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In the media
Conditions remain fairly dire for Australia's
residential construction sector
Conditions across Australia's construction sector
remain weak, but they're not quite as severe as they were
earlier in the year. Activity levels for residential and commercial
construction are going backwards but are stable for engineering
firms (05 April 2019). More...
Timber towers: In pursuit of perfect high-rise
A high-rise built out of timber, not steel? It's a
solid idea according to QUT structural engineering researcher Dr
Craig Cowled, who's embarked on a three-year project to work
out the perfect way to build carbon-storing, timber-framed
"plyscrapers" (05 April 2019). More...
Federal Court penalises CFMMEU $78,000 after coercing
worker to pay union fees
The Federal Court has today imposed total penalties of
$78,000 against the CFMMEU and two of its shop stewards for
coercing a worker to pay union fees on two separate construction
sites in the Melbourne CBD (04 April 2019). More...
'Near misses like you wouldn't believe':
Tradies detail workplace dangers
Tradies have revealed the danger and violence that unfolds
on construction sites following two horror incidents at Sydney
projects this week. Two tragic workplace deaths have prompted
terrified tradies to speak up about unsafe construction sites,
fearing further accidents (04 April 2019). More...
Crane Spotting: Sydney construction falls while
Melbourne peaks
Melbourne construction continues to surge with an increase
of cranes standing across its CBD and suburbs reaching a peak of
222, a 40 per cent rise since March last year. In contrast,
Sydney's residential sector has recorded a slight 10 per cent
decline (28 March 2019). More...
Home values continue to cool but selling days begin to
shorten
Home values slipped mostly around the country, but held
steady in one capital city, according to the latest CoreLogic data.
Combined, the daily home value index fell by 0.2 of a percentage
point in the week ending 24 March. Houses remained more popular
than units, and the average time for houses on market continued to
remain high in most capital cities (26 March 2019). More...
SafeWork continues its investigation of Macquarie Park
scaffolding site
SafeWork will examine a range of factors including the
qualifications of relevant workers, environmental conditions, the
load carried by the scaffolding, as well as the design,
construction and maintenance of scaffolding (04 April 2019). More...
Published
Re-building the social license for asset recycling
Consult Australia: March 2019
Consult Australia argues that the case for asset recycling cannot
be ignored and calls on the government to increase their focus on
creating the right conditions for successful transfers that are in
the public interest. To support this renewed focus, the report
outlines six recommendations for governments across Australia. More...
ABCC industry update February - March 2019
Welcome to the February - March 2019 edition of Industry
Update, our quarterly online newsletter. Industry Update provides
updates on the latest activities of the ABCC, industry trends, and
emerging issues (25 March 2019) More...
Australian Bureau of Statistics
02 April 2019
Building Approvals, Australia, Feb 2019 (cat no. 8731.0)
Practice and courts
ABCB: Accessible Housing Options Paper Consultation
Report now available
The feedback from the Accessible Housing Options Paper has
been summarised into a Consultation Report (04 April 2019) More...
ABCB reminder: NCC 2019
All three volumes of the NCC 2019 preview, as well as The
Guide to Volume One, are now available to download. To get
your copy, log into your NCC account through the NCC Online or
create your NCC
account and login to access. NCC 2019 will be adopted from
1 May 2019. If you'd like an overview of the key changes and
dates, please check out the latest ABCB Connect article.
'
What to expect in NCC 2019'
ABCC fitness for work audits of code covered
entities
The desktop audits assess whether code covered contractors
that are required to have an ABCC approved Workplace Relations
Management Plan (WRMP) in place are complying with
the drug and alcohol testing requirements in their WRMP.
Contractors with WRMPs are reminded of the Code's requirement
to conduct as a minimum, frequent and periodic testing (at least
once per month) of the workforce. Find out more about your
fitness for work responsibilities and
WRMPs. (March 2019)
Australian Industry Standards 2019
All 11 IRCs we support have held their first meetings for
the year to finalise the draft 2019 Skills Forecasts and Proposed
Schedules of Work which prioritise the skill needs of their
industry sectors and propose future Training Package development
activity. All industry stakeholders will have the opportunity to
review the
draft Skills Forecasts and provide feedback until 8 April. Each
IRC will approve the final version to be submitted to the
Australian Industry Skills Committee (AISC) on 30
April 2019. More...
City of Sydney: Alternative Housing Idea Challenge
The community will have the opportunity to provide
feedback on the short-listed concepts as part of the City's
consultation to shape
Sydney 2050. The Alternative Housing Ideas Challenge will close
on Wednesday 8 May 2019. More...
New dates for Environmental
Planning & Assessment Act updates
Councils, certifiers and other industry practitioners have
more time to implement some of the recent EP&A Act updates.
Changes affect new provisions for
building and subdivision certification,
Local Strategic Planning Statements for councils in the Greater
Sydney Region and
Community Participation Plans. While most of the changes will
commence on 1 March 2018, there will be a number of other changes
that will involve further design and consultation from mid to late
2018 outlined here
Cases
Webster v Tom
[2019] NSWCATAP 75
APPEALS – home building claim against builder
– allegation of home owners as to a misclassification of
building site by an engineer not joined as a party by the owners
– terms of builder's engagement – agreed scope of
works for builder - no error of law – competing expert
evidence on ongoing cracking and the construction of piers -
whether the Tribunal's findings were not fair and equitable or
against the weight of evidence – whether new evidence was
reasonably available - no other grounds for leave to appeal –
appeal dismissed .
