By Phillip Davenport
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Additional resources for Fundamentals of Building Contract Management
Usually, enemy aliens and unincorporated associations have no capacity to bind themselves in contract. An unincorporated association exists where two or more persons form an association with common aims, for example a tennis club, but do not have the club registered as a corporation. The association consists of those persons who form it and is not a separate entity from the persons making it up. A contract can be made by the members of the club or by several members acting as trustees, but the club is not a legal person, it is merely the name given to the relationship between the members.
The principal should be able to avoid the ‘contract’ to pay extra. The principal’s grounds would be that the ‘contract’ to pay extra was void for want of consideration. 5 Capacity of parties Not all persons who want to enter into a contract are able to do so. In law, a company formed and registered pursuant to an Act of Parliament is regarded as a ‘person’. The Interpretation Act 1987 (NSW) s. 21 provides that in any Act ‘person’ includes an individual and a corporation, the singular includes the plural and vice versa, and a reference to gender includes any gender.
In Australia, as in England, there is a second type of standard form of general conditions favoured by engineers. In England it is the ICE Conditions (now in the sixth edition) and the New Engineering Contract (NEC) 1995. In Australia it is exemplified by the Standards Association’s general conditions AS2124. These general conditions can be traced back through CA 24 (published by the Standards Association in 1973) to earlier editions of the ICE Conditions. The FIDIC (4th edition, 1987) conditions are also based on the English ICE Conditions.