Australia

In the media

Why technology has not transformed building
If you took a worker from a 1920s construction site and transported them to a present day project, they would not be that surprised by what they saw, according to Sam O'Gorman. "Overall, across Europe and the US, stuff is still built in a pretty manual fashion – not very different to the way it would have been built 100 years ago," says Mr Gorman, an associate partner in the property practice of consultancy firm McKinsey (24 May 2024). Read more here.

Pilot program for Community Housing Providers takes flight!
Today the NSW Government is launching a new pilot program to help 20 Community Housing Providers (CHPs) navigate the planning system to support the delivery of more affordable and community housing. The Community Housing Concierge program will assist CHPs to build planning capability and efficiently work with the planning system to support the delivery of more than 3,600 affordable homes in the next five years (24 May 2024). Read more here.

Broadmeadow's future mapped for the next 30 years
The NSW Government welcomes the City of Newcastle releasing a bold vision for Broadmeadow to outline how housing, employment opportunities and public spaces are developed over the next 30 years. Council's draft Broadmeadow Place Strategy envisages the revitalisation of a 313-hectare precinct, three kilometres west of Newcastle's CBD, with up to 20,000 new homes and 15,000 jobs while retaining Broadmeadow as the region's premier sport and entertainment destination (22 May 2024). Read more here.

Budget Secretly Housing an Opportunity
Housing is one of the most pressing challenges facing the nation and all eyes are on the anticipated packages in the Federal Budget aimed at alleviating the housing crisis. Australian Constructors Association CEO Jon Davies says "Long-term solutions are needed, and the government's Future Made policy presents a chance to make significant productivity gains through Modern methods of construction". Mr Davies adds that "modern methods of construction (MMC) could revolutionise how projects are built, shifting more work to factories. This form of construction is far more productive as it is standardised, takes place in controlled environments and is not subject to site-based risks such as inclement weather. It creates more opportunities for skilled workers in safer environments with increased opportunities for flexible work hours" (9 May 2024). Read more here.

Home building hotspots in the Hunter revealed
The Housing Industry Association (HIA) today revealed Australia's strongest markets for home building in the 2024 edition of the HIA Population and Residential Building Hotspots Report. The Report identifies Australia's fastest-growing suburbs and regional 'hotspots' based on population growth and also indicates areas with high levels of building activity and, therefore, employment for the building industry 23 May 2024). Read more here.

Land supply re-emerging as the number one constraint on home building
HIA Senior Economist Tom Devitt states that "a modest recovery in residential lot sales has pushed up prices again in a number of markets, indicating a shortage of shovel-ready land". Mr Devitt adds that "state and local governments that do not help bring sufficient shovel-ready land to market – both greenfield and infill – will struggle to do their share of the Australian government's national target of 1.2 million new homes over the next five years" (20 May 2024). Read more here.

In practice and courts

NCC 2025 Public Comment Draft
The Australian Building Codes Board (ABCB) are proposing changes to National Construction Code (NCC) Volume One to improve the requirements for fire hazard properties of a building material, component, or assembly (5 May 2024). Read the draft here.

NCC 2025 Public Comment Draft – Use of an Accredited Testing Laboratory
The Australian Building Codes Board (ABCB) are proposing to include additional instances for when an Accredited Testing Laboratory (ATL) must be used to determine if a material, assembly or product complies with certain requirements of the National Construction Code (NCC) (5 May 2024). Read the draft here.

Publications

Silica-related regulatory updates
Safe Work Australia (SWA) is finalising regulations to implement recent decisions made by WHS Ministers. These regulations will define 'engineered stone', detail the prohibition starting 1 July 2024, and establish model transitional arrangements for contracts made before 31 December 2023 that won't be completed by 1 July 2024 (21 May 2024). Read more here. Read the guidance on the engineered stone prohibition and regulation of crystalline silica substances here.

Changes to NSW Strata and Community Land Laws
Strata has become a large and complex part of the housing mix in NSW. The laws have been updated. They aim to make strata and community living fair and clear. The changes implement 31 recommendations from the 2021 Report on the Statutory Review of the Strata Schemes Development Act 2015 and Strata Schemes Management Act 2015 and align community land laws with strata laws. The Report's recommendations were informed by public consultation on the strata laws (14 May 2024). Read more and access the legislation changes here.

Cases

Cole v Commissioner for Fair Trading [2024] NSWCATOD 65
ADMINISTRATIVE LAW – Home building – application to vary licence – application of Instrument – experience requirements – 'wide range of building construction work' – 'remuneration' – 'relevant application form'.
Administrative Decisions Review Act 1997 (NSW); Home Building Act 1989 (NSW); Licensing and Registration (Uniform Procedures) Act 2002 (NSW)

Jones v Mega Awesome Kapow Constructions Pty Ltd [2024] NSWCATAP 86
APPEALS – particular bodies – NCAT – power to correct decisions under s 63 of the Civil and Administrative Tribunal Act 2013 – whether own motion decision to amend previous order by increasing amount claimed is the correction of an obvious error.
APPEALS – leave to appeal – whether decision under s 63 of the decision Civil and Administrative Tribunal Act 2013 is an ancillary or interlocutory decision – whether leave to appeal required – leave to appeal granted.
BUILDING AND CONSTRUCTION – uninsured building work – builder given leave to recover on a quantum meruit for identified work – s 94 Home Building Act 1989 – whether part-payments made by homeowner to be taken into account and credited to homeowner when calculating amount owning on quantum meruit – whether part-payment for work can be set-off against amount claimed for work on quantum meruit – equitable set-off – onus on builder to prove work done.
Civil and Administrative Tribunal Act 2013 (NSW) s 4, 38, 63, 80, 81 and cl 12(1) of Sch 4; Home Building Act 1989 (NSW) s 7, 94.

