In the media
Building sector softens as residential and commercial
approvals fall again
While falling approvals point to residential building
peaking, the commercial sector is in deeper strife with permits
down 20 per cent over the year (30 May 2018).
More...
Cladding and compliance scandal: the saga
continues
While audits into cladding on high-rise buildings
continue to deliver bad news, the long-awaited Shergold and Weir
review of building regulations has thrown down the gauntlet to
building ministers to step up and adopt a national approach to
compliance and enforcement (30 May 2018).
More...
Construction activity remains weak as private sector
spending contracts
The ongoing spending spree by governments with big public
transport projects propped up the construction sector in the first
three months of the year (23 May 2018).
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National Review of Security of Payment Laws final report
released
The Turnbull Government has released the final report of
the Review of Security of Payment Laws, undertaken by Mr John
Murray AM. The comprehensive report makes 86 recommendations to
improve consistency in security of payment legislation and enhance
protections to ensure subcontractors get paid on time for work they
have done, regardless of which state or territory they operate in
(21 May 2018).
More...
MBA: Release of Final Report Into Security of Payment
Laws
Master Builders Australia welcomes the release of the
report by Mr John Murray AM following a comprehensive review of
various current Security of Payment regimes operating around
Australia. The 300+ page report is a comprehensive contribution to
what is an important issue for many participants in the building
and construction industry, right up and down the supply and
contracting chain (21 May 2018).
More...
In Practice and Courts
New South Wales
More housing options for NSW: Low Rise Medium Density
Housing Code
The
new Code will allow one and two storey dual occupancies, manor
houses and terraces to be built under fast-track
complying development approval across NSW and also promotes
good design for medium density housing. Low rise medium density
housing as complying development is only allowed where medium
density development is already permitted under a council's
local environmental plan. The Medium Density Housing Code will
commence on 6 July 2018.
Greenfield Housing Code
Starting on 6 July 2018, the new Code will be included in
the State Environmental Planning Policy (Exempt and Complying
Development Codes) 2008. In essence; it is a simplifying of
the development process and aligning the requirements for
development across Greenfield areas; the planning rules and the
code are also presented in plain English to clearly explain
planning rules. Note: There will be a three-year transitional
period, where applicants can choose whether to use the Greenfield
Code, or the new simplified Housing Code or Transitional Code
(until 13 July 2019).
More...
BPB: Certification data reporting - 1 month to go
Councils and A1-A3 certifiers should be preparing for the
1 July 2018 mandatory reporting date. The Board will have an
education focus for the first six months after this date (1 June
2018).
More...
BPB: How do the EP&A Act amendments affect your
certification work now?
The Environmental Planning and Assessment Act
1979 (EP&A Act) was amended on 1 March
2018. Along with new or changed provisions, the Act has been
reorganised and renumbered (31 May 2018).
More...
BPB: Certifiers cannot issue CDCs for 'lead-in
infrastructure'
Recent amendments to the Infrastructure SEPP now allow
certain lead-in infrastructure as complying development (31 May
2018).
More...
BPB: Approved online E1 CPD activity
The Board has approved CPD Training to deliver an online
continuing professional development (CPD) activity for E1 (swimming
pool) certifiers (28 May 2018).
More...
Cases
Commonwealth
Australian Building and Construction Commissioner v
Construction, Forestry, Maritime, Mining and Energy Union (Bruce
Highway Separate Question Case) [2018] FCA
771
PRACTICE AND PROCEDURE – application for an order
that a question of law be heard and determined separately –
all parties support the application – potential for prolonged
fragmentation of the trial process – application
refused.
Fair Work Act 2009 (Cth) ss.494, 497, 500, 550,
569A, 793; Federal Court Rules 2011 (Cth) r
30.01
Occupational Health and Safety Act 2004 (Vic);
Work Health and Safety Act 2011 (Qld) s.81.
Australian Competition and Consumer Commission v The
Construction, Forestry, Mining and Energy Union (No
4) [2018] FCA 684
COMPETITION – secondary boycott – pecuniary
penalties – course of conduct and totality principles –
relevance to penalty of actual loss and damage occurring in
secondary boycott – injunctions – compliance program
– form of declarations.
COSTS – Calderbank offer – relevant factors
– special consideration of regulator's
role.
COSTS – apportionment of costs.
Fair Work Act 2009 (Cth); Trade Practices
Act 1974 (Cth).
Australian Building and Construction Commissioner v
Hall [2018] FCAFC 83
INDUSTRIAL LAW – appeal from a judgment of the
Federal Court of Australia – where the primary judge had
found that the Australian Building and Construction Commissioner
had failed to establish that employees of the Construction,
Forestry, Mining and Energy Union, and the union itself, had
contravened ss.340, 343, 355 of the Fair Work Act 2009
(Cth) – whether the primary judge erred in applying the
presumptions in ss.360 and 361 of the Fair Work Act 2009
(Cth).
Kaboko Mining Limited v Van Heerden (No 2)
[2018] FCA 706
PRACTICE AND PROCEDURE – interlocutory application
– whether the Court should order the joinder of a person to
the proceeding – where the joinder of the defendant's
insurer would avoid multiplicity of proceedings and give effect to
the overarching purpose of the Court's civil practice and
procedure provisions – insurer joined as defendant -
Bankruptcy Act 1966 (Cth) s.117; Corporations Act
2001 (Cth) s.562.
