In the media
ABCC officers visit Pacific Complete project to talk
about security of payment responsibilities
Australian Building and Construction Commission officers
will be in northern New South Wales talking to contractors involved
in the $4.3 billion Pacific Complete project about their security
of payment responsibilities. While visiting the area the officers
will also conduct compliance checks of contractors involved in the
project to make sure they are doing the right thing by their
subcontractors (21 August 2018).
More...
New South Wales
Western Sydney Airport preparing for take-off
Western Sydney Airport has reached another major
milestone, with companies now invited to bid for a major contract
to undertake the mammoth task of clearing and levelling the site
(16 August 2018).
More...
Queensland
Adani Queensland mine rail line financing
'close'
Adani is close to locking in the finance for a rail line
to service its $16.5 billion Queensland coal mine, the son of the
company's owner says. Previously, Australia's big four
banks refused to put up money for the mine, forcing the company to
look for funding overseas (18 August 2018).
More...
Adani Indigenous challenge dismissed by Federal Court,
Government could cancel mine native title
Traditional owners who oppose the Adani mine have appealed
to the Queensland Government not to permanently extinguish their
native title rights before they take their case to the High Court
(17 August 2018).
More...
Building regulation for cladding
From 1 October 2018 new regulation will come into force
requiring building owners to take action to address combustible
cladding. The QBCC will enforce the program and ensure that
building owners undertake the appropriate assessments within the
required time frames (16 August 2018).
More...
Victoria
New solar jobs in the valley to keep powering
Victoria
A re-elected Andrews Labor Government will put the Latrobe
Valley at the centre of the booming solar industry with a new
Morwell-based government agency, Solar Victoria, to deliver our
$1.3 billion Solar Homes program (24 August 2018).
More...
VBA wins right to appeal Federal Court ruling on Mutual
Recognition
The Victorian Building Authority (VBA)
has won the right in the High Court of Australia to appeal a
decision of the Federal Court that overturned the AAT decision to
permit character to be taken into account in relation to
applications for registration under the Mutual Recognition Act
1992 (Cth) (24 August 2018).
More...
$5bn welcome contribution to make MARL a reality
The infrastructure sector has welcomed the Andrews
Government's $5bn commitment to build the Melbourne Airport
Rail Link (23 August 2018).
More...
Published
BMF Communique August 2018
The Building Ministers Forum have issued a communique
following their meeting on 10 August 2018. The Forum discussed
their views on the 'Building Confidence – Improving
the effectiveness of compliance and enforcement systems for the
building and construction industry across Australia'
Report (Building Confidence Report). The Building
Confidence Report makes 24 recommendations fundamental to the
effective delivery of Australia's National Construction Code
(NCC). Ministers also continued their discussion
of the national Review of Security of Payment Laws: Building
Trust and Harmony. The BMF agreed to work collaboratively to
consider ways to improve consistency between security of payment
regimes across jurisdictions(21 August 2018).
More...
In practice and courts
ABCC Reminder: Security of payments – nation-wide
campaign commences in August
The ABCC has begun a nation-wide campaign to educate
contractors on their responsibilities to pay their subcontractors
on time under the Code for the Tendering and Performance of
Building Work 2016. It's important that contractors meet
their obligations under the Code, otherwise they risk possible
sanctions from tendering for Commonwealth funded projects.
More...
New South Wales
BPB: Building and Development Certifiers Bill 2018
The Building and Development Certifiers Bill 2018
seeks to strengthen the certification system in NSW. Comments are
invited on the proposed Building and Development Certifiers Bill
2018 by 4 September 2018.
More...
Queensland
QBCC: Contractors urged to follow product
manufacturer's instructions
Technical Standards officers from the QBCC regularly visit
active building sites across Queensland to audit the compliance of
works with the National Construction Code, relevant Australian
Standards and product manufacturer's installation requirements.
Ensuring that sub-contractors engaged were appropriately licensed
to perform the contracted works can be easily done online by conducting a
licensee search (24 August 2018).
More...
QBCC: Licences required for those who install and
service gaseous fire suppression systems
Queensland technicians and companies who install,
decommission, service or maintain gaseous fire suppression systems
or portable extinguishers containing ODS or SGG must ensure they
also hold the necessary licences and permits as required by the
Australian Government. This is in addition to the
QBCC licensing requirements (22 August 2018).
