Australia: Construction & Infrastructure - What's News - 22 May 2013

In the media

Firm's exclusion from Bendigo hospital tender unlawful, court rules
The Federal Court has ruled the Victorian Government's exclusion of a major construction company from building the Bendigo Hospital was unlawful. The Construction, Forestry, Mining and Energy Union (CFMEU) took action against the State Government over its handling of tenders for the Bendigo project (18 May 2013). More...

Green Star rating tool for public buildings helps keep budgets in the black

The Green Star – Public Building rating tool released after a two-year pilot period and extensive industry consultation opens the door to Green Star certification for Australia's public buildings, according to the GBCA's Chief Executive (14 May 2013). More...

New safety rules legislation to protect offshore workers
In passing the Offshore Petroleum and Greenhouse Gas Storage Amendment (Compliance Measures No.2) Bill 2013, the Senate has strengthened Australia's offshore petroleum regulatory regime to safeguard against the destruction caused by the uncontrolled release of hydrocarbons that was seen with the Montara Wellhead Platform in August 2009 (15 May 2013). More...

Building Australia's Future: 2013-2014 budget
The 2013–14 Budget not only continues the rollout of the Federal Labour Government's record capital works program, it also begins identifying future funding priorities, with the nation's regional highways and urban public transport infrastructure set to be the big winners (14 May 2013). More...

Roads to Receive Additional $3 Billion of Funding in budget
The federal government has signalled its commitment to road infrastructure with the announcement that three key road projects in Brisbane, Melbourne and Sydney will benefit from more than $3 billion of additional funding in the budget (14 May 2013). More...

House Price Growth slump in early 2013
House price growth in Australia's capital cities stagnated in the first quarter of 2013, according to the Housing Industry Association (HIA), with the price of established homes in Australia's capital cities edged up by just 0.1 per cent in the first quarter of this year (07 May 2013). More...

Australian Construction Index Hits Seven Month Low
In the latest sign of the fragility of the recovery in new building work, a leading indicator of construction industry conditions in Australia has dropped back to seven month lows. In April, the Performance of Construction Index contracted by 3.6 points to go from 38.6 to 35.2, according to the Performance of Construction Index report (07 May 2013). More...

Council to spend $1.9 billion on City of Sydney's infrastructure
City of Sydney Lord Mayor Clover Moore has committed to an overhaul of the inner city's streets and infrastructure by announcing that the council will embark on its largest ever capital spending program work worth $1.9 billion over the next decade (14 May 2013). More...

Second Sydney Airport an Environmental and Engineering Challenge
In releasing the technical study into Wilton's suitability as a site, Transport and Infrastructure Minister Anthony Albanese concluded that it was possible but it would involve environmental and engineering challenges (13 May2013). More...

Funding for Brisbane's Cross River Rail Secured in Budget
The Federal Infrastructure and Transport Minister Anthony Albanese outlines the Gillard Government's commitment to making Brisbane's vital Cross River Rail project a reality, with this week's Budget delivered initial funding of $715 million for this transformational project (17 May 2013). More...

New Bruce Highway Overtaking Lanes South of Isis River
Work has commenced on widening and strengthening the foundations of the southern approaches to the Isis River Bridge, adding to the extensive capital works program already underway along the entire length of the Bruce Highway (08 May 2013). More...

Melbourne construction standards get greener
The City of Melbourne increases efforts to become more environmentally sustainable by pledging an overhaul of building standards for energy, water and waste efficiency for new construction projects. The inner metropolitan council has put forward new building standards in its Planning Scheme Amendment C187 in the Melbourne Planning Scheme (17 May 2013). More...

$47 million to boost local infrastructure planning
The Victorian Coalition Government today committed $47 million to boost transport and planning infrastructure at the East Werribee Employment Precinct and Frankston station surrounds (07 May 2013). More...

Victoria invests $31.7 million to strengthen earth resources sector
The Victorian Coalition Government announced it will spend $31.7 million over four years on programs to build a strong, safe and sustainable mining industry, directed to reinvigorating the State's mining industry by driving a new wave of exploration and reducing barriers to investment (07 May 2013). More...

