Profiling of construction disputes in private projects

Abstract

Construction disputes often break out due to multiple causes and are attested by numerous court cases reported in law journals. While lessons could be learned from previous incidents, recurrence should be avoided. Profiling process comprised of studying patterns of conducts of particular data subjects and categorising such subjects in relation to exhibited conduct is found to be lacking in the subject of construction disputes. Hence, this research aims to develop a construction dispute profile based on legal cases to improve the contract management practice. The objectives of the research are to establish the attributes as well as the causes of disputes involved, to identify the legal issue(s) arising from construction dispute cases and finally to develop a validated dispute profiling framework. Doctrinal legal research and a review of the literature were adopted as the methodology of the research. This qualitative research approach used Issue, Rules, Analysis, Conclusion (IRAC) and content analysis techniques to analyse the data. Fifty four (54) Malaysian reported construction dispute cases related to contractual issues occurring in private construction projects between the years 2000 and 2013 were identified and used as the data. The three main attributes for identification were disputed projects, case and court process characteristics. Results indicated that there are six subgroups of causes of construction dispute emerging from the cases, namely contract law, law in tort, payment, determination, time, and site and execution of work. Under the payment subgroup, non-payment showed the highest frequency among others. Some legal issues pertaining to retention sum and winding up were also identified. The cases, attributes and causes of disputes established were used as a basis to develop a framework of the construction dispute profile. To validate the practicality of the proposed construction dispute profile framework, an online questionnaire survey validation process was carried out. Majority of the respondents concurred with the findings and agreed that the framework could be the basis for the development of construction disputes database system in the future.