Granite Transformations Pty Ltd v Apex Distributions Pty
Ltd [2018] FCA 725
PRACTICE AND PROCEDURE – application by first and
third respondents to strike out further amended statement of claim
– whether pleading sufficient to appraise first and third
respondents of case against them – whether each element of
each cause of action pleaded – section of further amended
statement of claim struck out with leave to re-plead.
Corporations Act 2001 (Cth) s.79.
New South Wales
AJ Gouros Investments Pty Ltd trading as Adelaide
Concrete Polishing & Grinding Pty Ltd v Pongraz
[2018] NSWCATAP 129
HOME BUILDING ACT – s.18D(1A) –
residential building work – identity of the parties to
contract – right of owners to claim for breach of statutory
warranties as "non-contracting owners" against direct
trade contractor or subcontractor to residential builder.
Chapman v Safework NSW [2018]
NSWCATAD 114
ADMINISTRATIVE LAW - High Risk Work Licence –
Dogging – Forklift Trucks – Bridge and Gantry Crane
– renewal documents not received by applicant - whether
exceptional circumstances to allow late lodgement of renewal
application.
In the matter of Powerpark Systems Pty
Ltd [2018] NSWSC
793
CORPORATIONS – statutory demand – application
to set aside creditor's statutory demand – demand based
on judgment arising upon filing of adjudication certificate under
Building and Construction Industry Security of Payment Act
1999 (NSW) – whether genuine dispute as to the existence
of the debt – whether debt is subject to offsetting claim
– whether "some other reason" to set aside demand
– whether foreshadowed curial proceedings to quash the
adjudicator's determination for jurisdictional error of law
amounts to a "genuine dispute" or "some other
reason" to set aside demand.
Lucchese v McDonell [2018] NSWCATAP
120
APPEALS – building engineering and related contracts
– general contractual principles – termination –
accrued rights – remuneration – deposit – cost of
rectification – proof of claim – departure from the
rules of evidence. . CIVIL PROCEDURE – inferior tribunal
– Civil and Administrative Tribunal (NSW) – multiple
appeals – practice and procedure – decisions and orders
– set-off of amounts found to be owed in separate
appeals.
Civil and Administrative Tribunal Act 2013 No 2
(NSW), ss.3, 36, 38(2), (4), 50, 81(1), 81(2).
Civil Procedure Act 2005 (NSW), s.90(2)(a);
Fair Trading Act 1987 (NSW), s.79U; Home Building Act
1989 (NSW), s.48O; Civil and Administrative Tribunal Rules
2014 (NSW), r 13.
Gregorio v Cheadle [2018]
NSWCATAP 118
HOME BUILDING ACT – Statutory construction
– s.18E proceedings for breach of statutory warranty –
limitation period for bringing claim by a successor in title
against owner builder – effect of amendment on limitation
period – nature of right of successor in title under section
18C of the Home Building Act to bring proceedings for
breach of statutory warranties.
GPM Constructions Pty Limited v Baker
[2018] NSWCATAP 119
CONTRACT – whether building contract on foot –
whether owner lost entitlement to damages for defective building
work in such a case – whether the owner had failed to act
reasonably or failed to mitigate her loss by not requesting the
builder to return to rectify defects.
HOME BUILDING ACT – s.48MA, preferred outcome
principle, relevant considerations, what order is
appropriate.
FAIR TRADING ACT – s.79U – applicability in
determination of claims under the Home Building Act
– modifications required by Home Building Act
– relevance of s.48MA of Home Building Act.
DISCRETION – order – making power under s.48O of
Home Building Act – application of preferred outcome
principle.
LEAVE TO APPEAL – findings of defects in building work.
Robinson v 470 St Kilda Road Pty Ltd
[2018] FCAFC 84
DAMAGES – loss or damage – assessment of damages
– causation – where the claim for damages was run as an
"all or nothing" case – whether the primary judge
erred in concluding that the consequence of the appellant's
failure to disclose its financial position was that the respondent
would not have paid a sum in respect of the payment claim –
where the primary judge's conclusion at trial was open on the
evidence adduced and the case as pleaded.
CONSUMER LAW – misleading or deceptive conduct – loss
or damage – assessment of damages – proportionate
liability – application of Competition and Consumer Act
2010 (Cth) Pt VIA, Proportionate liability for misleading and
deceptive conduct – "apportionable claim" –
"concurrent wrongdoer" – Tesco liability –
whether the director's liability for an act should be reduced
from 100% to 50% to be shared with the company.
Hebbel Constructions Pty Limited v Bitar Pty Limited
and Anor [2018] NSWSC
758
PRACTICE AND PROCEDURE – application under r 26.6
of the Uniform Civil Procedure Rules 2005 (NSW) for the
discharge of a Court-appointed receiver – whether it is just
and convenient for the receiver to remain in office.
Liang v Wincrest Group Pty Ltd
[2018] NSWCATAP 126
APPEAL: Home building – whether denial of
procedural fairness – whether apprehended bias –
adequacy of reasons - whether error of law established –
whether leave to appeal should be granted.
Islam v Metricon Homes Pty Ltd
[2018] NSWCATAP 116
APPEAL – Costs – Gross sum costs orders.
Horvath v Heath [2018] NSWCATAP
141
APPEAL – failure to appear at Tribunal hearing –
whether denial of procedural fairness – whether leave ground
established – whether leave to appeal should be granted.
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.