Increased infrastructure spend vital to Victoria's economic development
Engineers Australia welcomes the Victorian State Budget's plan to increase spend on critical public transport infrastructure and other Victorian infrastructure projects, with more than $520 million committed to infrastructure projects throughout the 2013-14 Victorian State Budget (08 May 2013). More...

Published – articles, papers, reports

House Price Indexes for: Eight Capital Cities, March 2013
Author: Australian Bureau of Statistics
The capital city indexes rose in Perth (+1.2%), Melbourne (+0.2%), Darwin (+1.9%) and Canberra (+0.2%) and fell in Brisbane (-0.3%), Adelaide (-0.1%) and Hobart (-0.3%). Sydney showed no movement for the quarter. Annually, house prices rose in Darwin (+8.0%), Perth (+6.1%), Sydney (+3.6%), Canberra (+1.5%), Brisbane (+1.4%), Melbourne (+1.1%) and Adelaide (+0.9%) and fell in Hobart (-1.9%) (07 May 2013). More...

Construction Industry in NSW: Background to the Insolvency Inquiry
Author: NSW Parliamentary Library Research Service. This e-brief sets out to provide a general survey of the industry, the key areas of activity and the main participants. It also looks at the regulation of the industry and at the more important recommendations of the Collins inquiry (08 May 2013). More...

National Partnership Agreement on Energy Efficiency Annual Report to COAG, 2011-12
Author: Council of Australian Governments
The annual consolidated report provided to COAG on overall progress on implementation. COAG Senior Officials, on behalf of COAG, have noted the report for 2011-12 (08 May 2013). More...

Energy in Australia 2013
Author: Bureau of Resources and Energy Economics (BREE)
The publication shows that the energy industry is a significant contributor to the Australian economy, and accounts for around 6 per cent of total industry value added in 2010–11, or around $79 billion. The report is also accompanied by a fact card of key energy facts for Australia (08 May 2013). More...

Cases

Construction, Forestry, Mining and Energy Union v State of Victoria [2013] FCA 445
INDUSTRIAL LAW – s 340(1) of the Fair Work Act 2009 (Cth) – whether respondent took adverse action against employees of independent contractor because those employees had a workplace right – whether the employer of the employee's was an "independent contractor" with whom the respondent was "proposing to enter into a contract for services" within the meaning of Item 4 of s 342(1) – meaning of "independent contractor", "proposing to enter" and "contract for services" – whether respondent took adverse action by threatening to refuse to engage independent contractor or make use of its services – meaning of "refuse to engage" – meaning of "threatening to take action" in s 342(2)(a) – whether threat capable of being made in the context of an agreed process – whether prohibition imposed by s 340 may be avoided by contract, waiver or estoppel – whether adverse action taken because the employees were entitled to the benefit of an industrial instrument – meaning of "entitled to the benefit" of a workplace instrument – consideration of s 361 and onus of proof.
CONSTITUTIONAL LAW – Melbourne Corporation limitation – whether ss 340-342 of Fair Work Act 2009 (Cth) exceed the Constitutional legislative capacity of the Commonwealth by imposing limitations upon the capacity of a State to select a contractor to provide major infrastructure.
PRACTICE AND PROCEDURE – s 21 of the Federal Court of Australia Act 1976 (Cth) – whether declaration may be made in the absence of a justiciable controversy. More...

