In the Media
Industry confidence wavers as infrastructure investment
falters
Increasing uncertainty in the infrastructure pipeline is
constraining business investment in skills and exacerbating the
existing capacity crunch, reveals Consult Australia's latest
skills survey (22 May 2023). More.
Why rising house prices could reverse in the next six
months
The sharp rebound in house prices is likely to wane and
even reverse unless interest rates start falling in the next six
months, warns TCorp chief economist Brian Redican (4 June 2023). More.
How to cut the number of builders going bust
Housing solutions are hard, but ensuring homes already in
the pipeline actually get built should stop the problem getting
worse. Here are some ways to help more builders stay afloat (2 June
2023). More.
Does land banking push up housing prices
As housing prices soar once again, pushing rents higher
and affordability beyond the reach of aspiring first-time buyers,
it's not clear whether land-banking by developers holds back
supply and pushes up prices, the National Housing Finance and
Investment Corporation says (1 June 2023). More.
Construction company and director lose licence following
death of worker
NSW Fair Trading has cancelled the contractor licence and
permanently disqualified GN Residential Construction Pty Ltd as
well as imposed a 10-year disqualification on the company's
director Nicholas Kodomichalos after the death of Christopher
Cassaniti when scaffolding collapsed in April 2019 (4 June 2023).
More.
Welcome help at hand for first home buyers
First home buyers will enjoy significant savings after the
NSW Parliament passed legislation to make stamp duty exemptions and
concessions available to more people (1 June 2023). More.
In practice and courts
Decisions Reserved as at 26 May 2023
The Court of Appeal maintains a list of matters before the
Court for which judgment is reserved. Read more here.
Published - articles, papers, reports
Better Planning for Stronger Growth
National Cabinet has meet in Brisbane and announced a
number of reforms to support a national approach to housing supply
and affordability, including offering incentives for new
build-to-rent projects (28 April 2023). Read more here.
NCC classification of Specialist Disability
Accommodation
The National Disability Insurance Scheme offers support to
eligible people for various types of Specialist Disability
Accommodation (SDA). Practitioners often seek advice about the
application of National Construction Code classifications to SDA -
and specifically whether classifications other than Class 3 can
apply. This article clarifies that Classes 1a, 1b, 2 and 3 could
each be appropriate for particular types of SDA - depending on the
nature of the building (2 June 2023). Read more here.
Cases
FKP Commercial Developments Pty Limited
v Zurich Australian Insurance Limited (No 2)
[2023] FCA 582
INSURANCE - separate question -
construction of design and construction professional indemnity
insurance policy - extension of cover clause - a requirement that
"the insured [be] legally liable in the provision of the
professional services" is not a causal requirement - the
provision by the insured of professional services must be a
substantive element of the factual matrix in which the liability
arises.
Home Building Act 1989 (NSW).
Noori Homes Pty Ltd v
Patel [2023] NSWCATAP
149
APPEALS - appeal on question of law - scope of question of
law.
APPEALS - from exercise of discretion - acting on the wrong
principle.
APPEALS - from exercise of discretion - Rregard to irrelevant
considerations.
APPEALS - leave to appeal - principles governing - leave to appeal
refused.
BUILDING AND CONSTRUCTION - Home Building Act 1989 (NSW) - Building
dispute - where the builder breached statutory warranties - money
order made against the builder.
Civil and Administrative Tribunal Act 2013 (NSW); Civil and
Administrative Tribunal Rules 2014 (NSW); Home Building Act 1989
(NSW); Home Building Amendment Act 2014 (NSW).
Masri v Commissioner for Fair
Trading [2023] NSWCATOD
73
ADMINISTRATIVE LAW - Home Building Act - administrative
review of decision to refuse application for owner builder permit -
special circumstances - occupancy.
CIVIL PROCEDURE - summary disposal - dismissal of
proceedings.
Administrative Disputes Review Act 1997; Civil and Administrative
Tribunal Act 2013; Environmental Planning and Assessment Act 1979;
Home Building Act 1989.
