Infrastructure, Projects and Construction

Overview

The legal risk in infrastructure is concentrated at two points: the decisions made before a contract is signed, and the disputes that arise when delivery fails to match what was agreed.

Thomsons advises contractors, principals, government agencies, investors and project companies across both structuring projects to allocate risk appropriately, and acting when that allocation is contested.

Front-end and back-end work may be handled by the same team. Construction, procurement, finance, dispute resolution and regulatory advice are brought to bear on a single assignment when the project requires it. On major PPPs, alliance contracts and multi-party energy projects, the disciplines are inseparable.

Areas of expertise

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The choice of delivery model (Design and Construct, EPC, PPP, alliance, managing contractor or hybrid) determines risk allocation, governance, payment structure and available dispute rights. Thomsons advises on model selection and structures the contractual architecture accordingly. For alliance and PPP arrangements, this includes structuring the governance of the delivery entity, which is a distinct task that precedes and shapes contract negotiation. The risk positions established at this stage define the entire downstream relationship.

Thomsons advises on both sides of procurement. For government and principal clients: procurement strategy, tender design, evaluation frameworks, probity requirements and compliance with public procurement legislation and policy. For contractors and joint ventures: bid structuring, consortium and JV arrangements, risk review of tender documentation and negotiating positions before submission. The firm participates in tender review panels for major infrastructure programs. At this stage the legal work is strategic, risk positions taken in a bid define the entire downstream relationship.

Reaching financial close on major PPPs and large-scale infrastructure projects requires the construction, finance and regulatory workstreams to resolve simultaneously. Thomsons advises on the contractual conditions precedent to financial close, the interface between construction and finance documentation, and the security and step-in arrangements that lenders and equity require. Delays to financial close are expensive. The work is time-critical and requires command of both the project and the funding structure.

Thomsons drafts and negotiates head contracts, subcontracts, JV and consortium agreements, operations and maintenance agreements, supply contracts, security documents and consultant engagements. On major projects this work is conducted under time pressure against experienced counterparts. The standard is precision on the issues that assignment: risk allocation, payment, termination, liability caps, indemnities and interface obligations. The firm advises on precedent and the commercial consequences of specific drafting, not just the technical position.

Delivery generates claims. Thomsons advises contractors and principals on variations, extensions of time, delay and disruption, defects, liquidated damages and performance enforcement as they arise during construction. Early legal involvement in claims preparation affects the quality of the record and the strength of the eventual position. The firm advises on claim strategy, manages the contractual response process and prepares for escalation where agreement is not reached. Claims management on complex projects (particularly where technology subcontracts interface with principal and State obligations under PPP arrangements) requires legal, commercial and technical judgement applied simultaneously.

Thomsons acts in Security of Payment disputes across all Australian states and territories and in New Zealand under the Construction Contracts Act. This includes preparing and responding to payment claims, running adjudication applications, managing interlocutory challenges within the adjudication process, enforcing determinations and advising on the interaction between SOP rights and head contract obligations. The firm has managed adjudications of institutional scale involving dozens of discrete variation and delay claims, multiple interlocutory applications and simultaneous preparation for mediation and arbitration.

Bank guarantees and insurance bonds are immediate commercial instruments. The decision to call, and the response to a call, have consequences that cannot be undone. Thomsons advises on the drafting, calling and contest of performance securities including injunction applications where restraint is sought. The work requires both technical precision on the instrument's conditions and fast commercial judgment on timing and consequences.

Thomsons acts in construction litigation in the Supreme Courts and Federal Court across Australian jurisdictions, for contractors, principals, subcontractors, project companies and insolvency practitioners. The firm acts for both claimants and respondents. Assignments span multi-proceeding insolvency-related litigation, major pipeline and terminal construction disputes, and leading appellate cases on delay, disruption, variations, liquidated damages and defects.

Thomsons acts in domestic and international construction arbitration under ACICA, ICC, LCIA, Resolution Institute and ad hoc rules. The firm advises on arbitral strategy, manages the procedural phases and acts as advocate in hearings. International arbitration experience extends to Singapore, Hong Kong, the UK, Japan and PNG, including renewable energy, defence infrastructure and cross-border project delivery assignments.

Major projects operate within regulatory frameworks that impose obligations on delivery: construction industry regulation, work health and safety, critical infrastructure safeguards, planning consent conditions, environmental approvals and technical standards. Thomsons advises on compliance during procurement and delivery, manages regulatory interface where approvals are conditions of progress, and advises where non-compliance creates legal exposure. For projects in regulated environments (airport infrastructure, energy transmission, defence facilities) the regulatory thread runs through the entire lifecycle.

