context, security is generally that given by the Contractor to the Principal to secure the Contractor's performance of its obligations, and can include one or more combinations of cash, retention moneys, bank guarantees and performance bonds.

  • Security for Costs

    An order made by the court, usually against a plaintiff, that a party give money or another form of security to the court to ensure that the plaintiff, if unsuccessful in the litigation, will be in a position to pay any costs ordered against it.

  • Security Interest

    An interest in a security (mortgages or charges), commercial rights akin to security (set-off or retention of title) and other encumbrances or obligations (eg performance bonds, guarantees) created to secure the payment of debt or performance of an obligation. See also PPSA and Personal Property Security Register.

  • Security of Payment Legislation

    Legislation enacted in each Australian State and Territory, which seeks to ensure that any person who carries out construction work, or provides related goods or services, is able to promptly recover progress payments to which it is entitled and contains a dispute or adjudication process that produces an interim decision in relation to the progress payment claim.

  • Security Trust

    An arrangement under which a Security Trustee holds all security interests, overall project entities and assets for the beneficiaries under the security trust (senior and mezzanine financiers, builders and sponsors).

  • Security Trustee

    A person (usually independent) appointed under a deed of trust to hold, protect and maintain the security interests of secured creditors.

  • Selected Subcontractor

    See Nominated Subcontractor.

  • Separable Portion

    A discrete portion or stage of a project that will be treated, for the purpose of certain clauses of the contract, as the entire 'Works'.  For example, the Contractor may be entitled to be paid for the completion of a portion of separable works (eg separate floors of a building), rather than upon completion of the entire Works.  Defects liability periods and liquidated damages may also apply to each separable portions of the work as they are completed respectively.

  • Separate Contractor (also known as Other Contractor)

    A Separate Contractor is commonly defined in a construction contract to mean any contractor who is engaged separately by the Principal of the project to perform separate works in parallel to the main contractor

  • Services

    Two main meanings: (a) performance of duties, generally professional duties such as consultancy services. (b) Utilities or features such as mechanical services or power supplies.

  • Set-Off

    A cross debt or cross demand, which entitles a party to offset the debt against the other party's claim. For example, a principal may set off monies in its progress payment if it has rights of set-off against the contractor.

  • Setting out

    Marking the position of a building or structure on a site, often with pegs placed using surveying equipment or lasers.

  • Settlement

    In the sale of land, the point at which the contractual obligations are completed by the parties, including payment of the purchase price by the purchaser and the transfer of the property taken by the vendor.

  • Severability

    A principle of interpretation which allows part of a contract or statute to be removed (such as a void clause) without voiding the whole contract or statute. Most contracts will have severability clauses which can impact on whether a clause can be severed from the contract without voiding the contract.

  • Shop Drawings

    Drawings prepared by a manufacturer for work, such as joinery fittings, which are to be made in a workshop and not on site.

  • Show Cause Notice

    See Notice of Default: a Notice under a Contract from one party to another of the other's Default. Under a construction contract, there may be specific requirements for such a notice, and specified consequences upon its issue.

  • Silver Book

    The Silver Book (or 'Conditions of Contract for EPC/Turnkey Projects') is a FIDIC form of contract for build-operate-transfer or 'turnkey' projects. Unlike the standard FIDIC forms, there is no separate contract administrator. Also, under this form a number of additional risks are allocated to a Contractor, including the risk of unforeseen ground conditions. Since its introduction in 1999, the Silver Book has been promoted as suitable for use where private project financing is required.

  • Site

    The land and other places to be made available to the Contractor by the Principal for the purpose of carrying out Work under the Contract.

  • Site Conditions

    The physical conditions on or under the Site and its near surrounds, including artificial things and Latent Conditions, but excluding weather conditions.

  • Snagging Items

    Minor defects to be dealt with during the defects liability period.

  • Spare

    An item held in reserve and used during times of breakdown or scheduled maintenance.

  • Special Conditions

    See Schedule of Amendments.

  • Special Damages

    Damages awarded that are capable of precise calculation, such as for loss of past earnings and expenses.  They are calculated as those losses reasonably supposed to have been in the contemplation of both parties, at the time they entered into the Contract, as the probable result of its breach.

  • Specific Performance

    Refers to a court order directed at a contracting party requiring it to perform obligations under a Contract. The right to specific performance contrasts with the right to Damages for breach of contract. Courts need to be satisfied that damages are not an appropriate remedy before making an order for specific performance of a contract.

  • Specifications

    A design or performance criterion describing in detail the work to be performed which is often one of the contractual documents that the contractor must comply with.

  • Sponsor

    A sponsor is usually the Parent Company of a special purpose vehicle, or another related company, that provides equity, security or other undertaking in relation to a project.

  • Stage (also known as Portion)

    See Separable Portion.

  • Stamp duty

    A form of taxation attaching to deeds and other legal instruments pursuant to legislation. Failure to stamp an instrument with duty may render it unenforceable.

  • Standards Australia

    An organisation that has the function of overseeing the development, distribution, sharing and maintenance of Australian technical, business and other standards to provide benchmarks for quality in products, processes, and services.

  • Standing Offer Deed

    An agreement which applies for a term and under which the Principal engages Contractor to carry out work on an ad hoc basis and in a streamlined process, without the need to execute a separate formal contract on each occasion.  The Standing Offer Deed sets out the terms which will apply to the work and a process for engaging the Contractor.

  • Statement of Claim

    A Pleading that records the cause of action and particulars of allegations made by a plaintiff/applicant in a proceeding.

  • Statutory Declaration

    A form of sworn written statement that is provided by statute and that carries penalties for intentional falsehoods.

