Residential Focus: Part 2 - In the media, In practice and courts, Published articles, Papers & reports, Cases and Legislation

In the media

1700 aspiring owners stranded as Porter Davis goes under
The appointment of liquidators to Porter Davis Homes, Australia's 12^th largest home builder, has "left more than 1700 projects in the lurch across Victoria and Queensland, as well as a further 779 customers with projects signed but yet to start construction". The collapse of Porter Davis is "unlikely to be the last" (31 March 2023). More.

Loans for new home builds fall to record low
New home construction lending activity fell to a record low in February with new loans for owner occupiers falling 4.8% - the "lowest in Australian Bureau of Statistics records that go back to 2002". Loans for new home buildings have been plummeting since January 2021 and new home construction is also on the decline (3 April 2023). More.

Surging immigration exacerbates housing shortfall
Surging population and growth faster-than-expected rise in borrowing costs will widen the predicted housing shortfall from 62,900 to 106,300 by 2027. The "country's chronic housing shortage comes as the federal government's ability to respond to the crisis weakens", given the Albanese government's failure to pass the Housing Australia Fund Bill 2023 that would have created a $10 billion Housing Australia Future Fund to fund the development of 30,000 new social and affordable homes over five years (3 April 2023). More.

In practice and courts

Engineers Australia: Accredited programs
Engineers Australia has complied an updated list of EA-accredited engineering programs from Australian tertiary and VET education providers. (April 2023). Read more here.

Australian Building Codes Board: New ABCB support materials for Livable Housing Design provision in NCC 2022
The ABCB has released two new publications of the ABCB Handbook for Livable Housing Design and the ABCB Voluntary Standard of Livable Housing Design: Beyond Minimum to support practitioners' understanding of the new livable housing design provisions. (6 April 2023). Read more here.

Australian Building Codes Board: Register of Editorial Corrections
The ABCB has made corrections to the Livable Housing Design Standard to improve clarity. (6 April 2023). Read more here.

Australian Building Codes Board: Use of AS 1562.1 for demonstrating weatherproofing compliance of metal wall cladding panel systems
The ABCB has stated that F3D5(c) provision for demonstrating compliance of wall cladding panel systems under the NCC does not preclude the use of panel cladding systems that do not comply with the requirements of AS 1561.1. F3D5(c) introduces a new method of demonstrating compliance but it does not invalidate previously used methods. (5 April 2023). Read more here.

Australian Building Codes Board: NCC 2022 Volume One lighting calculator
The ABCB has released a new version of the NCC 2022 Volume One lighting calculator to assist in understanding and applying the provisions for energy efficiency. Read more here.

Australian Building Codes Board: NCC 2022 Volume Two lighting calculator
The ABCB has released a new version of the NCC 2022 Volume Two lighting calculator to assist in understanding and applying the provisions for energy. Read more here.

Published - articles, papers, reports

Standards Australia: Better, cheaper access to standards for tradies
Standards Australia have developed a mobile model that enables tradespeople, technicians and workers the ability to view compliance standards in real time. (6 April 2023). Read more here.

Australian Bureau of Statistics: Building approvals, Australia
The Australian Bureau of Statistics has released its latest statistics on the number of dwelling units and value of the buildings approved for February 2023 reference period (3 April 2023). Read more here.

Housing Industry Association: Housing supply worsens as demand increases
The demand for housing is increasing rapidly whereas increased production costs and less investment has resulted in construction and supply of housing to be well below necessary levels (3 April 2023). Read more here.

Housing Industry Association: Building and lending approvals stall under weight of the RBA
February 2023 had the lowest issue of loans for new homes since November 2008 (3 April 2023). Read more here.

Australian Bureau of Statistics: Engineering construction activity, Australia
Australian Bureau of Statistics has released its latest statistics on the number of engineering construction work done, commenced and yet to be done for December 2022 reference period (29 March 2023). Read more here.

Australian Institute of Architects: NSW student architecture awards celebrate future of design
The winners of the New South Wales Student Architecture Awards for 2022 designed policies and projects to drive more diverse and equitable housing, and plan new ways to rebuild flood zones (28 March 2023). Read more here.

Cases

Oxford (NSW) Pty Ltd v KR Properties Global Pty Ltd trading as AK Properties Group ABN 62 971 068 965 [2023] NSWSC 343
BUILDING AND CONSTRUCTION - contract - damages - defects - whether builder entitled to payment of invoices sued upon - whether building work incomplete - whether building work defective - whether cost of rectifying defects proved - whether owners entitled to claim for Hungerfords interest - whether director in breach of the duty prescribed by the Design and Building Practitioners Act 2020 (NSW).
Design and Building Practitioners Act 2020 (NSW); Environmental Planning and Assessment Act 1979 (NSW) and Home Building Act 1989 (NSW).