Our experience

TasVic Greenlink JV – Marinus Link undersea and underground electricity and data interconnector

Advised the Samsung C&T and DT Infrastructure joint venture on their successful bid for the balance-of-works contract on Marinus Link, the A$6.5 billion undersea and underground electricity and data interconnector between Victoria and Tasmania. Tasmania's largest-ever energy infrastructure project, jointly owned by the Australian, Tasmanian and Victorian governments.

Seymour Whyte, Vinci Group, Laing O'Rourke JV – 'Wave 2' Gold Coast rail

Acting for a joint venture comprising Seymour Whyte, Laing O'Rourke and Vinci Group on its bid for 'Wave 2' of the A$5.5 billion Gold Coast rail joint venture, including new passenger rail delivery ahead of the 2032 Brisbane Olympic Games.

Alstom – Suburban Rail Loop development

Advising Alstom as Non-Owner Participant in the John Holland/RATP Dev consortium for the A$30–40 billion Suburban Rail Loop Project in Victoria, the largest infrastructure project in the state's history. The first stage is a 26-km fully tunnelled metro corridor with six new stations. Advising on delivery alliance documentation and long-term maintenance arrangements.

South Australian Government – New Women's and Children's Hospital, Adelaide

Supported the South Australian Government on contractor procurement, probity and risk allocation for one of the state's largest hospital projects.

Gamuda/Laing O'Rourke JV – Sydney Metro West package

Advised the joint venture on the A$2.16 billion tunnel and civils package for Sydney Metro West, including contract negotiation and risk allocation. Part of the firm's broader involvement in the A$11 billion Sydney Metro program.

NEC – Footscray Hospital technology subcontract

Advising NEC on its technology subcontract for the A$1.5 billion Footscray Hospital PPP in Victoria (covering CISCO networking, security, data centre and telephony systems) including contract administration, delay claims and insurance and stakeholder issues during construction.

Data centres – Construction contracts

Advising on construction contracts for data centre projects for AirTrunk, Amazon and other operators across multiple active projects.

Contract claims – Delay, variation, extension of time

Managing delay, variation and extension of time claims for contractors on the Sydney Metro Western Sydney Airport rail line and other major rail programs. Advising on claim preparation and management for delays to a technology subcontract under a major hospital PPP, including insurance and multi-party stakeholder issues. Advising a major contractor through A$150 million of claims against an oil refinery client from initial claims through contract reset and repricing to completion.

BCS New Zealand - Auckland postal processing centre

Acted in an NZ$42 million adjudication claim against New Zealand Post arising from the automation project at the Auckland Processing Centre, the largest mail processing facility in the Southern Hemisphere. The assignment covered over 60 variation and delay claims, over 1,400 page of submissions, multiple interlocutory applications and simultaneous preparation for mediation and arbitration.

Also Advising on SOP strategy and adjudication applications across multiple active Australian projects in transport, energy and social infrastructure sectors.

Bank guarantees and insurance bonds – Calling, contestation, injunctions

Advising on the calling, contestation and injunction applications relating to bank guarantees and insurance bonds in connection with major infrastructure projects across multiple Australian jurisdictions.

Litigation – Contract disputes

Acted for the receivers of East Rockingham Waste-to-Energy Project Co in three simultaneous proceedings (two in the WA Supreme Court and one in the Federal Court of Victoria) arising from an EPC contract dispute involving financing, document access and patent infringement claims. Acting for a major contractor against a Queensland coal terminal in leading Supreme Court litigation spanning variations, extensions of time, programming, delay and disruption, liquidated damages and defects. Acting for a pipeline contractor in a dispute with a major Australian gas producer over an LNG pipeline forming part of a A$5.4 billion offshore gas project.

Arbitration – Domestic and international

Domestic and international construction arbitration under ACICA, ICC, LCIA, Resolution Institute and ad hoc rules, including assignments in renewable energy, defence infrastructure and cross-border project delivery. International experience extends to Singapore, Hong Kong, the UK, Japan and PNG. Acting for an EPC contractor in a significant arbitration concerning combustible cladding at a major commercial building.

Renewable energy disputes – Wind and battery developments

Acting for a head contractor in the resolution of construction disputes at a major wind farm. Managing negotiated resolution for a contractor in a large industrial dispute repriced and completed through commercial agreement. Acting for an EPC contractor on disputes arising from critical equipment failure on a major battery energy storage project.

Regulatory compliance – Approvals and compliance advice

Advising on regulatory approvals for high-voltage transmission infrastructure in New South Wales. Advising on construction industry compliance and WHS obligations for contractors on major transport, energy and social infrastructure projects. Advising on planning and regulatory compliance for major airport and defence facility capital works programs.

Overview

Areas of expertise

Delivery model selection and structuring

Procurement and bid support

Financial close and project financing

Contract negotiation

Contract administration and claims management

Security of Payment

Performance securities

Construction disputes – litigation

Construction disputes – arbitration

Construction disputes – expert determination and mediation

Regulatory compliance and critical infrastructure

Our experience