Owners SP 92450 v JKN Para 1 Pty
Limited [2023] NSWCA
114
BUILDING AND CONSTRUCTION - contract - implied terms -
statutory warranties - whether building complied with Building Code
of Australia (BCA) - where performance requirements of BCA
specified that external walls must be "non-combustible" -
whether external cladding met performance requirements for fire
resistance - Where cladding did not comply with
"deemed-to-satisfy" provisions - Where no
"alternative solution" prepared prior to issue of
construction certificate - Home Building Act 1989 (NSW), s 18(1)(c)
- where breach of s 18(1)(c) conceded.
BUILDING AND CONSTRUCTION - contract - damages - claim for
reinstatement damages - evidentiary onus of proving reinstatement
would be unreasonable.
Building Products (Safety) Act 2017 (NSW); Environmental Planning
and Assessment Act 1979 (NSW); Environmental Planning and
Assessment Regulation 2000 (NSW); Home Building Act 1989 (NSW);
Supreme Court Act 1970 (NSW); Uniform Civil Procedure Rules 2005
(NSW).
Trajkovski v Harrison
[2023] NSWCATAP 143
LAND LAW - Strata Schemes - apprehended bias - hearing
rule - alleged excessive interference in the proceedings - Section
237(5) of the Strata Schemes Management Act 2015 (NSW).
Civil and Administrative Tribunal Act 2013 (NSW); Strata Schemes
Management Act 2015 (NSW).
The Owners - Strata Plan No. 74442 v
Harrison [2023] NSWCATAP
144
LAND LAW - Strata Schemes - apprehended bias - hearing
rule - alleged excessive interference in the proceedings - Section
237(5) of the Strata Schemes Management Act 2015.
Civil and Administrative Tribunal Act 2013; Civil and
Administrative Tribunal Rules 2014; Strata Schemes Management Act
2015.
LCM Operations Pty Ltd v Rabah
Enterprises Pty Ltd [2023] NSWSC
590
CONTRACTS - brothers undertake property development
through two companies - defendant company owns land and provides
funds - related company is project manager - oral agreement -
project manager charges $14.8M fee for construction including cost
of build - fee recorded in "financial records" of both
companies - defendant claims tax deduction but does not pay fee -
project manager does not remit GST on fee - project manager wound
up by ATO - brothers' explanation of arrangement logically
uninviting - post-contractual conduct - claim in debt
successful.
SET-OFF - whether right to set-off loans made by defendant -
contractual right of set-off - principles at [182] -[184] - whether
right of set-off inferred from conduct - oral agreement -
post-contractual conduct - no contractual right of set-off.
RESTITUTION - Quantum meruit - principles at [208]-[210] -
defendant freely accepted benefit of project manager's services
- reasonable person would have realised project manager would
expect to be paid - unjust for defendant to retain benefit without
making restitution.
A New Tax System (Goods and Services Tax) Act 1999 (Cth);
Corporations Act 2001 (Cth); Income Tax Assessment Act 1997
(Cth).
Walker Corporation Pty Ltd v The
Owners - Strata Plan No 61618 [2023] NSWCA
125
LAND LAW - strata title - strata managing agent - where
three owner corporations of Finger Wharf development at
Woolloomooloo passed resolutions terminating appointment of strata
managing agent and appointing new one - where strata managing agent
is different to managing agent appointed for Wharf as a whole by
building management committee as a result - where clause of strata
management statement ("SMS") required owners'
corporations to "appoint and retain" the same strata
managing agent as the building management committee appoints as
strata manager for Wharf as a whole - whether clause of SMS
inconsistent with Strata Schemes Management Act 2015 (NSW), not
authorised by Strata Schemes Development Act 2015 (NSW) or
uncertain.
Masri v Commissioner for Fair
Trading [2023] NSWCATOD
73
ADMINISTRATIVE LAW - Home Building Act - administrative
review of decision to refuse application for owner builder permit -
special circumstances - occupancy.