Bluechip Development Corporation (Gladstone) Pty Ltd v Sunstruct Pty Ltd & Ors [2013] FCCA 141
CONSUMER LAW – Misleading or deceptive conduct – consumer protection – trade or commerce – construction management agreement – representations as to performance of various terms alleged to induce entry into agreement – finance agreement constituted by Tripartite Deed – representation as to performance of construction management agreement by entry into Tripartite Deed – claimant pursuant to Building and Construction Industry Payment Act (QLD) – alleged representation said to follow upon claim pursuant to that Act – no contravention established.
ACCESSORIAL LIABILITY OF DIRECTORS– Prima facie duty – no breach established DAMAGES – s.82 and s.87 – damages pursuant to s.82 exceed courts monetary jurisdiction – circumstances relevant to award of damages pursuant to s.87 – global damages sought – tactical decision to claim – no basis for favourable discretion.
CONTRACT – Breach of contract – terms of construction management agreement to determine works budget, cause works to be carried out, monitor costs, have available staff to fulfill terms, perform service to requisite standard – finding of no breach. TORT – Duty of care – breach of duty of care – evidence required to establish claim – failure to lead evidence –no breach of duty established.
FIDUCIARY DUTY – Question of vulnerability – arrangement commercial and guaranteed by contract – no conflict of duty and interest. BUILDING LICENSE – Duty pursuant to Queensland Building Services Authority Act to have builder's registration – nominee suffered illness through course of project – subsequent resignation of nominee as director of building company – contractual performance of oversight by nominee for corporate contractor. GLOBAL DAMAGES – Claimed in respect of tort, contract and fiduciary claim – strict requirement for proof. BUILDING AND CONSTRUCTION INDUSTRY ACT – Common law relief following adjudication – claim for supervision fees – favourable adjudication – basis for disposal at common law – award assessed. Building and Construction Industry Payments Act 2004 (Qld), Queensland Building Services Authority Act 1991 (Qld), s.42 (1), Trade Practices Act 1974 (Cth), ss.52, 87. More...

Go Electrical Pty Limited v Class Electrical Services Pty Limited [2013] NSWSC 517
Plaintiff forthwith repays to the defendant the sum of $39,166.19 which includes interest to the date of judgment. PRACTICE AND PROCEDURE - where monies recovered by a party under a judgment based on an adjudication determination - where adjudication determination is quashed and judgment set aside - right of the party from whom the monies were recovered to return of the monies - whether the Court has a discretion to not order repayment. Building and Construction Industry Security of Payment Act 1999 (NSW); Corporations Act 2001 (Cth); Uniform Civil Procedure Rules 2005; Civil Procedure Act 2005 (NSW). More...

Maxstra NSW Pty Ltd v Blacklabel Services Pty Ltd [2013] NSWSC 406
BUILDING AND ENGINEERING CONTRACTS - Building and Construction Industry Security of Payment Act 1999 - challenge to adjudication determination - claim for work either as variation or on quantum meruit - allegation that amount claimed is within the contract price - not a matter raised in payment schedule and inconsistent with contractual documents - allegation of denial of procedural fairness and error of law - no error of law involved in determination - alleged denial of procedural fairness had no practical impact - no jurisdictional error - Building and Construction Industry Security of Payment Act 1999. More...

St Hilliers Construction Pty Ltd v Fitzpatrick Investments Pty Ltd [2013] NSWCA 104
Orders that the appeal be allowed. BUILDING AND CONSTRUCTION - where contract required contractor to provide bank guarantees as security for performance - where contractor entitled to reduction of security if conditions fulfilled - whether conditions satisfied. More...

Silver Star Construction Pty Limited t/as Genesis Construction Australia v Denham Constructions Pty Limited [2011] NSWDC 254
Defendant (Denham Constructions Pty Limited) to pay the plaintiff's (Silver Star Constructions Pty Limited) costs. Security of payment; stay of enforcement; competing interests - The Building and Construction Industry Security of Payment Act 1999 (NSW) (SOPA); Civil Procedure Act 2005. More...

McNab NQ Pty Ltd v Walkrete Pty Ltd & Ors [2013] QSC 128
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – JURISDICTIONAL MATTERS –Employees of the subcontractor first respondent created a substantial safety risk in breach of instructions given by the applicant – The sub-contract allowed termination by the applicant for the first respondent's default "in the performance or observance of any serious condition" – The applicant terminated its sub-contract with the first respondent, alleging the first respondent's safety breach contravened a "serious condition" – A subsequent payment claim by the first respondent was upheld by an adjudicator under the Building and Construction Industry Payments Act 2004 – Whether the adjudicator had jurisdiction to determine the adjudication application – Whether the sub-contract had been validly terminated for breach of a "serious condition". More...