  • Statutory demand

    The written demand which a creditor may serve on a company that owes them more than a prescribed amount (currently $2000). If the company fails to pay or give security for the amount (or agrees with the creditor to settle the debt by payment of a lesser sum) within the prescribed time, the company will be deemed unable to pay its debts - this can be grounds for a court to order its winding up.

  • Stay of Action

    Also known as a Stay of Proceedings. It is an injunction issued by a court to suspend proceedings either permanently or temporarily until, for example, the occurrence of a condition imposed by the court. Examples of circumstances in which a stay may be ordered are where there is no reasonable cause of action, the proceedings are frivolous, vexatious or are otherwise an abuse of process.

  • Step-in Rights

    Rights to replace or be a substitute for another or to interpose or become involved (usually so as to halt or hinder an action).

  • Strata

    The division of a parcel of land with unit entitlements divided into lots, or lots and common property.

  • Strata Plans

    A plan showing the subdivision of land into strata lots and common property. Once the plan is registered, new strata titles are issued for each unit within the plan and the common property.

  • Strata Title

    A system of Torrens Title which gives ownership rights over different parts of a building to different persons. A registered 'strata plan' divides the floor plans of such a building into lots - each with its own certificate of title. Common property is also on a separate title, held by an owners corporation constituted by the building's owners.

  • Stratum

    A layer below (or partly below), on, or above (or partly above) the surface of a part of land.

  • Sub-Lease

    A Tenant may dispose of his/her possessory interest to a third party before the expiry of the Lease, either by an assignment or a Sub-lease. If the Tenant does not dispose of the whole interest a Sub-lease is created. There is no privity of estate between the Landlord and sub-tenant.

  • Subcontract

    A Contract between a contractor and a subcontractor. It is common for subcontracts to mirror the key provisions of the Head Contract, such as provisions relating to Extensions of Time, Variations, Completion and Liquidated damages.

  • Subcontractor

    The person to who the contractor lets certain work which the contractor is required to carry out under a Head Contract. The contractor will enter into a contractual relationship with the subcontractor. Normally the contractor will remain liable under the Head Contract for all work, including work actually carried out by a subcontractor.

  • Subcontractor’s Charge

    A charge in favour of a subcontractor for monies payable to the subcontractor by a contractor, which charge may attach to monies payable by the head contractor to the contractor under the head contract and/or a security given for the purpose of securing contractual performance by the Head Contractor. (See for example Subcontractor's Charges Act 1974 (Qld) and Contractors Debt Act 1997 (NSW))

  • Subdivision

    Subdivision of land means the division of land into two or more parts that would be then adapted for separate occupation, use or disposition. The subdivision is effected by a conveyance, transfer or partition of land, or any agreement, dealing plan or instrument that has the effect of rendering different parts of the land available for separate occupation, use or disposition.

  • Subject to Contract

    When used in an agreement, the phrase creates legal presumption that the parties do not intend to make a concluded contract unless and until a formal contract has been executed.

  • Subordination

    Structural or contractual arrangements to create ranking of claims.

  • Subordination Deed

    A deed that documents an arrangement under which one creditor (the subordinated or junior creditor) agrees not to be paid by a debtor until another creditor of that debtor (the senior creditor) has been paid.

  • Subpoena

    A written document by which a court orders a person to appear before the court to give evidence or to supply it with certain documentary evidence within that person's possession.

  • Subrogation

    The substitution of one person for another in respect of a legal claim or demand. The person who is subrogated may sue on the other person's behalf, and acquires the rights, remedies, or securities of the other in relation to the claim. Arises generally in the insurance context where an insurer exercises its rights of subrogation by suing on an insured's behalf.

  • Subscription Agreement

    The Contract entered into by the issuer and subscriber of debentures under which funds are drawn down. Many of the provisions found in a Facility Agreement will be contained in the Subscription Agreement including: (a) agreement by the subscriber to subscribe for debentures in accordance with the terms of the Debenture Trust Deed up to the facility commitment; (b) conditions precedent to the subscription; (c) facility terms (interest calculation, charging and payment, principal repayments); (d) representations and warranties; (e) general undertakings/negative covenants; and (f) events of default. Subscription terms may be contained within a Facility Agreement rather than a separate Subscription Agreement.

  • Substantial Completion
  • Summary judgment

    A ruling whereby the court gives judgment to one party due to the total failure of the other party to establish any case or defence.

  • Summons

    A court procedure where a party is issued with notice to give evidence or produce documents to the court.

  • Sunset Date

    This is generally the term used for the 'drop dead' date for a project. If Practical Completion under a building Contract has not occurred by the Sunset Date a Principal will generally have a right to terminate. For the purposes of financing, it is the date on which the Financiers may cancel a loan.

  • Superintendent

    The person generally engaged by the Principal to administer the building Contract. In some instances the Superintendent is referred to as the Contract Administrator (see PC-1). The Superintendent is not a party to the Contract. However, the Contract will define the role of the Superintendent in administering that Contract. The Superintendent may have a dual role: to issue directions to the Contractor on behalf of the Principal and to carry out certification tasks as a party independent to the Principal. This creates a tension between the Superintendent's role as the Principal's agent (and therefore clearly representing the Principal's interests) and as a certifier (which must be undertaken independently).

  • Supplier

    An entity which provides goods or services for financial reward.

  • Supply Chain

    The links (such as organisations or people) involved in moving a product or service from a supplier to the purchaser.

  • Surety

    A person who binds himself or herself, usually by deed, to satisfy the obligations of another person, if the latter fails to do so. Similar to a guarantor. If a surety satisfies the obligations for which he/she is liable, the surety is entitled to recover the amount from the principal debtor.

  • Survey Mark

    A survey peg, bench mark, reference mark, signal, alignment, level or any other mark for the purpose of setting out, checking or measuring work under the Contract.

  • Suspension

    A temporary stop or cessation of a person's rights and / or obligations.