Introduction
It is a relatively quiet time for the construction industry.
This goes some way to explaining the hype surrounding a decision
involving a bank's overdraft facility, which some commentators
suggest casts doubt over the enforceability of time bars under
construction contracts.
This article will briefly summarise the key aspects of the High
Court decision in Andrews v Australian and New Zealand Banking
Group [2012] HCA 30 (Andrews) and present an
alternative approach that may be taken when considering whether
Andrews will stymie the future use of time bars in construction
contracts.
The Andrews Decision
Andrews related to a class action commenced by customers of ANZ
Banking Corporation (ANZ) alleging that (among
other things) a clause requiring customers to pay an "over
limit" fee where an "instruction" by the customer to
ANZ to withdraw an amount from the customer's account, which
would overdraw the account, was unenforceable as it constituted