More...
Cases
Europlex Pty Ltd v Unique Living Australia Pty Ltd;
Unique Living Australia Pty Ltd v Europlex Pty Ltd
[2018] NSWSC 1291
BUILDING AND CONSTRUCTION – agreement to develop
property at Terrigal - agreement to share any profit –
whether any profit yet achieved – whether like agreement
exists in relation to further property at East Gosford.
CONTRACTS — formation — consideration – where
parties entered oral agreement to develop property and share profit
– where agreement confirmed by email – where parties
subsequently executed formal building contract – whether
formal contract is binding – whether formal contract is a
sham.
COMMERCE – misleading or deceptive conduct —whether
directors of builder made representations that were misleading or
deceptive – whether representee understood those
representations were made on behalf of company of which representor
a director –whether representations relied on.
Owners of Strata Plan 80458 v TQM Design &
Construct Pty Ltd [2018] NSWSC
1304
BUILDING AND CONSTRUCTION – ss 18B, 18D of the
Home Building Act 1989 (NSW) – statutory warranties
as to quality of home building work – where plasterboarding,
air conditioning and acoustic installation work in apartments is
defective – whether the defendant builder did defective
building work – the defendant suspended building work under
the Building and Construction Industry (Security of Payment)
Act 1999 (NSW) before being excluded from the site and not
being allowed to complete the work – whether the defects are
'temporary disconformities' and therefore not in breach of
the implied warranties contained in s 18B – loss or damage
occasioned by defective building work is to be assessed by
reference to established contractual principles of breach and
causation – whether the plaintiffs' loss was caused by
the defendant's building work.
STATUTORY CONSTRUCTION – s 18D(1) – meaning of the
phrase 'the same rights as the person's predecessor in
title in respect of the statutory warranty' – whether s
18D gives a successor in title no rights where loss was not
suffered by the predecessor in title caused by breaches of s
18B.
DAMAGES – rule against double compensation – the
plaintiffs entered into a Deed of Settlement with the
developer's home building insurer and received payment in
respect of defective work to the apartments – concurrent
claim – claims made against the defendant were made in the
same terms as those against the developer's insurer –
whether plaintiffs have already been compensated for the loss which
they allege was caused by the defendant.
HELD – plaintiffs failed to establish that defective work the
subject of their claim was done by the defendant and the extent of
the defects attributable to the defendant – defective work
was not a temporary disconformity – the developer suffered no
loss because it broke the chain of causation between any defective
work done by the defendant and damage suffered by the developer, by
taking the work out of the hands of the defendant – the right
of the plaintiffs to sue the defendant for breach of the implied
warranties is unaffected by the position between the developer and
the defendant under their building contract. Dismissed.
Home Building Act 1989 (NSW) – Building and
Construction Industry (Security of Payment) Act 1999
(NSW).
Intensia Pty Ltd v Nichols Constructions Pty
Ltd [2018] QCA 191
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES –
CONSTRUCTION AND INTERPRETATION OF CONTRACTS – where the
parties contracted for the sale of the land – where it was
held at first instance that the appellant's termination of the
contract was not justified – where the appellant argued on
appeal that its termination was justified as the respondent had
breached cl 7.4(3)(a)(ii) of the standard REIQ contract in its
warranty that it was not aware of any facts or circumstances that
may lead to the land being classified as contaminated land under
the Environmental Protection Act 1994 (Qld) at the time of contract
– where the respondent had demolished dwellings on the land
before entry into the contract – where, after the date of
contract, the demolition of the buildings caused the contamination
of the land with asbestos – whether the phrasing "may
lead to" should be construed broadly to incorporate mere
possibility – whether the respondent had breached cl
7.4(3)(a)(ii) such as to give the appellant a right to
terminate.
Legislation
Building and Other Legislation (Cladding) Amendment
Regulation 2018 (Qld)
The Regulation is made under the Building Act
1975, and the State Penalties Enforcement Act 1999.
The policy objectives of the Regulation are to determine the extent
of the use of potentially combustible cladding on existing private
buildings in Queensland and raise awareness with building owners of
the risks associated with potentially combustible cladding. The
Regulation commences on 1 October 2018.
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.