Lucas Drilling Pty Limited v Armour Energy Limited [2013] QCA 111
APPEAL AND NEW TRIAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF THE COURT – ORDERS SET ASIDE OR VARIED – where there was a contract under which the respondent undertook to provide drilling services to the appellant – where the appellant was granted an interlocutory injunction to restrain the respondent from calling on a bank guarantee which the appellant had procured in favour of the respondent – where the learned primary judge had established that there was a serious question to be tried and that the balance of convenience favoured the granting of injunctive relief, conditional upon the appellant (in this proceeding) paying the amount of the guarantee into court – where the appellant contended that the learned primary judge erred in the exercise of the discretion to grant interlocutory relief – whether the primary's judge's discretion miscarried. CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – OTHER MATTERS – where there was a contract under which the respondent undertook to provide drilling services to the appellant – where the appellant was granted an interlocutory injunction to restrain the respondent from calling on a bank guarantee which the appellant had procured in favour of the respondent – where the appellant contended that the learned primary judge erred in the exercise of the discretion to grant interlocutory relief – where there was a dispute about the proper construction of the contractual clause concerning the performance bond – where the appellant contended that, by virtue of its accrued rights, it was not obliged to return the performance bond, notwithstanding termination of the contract by the respondent – where the respondent contended that the appellant had no accrued rights and was obliged to return the performance bond – whether the proper construction of the contract obliged the appellant to return the performance bond – whether serious case to be tried. More...

G&N Building Contractors Pty Ltd v Queensland Building Services Authority [2013] QCAT 125
Summary Disposal – where the decision under review is not a reviewable decision – where Tribunal has no power to extend time. Smith v Queensland Building Services Authority [2010] QCAT 448; Customizer Kitchens Qld v Queensland Building Services Authority [2011] QCAT 13; Cornpig Pty Ltd v Queensland Building Services Authority [2011] QCAT 255. More...

McCarthy t/as PJ McCarthy Commercial and Residential Builders v The State of Queensland (No 2) [2013] QDC 104
COSTS ORDER - APPLICATION – summary judgment – application dismissed - statutory debt - Building and Construction Industry Payments Act 2004 (QLD) – section 19 - Uniform Civil Procedure Rules 1999 (QLD) – rule 292 – whether payment claim valid – progress payments – where no reference date specified under contract – where contract provided time for making payments was 'monthly' – where alleged multiple payment claims made in relation to earlier reference dates - whether a real prospect of defending a claim - whether no need for a trial – where plaintiff ought to be put to strict proof of his claim. More...

Jensen v Queensland Building Services Authority [2013] QCAT 121
GENERAL ADMINISTRATIVE REVIEW – PERMITTED INDIVIDUAL – relevant event – circumstances – insolvency – harassment and proposal to cancel licence – insulation scheme – non-payment by debtors – reasonable steps – previous proposal to cancel licence. Benz v Queensland Building Services Authority [2010] QCAT 625, applied FAI Insurances Ltd v Winneke (1981) 151 CLR 342, cited Papallo v Queensland Building Services Authority [2012] QCAT 59, applied Vadasz v Queensland Building Services Authority [2013] QCAT 84, applied Younan v Queensland Building Services Authority [2010] QDC 158, applied Younan v Queensland Building Services Authority [2011] QCA 1, applied. More...

Mt Cotton Constructions Pty Ltd v Brisbane City Council [2013] QCAT 119
JURISDICTION – where Council provided fill for hockey field – where builder claims fill unsuitable – where builder claims damages for removal of fill and reinstatement – whether tribunal has jurisdiction – whether a building dispute – whether commercial building dispute – whether reviewable commercial work – whether tribunal work. Fraser Property Developments Pty Ltd v Sommerfeld (No. 1) [2005] Qd R 394 Saliba v Bethscheider [1998] QBT 87. More...

Maxstra Constructions Pty Ltd v Gilbert & Ors [2013] VSC 243
BUILDING CONTRACTS - Building and Construction Industry Security of Payment Act 2002 (Vic) – Adjudication conducted under Part 3 Division 2 of the Act - Apparent conflict between s 10B(2)(c) with s 11(1)(b)(iv) of the Act - Conflict resolved by application of statutory construction principles -Adjudicator erred in statutory construction - Jurisdictional error - Certiorari granted - Determination of adjudicator quashed and matter remitted for determination in accordance with the law. STATUTES INTERPRETATION - Apparent conflict between provisions of an Act - Conflict resolved by application of statutory construction principles - Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 at [69]- [71] considered and applied. More...

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