Deaves v Sigma Group NSW Pty Limited [2023] NSWCATAP 94
APPEAL - decision of Consumer and Commercial Division - purchase of a lot in a strata scheme upon which a dwelling was to be built - alleged breach of statutory warranties in s 18B of the Home Building Act 1989 (NSW) in respect of the dwelling as built - claims by purchaser against the developer and the builder under ss 18C and 18D - purchaser a successor in title within the meaning of that term in ss 18C and 18D - alleged completion of purchase of lot with knowledge of building defects - whether the Tribunal was correct to consider that decision by purchaser to complete with notice or assumed knowledge of defects in light of the non-exercise of potential redress under the conveyance contract between the purchaser and the developer precluded application of statutory warranties - jurisdiction of Tribunal in relation to additional claim under the Design and Building Practitioners Act 2020 (NSW) - questions of law raised on appeal - appeal upheld - costs - remitter to differently constituted Tribunal.
Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW); Design and Building Practitioners Act 2020 (NSW) and Home Building Act 1989 (NSW).

Dubow v Liddell [2023] NSWCATAP 93
CONTRACTS - oral contract - formation - offer and acceptance - terms of contract - sufficiency of evidence - no question of principle.
CIVIL PROCEDURE - hearings - procedural fairness - excessive intervention - indicia of - no question of principle.
Civil and Administrative Tribunal Act 2013 (NSW).

McIntosh v Lennon [2023] NSWCATAP 83
BUILDING AND CONSTRUCTION - Home Building Act 1989 (NSW) - owner - father purchases property in the name of his daughter - resulting trust - presumption of advancement rebutted - beneficiary of resulting trust within the definition of "owner" in the Home Building Act.
BUILDING AND CONSTRUCTION - Home Building Act 1989 (NSW) - owner-builder - owner-builder undertakes residential building work without an owner-builder permit - definition of owner-builder in the Home Building Act - proper interpretation of definition of owner-builder - legal meaning differs from literal meaning - definition includes owner-builders who undertake residential building work without a permit - alternatively, permissible to read definition as if it contained additional words - principles to apply when reading additional words into statute.
Home Building Act 1989 (NSW) and Home Building Amendment Act 2014 (NSW).

Colourrender (Australia) Pty Ltd v Sarkis; Sarkis v Colourrender (Australia) Pty Ltd [2023] NSWCATAP 90
APPEAL - whether Tribunal lacked jurisdiction having regard to the date of lodgement of the application - jurisdiction point not raised at first instance - calculation of quantum - whether there was procedural fairness - whether homeowners made a claim for breach of representations including whether representations were an implied term of the contract.
Competition & Consumer Act 2010 (Cth) and Home Building Act 1989 (NSW).

Cappello v HomeBuilding Pty Ltd [2023] NSWCA 61
PROCEDURE - application for leave to lodge caveat - interest in land created under Home Building Act 1989 (NSW), s 7D - leave required where earlier caveat allowed to lapse - attempt to prevent earlier caveat lapsing - no significant delay - interest in land based on assessed costs - judicial review of judgment dismissing appeal from costs assessment - limited prospects of success.
Home Building Act 1989 (NSW); Real Property Act 1900 (NSW) and Supreme Court Act 1970 (NSW).

O'Loughlin v Commissioner for Fair Trading [2023] NSWCATAP 87
OCCUPATIONAL - application for restoration of builder's licence previously held by appellant - whether failure to renew due to inadvertence - whether just and equitable to restore licence - application for new builder' licence or supervisor certificate - necessary qualifications for a licence or certificate - transitional arrangements.
LEAVE TO APPEAL - where grounds for leave to appeal are not established.
Home Building Act 1989 (NSW) and Civil and Administrative Tribunal Act 2013 (NSW).

AGY Global Wealth Pty Ltd v Gillies [2023] NSWCATAP 85
APPEAL - Notice of Appeal - filed outside of the prescribed time - whether extension of time should be granted - no sound recording or transcript of the Tribunal's oral reasons for decision filed - extension of time refused.
Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW) and Home Building Act 1989.

Legislation

NSW Legislation

Regulation and other miscellaneous instruments

Environmental Planning Instruments
Great Lakes Local Environmental Plan 2014 (Map Amendment No 4) - published LW 6 April 2023.
Port Macquarie-Hastings Local Environmental Plan 2011 (Map Amendment No 4) - published LW 6 April 2023.
Shellharbour Local Environmental Plan 2013 (Map Amendment No 2) - published LW 31 March 2023.
Shellharbour Local Environmental Plan 2013 (Map Amendment No 1) - published LW 31 March 2023.
Canada Bay Local Environmental Plan 2013 (Amendment No 23) - published LW 31 March 2023.

Commonwealth Legislation

Act Compilation
Fair Work Act 2009 31/03/2023 - Act No 28 of 2009 as amended.

Regulation and other miscellaneous instruments
Fair Work Regulations 2009 6/04/2023 - as amended.

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.