Metricon Homes Pty Ltd as trustee for Metricon Homes Unit Trust v Lipari [2024] NSWSC 566
BUILDING & CONSTRUCTION – plaintiff constructed house for defendant – plaintiff sued defendant for unpaid balance of contract price – defendant claimed entitlement to set-off for defects and brought cross-claim against plaintiff and against structural engineer – whether defects established – extent of defects – consequences of defects – proper measure of damages.
CONSUMER LAW – misleading or deceptive conduct – claim arose from communications concerning location of swimming pool – whether pleaded representations were made – whether representations were as to future matters or representations of opinion – whether representations were misleading – whether any loss or damage was suffered because of the representations.
Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, ss 4, 18; Design and Building Practitioners Act 2020 (NSW), s 37; Home Building Act 1989 (NSW), s 18B.

Oxford (NSW) Pty Ltd v KR Properties Global Pty Ltd [2024] NSWSC 613
FREEZING ORDERS – no question of principle.
Civil Procedure Act 2005 (NSW) s 56; Design and Building Practitioners Act 2020 (NSW) s 37; Uniform Civil Procedure Rules 2005 (NSW) rr 25.11, 25.14(1)(a)(i) and (4)(b)(i).

Allsopp v Owners Corporation SP6006 [2024] NSWCATAP 93
COSTS – award for costs where appeal dismissed for non-appearance of appellant – special circumstances – appellant failing to appear at hearing of appeal despite expressly requesting a hearing – failure to comply with duty under s 36(3) of the Civil and Administrative Tribunal Act 2013 (NSW) – claim for lump-sum award of costs – principles applicable to fixing lump-sum.
Civil and Administrative Tribunal Act 2013 (NSW); Strata Schemes Management Act 2015 (NSW).

Minos v S.J. Timilty Building Pty Limited (Deregistered) [2024] FCA 512
CORPORATIONS – application for reinstatement of a deregistered company pursuant to s 601AH(2) of the Corporations Act 2001 (Cth) (Act) – application for orders that the company be wound up pursuant to s 461(1)(k) of the Act and liquidator to be appointed – whether plaintiffs are a "person aggrieved" within the meaning of the Act – where plaintiffs may have claims against the company under the Home Building Act 1989 (NSW) – whether the reinstatement of the company would be just – whether winding up of company would be just and equitable – application granted – orders made.
Corporations Act 2001 (Cth) ss 461, 601AA, 601AH; Home Building Act 1989 (NSW) ss 3B, 18B, 18C, 18E.

Lane v AGY Global Wealth Pty Ltd t/as Skylight Energy [2024] NSWCATAP 83
JUDGEMENTS AND ORDERS – res judicata and issue estoppel – applicable principles – application where party not a party to the proceedings – Anshun estoppel – principles applicable – abuse of process – subsequent proceedings where issue lost in earlier proceedings by party propounding issue.
EQUITABLE DEFENCES – equitable set-off – availability in Tribunal proceedings – principles applicable – ability to set-off judgement in Local Court against claim in Tribunal dealing with the same subject matter.
Civil and Administrative Tribunal Act 2013 (NSW); Civil Procedure Act 2005 (NSW); Gas and Electricity (Consumer Safety) Act 2017 (NSW); Home Building Act 1989 (NSW).

Yu v Commissioner for Fair Trading [2024] NSWCATOD 61
ADMINISTRATIVE LAW – Home building – application for individual contractor licence – application of Instrument – experience requirements – 'wide range of building construction work.
Administrative Decisions Review Act 1997 (NSW); Home Building Act 1989 (NSW); Licensing and Registration (Uniform Procedures) Act 2002 (NSW).

Hawcroft v Building Commission NSW [2024] NSWCATOD 60
ADMINISTRATIVE REVIEW – Home Building – application for variation of contractor licence – qualification and experience requirements set out in instrument issued by the Respondent – whether the applicant meets the requirements of the Instrument.
Administrative Decisions Review Act 1997; Home Building Act 1989; Mutual Recognition (New South Wales) Act 1992.

Legislation

Bills introduced by Government
Residential (Land Lease) Communities Amendment Bill 2024 – introduced LA 14 May 2024

Non-Government
Environmental Planning and Assessment Amendment (Affordable Housing) Bill 2024 – introduced LA 16 May 2024

Bills passed by both Houses of Parliament
Property NSW Amendment Bill 2024 – passed by both Houses 14 May 2024

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.

Residential Focus: Part 2 - In the media, In practice and courts, Publications, Cases and Legislation

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