Tom v Jenkins
[2019] NSWCATAP 74
APPEALS – builder's claim against engineer for
indemnity in respect of builder's liability to home owners for
defective residential building work – builder's claim
based on allegations of negligence and misleading conduct -
extension of time required to appeal – lack of procedural
fairness – statutory interpretation of s 48K of the Home
Building Act – lack of jurisdiction for the Tribunal to
determine the builder's claim – appeal dismissed.
Scarano v Palm Pools and Spas
Pty Ltd [2019] NSWCATAP
79
HOME BUILDING – Whether the Tribunal erred in
failing to find that an agreed damages clause is a penalty clause
– Whether the appellant should be granted leave to raise a
ground on appeal which was not argued before the Tribunal
–– Whether the Tribunal should have considered the
appellant's claim under the Australian Consumer Law instead of
the Contracts Review Act.
Ashton v Stevenson; Stevenson v
Ashton [2019] NSWCATAP 67
In AP 18/31090: (1) The appeal on grounds 1, 2, 3 and
4 allowed. (2) Set aside Order 1 in the Decision and the Respondent
is to immediately pay to the Appellant any amount paid under the
Order. Home Building – Date of Completion of residential
building work – major defect – proof of elements
– limitation periods. Home Building Act 1989;
Environmental Planning and Assessment Act 1979; Civil
and Administrative Tribunal Act 2013.
Botany Bay Apartments Pty Ltd v
Badolato [2019] NSWSC
296
BBA is a building company. LAND LAW – conveyancing -
two contracts for sale – off-the-plan purchase CONSUMER LAW
– misleading or deceptive conduct – whether the vendor
breached ss 18 and/or 30 of the Australian Consumer Law –
whether the vendor made a representation as to the size of the
properties – vendor denied making such a representation
– assessment of the relative credibility of representor and
representee – fallibility of human memory – reliance
upon contemporaneous documents to resolve dispute – where the
contemporaneous documents pointed strongly to the representation
not being made – where, in any event, the purchaser was on
notice within the cooling off period that no such representation
was being made – claim unsuccessful CONSUMER LAW –
unconscionably – where the purchaser alleged that the vendor
was aware of new plans affecting the size of the properties –
where such knowledge was purported to have been acquired during the
cooling off period - whether the vendor indeed had such knowledge
– paucity of evidence in support – purchaser under no
special disadvantage – claim unsuccessful CONSUMER LAW
– harassment and coercion under s 50 Australian Consumer Law
– unsuccessful settlement conference after the commencement
of proceedings – purchaser given three options including
continuing with court proceedings – whether this amounted to
coercion – meaning of coercion – no negation of choice
or freedom to act – claim entirely misconceived.
Dassouki v Department of Fair
Trading [2019] NSWCATOD 45
The applicant's application for costs is
dismissed.
COSTS - where parties disagreed as to the meaning of the
Tribunal's orders – where applicant brought contempt
proceedings to enforce orders – where, at first directions
hearing, applicant conceded that respondent's interpretation of
Tribunal's orders was correct - whether special circumstances
exist which would justify a costs order. Administrative
Decisions Tribunal Act 1997 (NSW); Civil and
Administrative Tribunal Act 2013 (NSW); Home Building Act
1989 (NSW).
The Owners - Strata Plan 87265 v
Saaib [2019] NSWSC 289
COSTS – security for costs – relevant
factors – impecuniosity – delay – risk of
stultification – plaintiff's impecunious attributable to
the defendant's conduct.
COSTS – security for costs – plaintiff strata
corporation – liability of members.
Hutchings v Hope
[2019] NSWCATAP 59
CONTRACT LAW – Contract to do residential
building work – Sham – Unenforceable of contract under
Home Building Act 1989 – "just and
equitable" to recover on a quantum merit basis.
ADMINISTRATIVE LAW – Adequacy of reasons – failure to
provide analysis of evidence – failure to make relevant
findings.
Onethree Pty Ltd v
Seaman [2018] NSWCATCD
83
BUILDING AND CONSTRUCTION - Liquidated damages –
Right to claim common law damages.
Buckley v Ashby; Ashby v
Buckley [2018] NSWCATCD 82
BUILDING AND CONSTRUCTION - Extrinsic evidence –
Use of to identify the subject matter of the contract, Termination
of contract - Acceptance of repudiation Home building –
unenforceable claims - Restitution.
The Owners – Strata Plan
No. 80412 v Vickery [2019] NSWCATAP 71
APPEALS – Leave to appeal an interlocutory
decision – application for summary dismissal –
principles applicable – issue raised on appeal not raised in
proceedings at first instance – relevance of prospect if
appeal to superior court in exercise of discretion to grant leave.
SUPREME COURT – Referral of questions of law – refusal
to refer.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.