}CIVIL PROCEDURE - summary disposal - dismissal of
proceedings.
Administrative Disputes Review Act 1997; Civil and Administrative
Tribunal Act 2013; Environmental Planning and Assessment Act 1979;
Home Building Act 1989.
Timilty Constructions Pty Ltd v Culina
(No 2) [2023] NSWCATAP
148
COSTS - APPEAL - NCAT - whether amount in dispute on
appeal was more than $30,000 - usual order under r 38 - whether
disentitling conduct - apportionment of issues - appeal allowed in
part - mixed success on appeal - exercise of discretion that each
party pay their own costs.
Civil and Administrative Tribunal Act 2013 (NSW); Civil and
Administrative Tribunal Rules 2014 (NSW); Home Building Act 1989
(NSW); Interpretation Act 1987 (NSW); Uniform Civil Procedure Rules
2005 (NSW).
McLachlan v Edwards Landscapes Pty
Ltd [2023] NSWSC
532
BUILDING AND CONSTRUCTION - jurisdiction of NSW Civil and
Administrative Tribunal under the Home Building Act 1989 (NSW)
- where claim substantively concerns breach of statutory
warranty.
APPEALS - leave to appeal - whether leave required - interlocutory
decisions - where matter transferred from Local Court to NSW Civil
and Administrative Tribunal.
Design and Building Practitioners Act 2020 (NSW); Home Building Act
1989 (NSW); Local Court Act 2007 (NSW).
The Owners-Strata Plan No. 86807 v
Crown Group Constructions Pty Ltd (No 2)
[2023] NSWSC 520
CIVIL PROCEDURE - originating process - amendment - claim
under Design and Building Practitioners Act 2020 (NSW) - where no
evidence of non-compliance with the Building Code of Australia -
discretionary matters - Where delay in bringing application - where
no evidence of irremediable prejudice - leave granted conditional
on evidence that building work did not comply with Building Code of
Australia.
CIVIL PROCEDURE - originating process - amendment - claim under
Design and Building Practitioners Act 2020 (NSW) - whether claim
apportionable - determination as to the applicability of Pt 4 of
the Civil Liability Act 2002 (NSW) unnecessary to grant of leave to
amend.
Building Code of Australia; Civil Liability Act 2002 (NSW); Design
and Building Practitioners Act (2020) (NSW); Environmental Planning
and Assessment Act 1979 (NSW); Home Building Act 1989 (NSW); Law
Reform (Miscellaneous Provisions) Act 1946 (NSW); Limitation Act
1969 (NSW); Limitation Act 1969 (NSW).
Goodman v Commissioner for Fair
Trading [2023] NSWCATOD
66
ADMINISTRATIVE LAW - Home Building Act - administrative
review of decision to refuse application for renewal of licence -
fit and proper person requirement - whether applicant took all
reasonable steps to avoid external administration - whether
applicant is capable of doing the work for which the certificate is
required.
Administrative Disputes Review Act 1997; Home Building Act
1989.
Legislation
NSW Legislation
Environmental planning instruments
Bathurst Regional Local Environmental Plan 2014
(Amendment No 21) - published LW 2 June 2023
Cabonne Local Environmental Plan 2012 (Map
Amendment No 3) - published LW 2 June 2023
Camden Local Environmental Plan 2010 (Map Amendment
No 3) - published LW 2 June 202
Central Coast Local Environmental Plan 2022 (Map
Amendment No 7) - published LW 2 June 2023
Cessnock Local Environmental Plan 2011 (Amendment
No 36) - published LW 2 June 2023
Dubbo Regional Local Environmental Plan 2022 (Map
Amendment No 4) - published LW 2 June 2023
Nambucca Local Environmental Plan 2010 (Amendment
No 32) - published LW 2 June 2023
Narromine Local Environmental Plan 2011 (Amendment
No 11) - published LW 2 June 2023
Tamworth Regional Local Environmental Plan 2010
(Amendment No 26) - published LW 2 June 2023
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.