News
MBA: The carbon tax and your building
business
The Australian Government's carbon tax will start on 1 July
2012 and will have far-reaching implications for businesses,
consumers and the Australian economy, according to Master Builders,
including the building industry and for anyone responsible for
building contracts (19 April 2012)
More...
ABCC's first sham contracting prosecution filed in
Queensland
The ABCC will allege that Supernova Contractors Pty Ltd and its
Director, Steven Paul Long, contravened s357 of the Fair Work Act
2009 (FW Act) by misrepresenting three employees as independent
contractors (17 April 2012)
More...
Regional building approvals show positive growth:
February 2012
Building Approvals regional figures, released recently the
Australian Bureau of Statistics, show positive growth across all
regional centres, according to Master Builders, Queensland. The
Director of Housing Policy, said that for the first time since the
onset of the GFC all regional areas recorded positive growth for
total new residential approvals (17 April 2012)
More...
Oil giants fight laws on offshore energy
projects
The federal government faces a backlash against plans for stronger
"use it or lose it" laws on offshore oil and gas
projects. The government's draft energy white paper aims to
reform the much-criticised system that allows petroleum giants to
hold and then roll over their offshore reserves in five-year blocks
without developing them (17 April 2012)
More...
ACCC turns attention to building products
sector
The building materials industry is set to come under greater
scrutiny from the Australian Competition & Consumer Commission
(ACCC) as major manufacturers flag the likelihood of having to buy
from competitors to cover product shortfalls (12 April 2012)
More...
Australia and China MOU on Enhancing Cooperation in
Infrastructure Construction
The Australian and Chinese governments have signed a Memorandum of
Understanding to strengthen cooperation on delivering
infrastructure for both nations. The MOU will mean closer
co-operation on planning of projects, exchanging information on
investment opportunities and technical expertise, training and
education, joint conferences, as well as joint infrastructure
projects in the future (10 April 2012)
More...
Lethal, toxic truth buried in a ditch
Fire and Rescue NSW hazardous materials investigators have joined
union officials and other authorities at the site where toxic
pesticide and possible remnants of radioactive waste were unearthed
during roadworks. An environmental impact statement for the upgrade
of the Pacific Highway stated there had been some uncertainty about
where the waste was buried (19 April 2012)
More...
Social Impact Management Plan - Gladstone region to reap
the benefits of LNG
Deputy Premier and Minister for State Development, Infrastructure
and Planning has announced Queensland's first Social Impact
Management Plan, which has been approved for the Queensland Curtis
Liquefied Natural Gas (QCLNG) facility. The QCLNG Social Impact
Management Plan is the first of the three such plans under
consideration for the industry (12 April 2012)
More...
Vic premier says six-star rating will
stay
Victorian Premier Ted Baillieu says the government has no plans to
dump six-star energy rules for new homes. The six-star energy
efficiency standard has been a state regulation for all new homes
since May last year (16 April 2012)
More...
Developer awarded $2.2m damages in shonky building
dispute
A Property developer has won more than $2 million in damages for
shoddy construction work after a long battle during which
Victoria's building regulator did not investigate the builder.
The VCAT ruling came two years after the Victorian Building
Commission was notified about sub-standard work on the $4 million
development (18 April 2012)
More...
Minerals Council of Australia: Sound science not
politics should determine land-use
The Minerals Council of Australia, Victorian Division is
profoundly disappointed by the Victorian Opposition's call for
a moratorium on coal seam gas exploration, stating land use
approvals should be based on sound science, and this is
particularly the case with coal seam gas where community sentiment
is often underpinned by groups generally opposed to industrial
development (12 April 2012)
More...
Articles
Pouring fuel on the fire: the nature and extent of
Federal Government subsidies to the mining industry
Source: Matt Grudnoff; The Australia Institute
The federal government gives just over $4 billion in direct
subsidies to mining companies each year, mainly in the form of
cheap fuel and tax breaks for building roads and railways, this
policy brief reveals (18 April 2012)
More...
ABS Building Activity, Australia, December
2011
Source: Australian Bureau of Statistics
The trend estimate of the value of total building work done fell
1.7% in the December 2011 quarter. The seasonally adjusted estimate
of the value of total building work done fell 4.9% to $18,742.1m,
in the December quarter, following a rise of 1.2% in the September
2011 quarter The seasonally adjusted estimate of the value of new
residential building work done fell 1.7% to $9,307.5m; the
seasonally adjusted estimate of the value of non-residential
building work done in the quarter fell 9.1%, following a 6.2% rise
in the September 2011 quarter (18 April 2012)
More...
High Court determines the standard of reasons of an
expert
Source: Hon Barry O'Keefe, Australian Building Law Journal,
2012, April, pp87
Making expert determinations final and binding in the courts
Performance anxiety: intention and ability to rectify
and the reward of rectification damages
Source: Simon G Frauenfelder, Australian Building Law Journal,
2012, April, pp90
Australian contract law should require builders to pay
rectification damages irrespective of the plaintiff's intention
or ability to rectify
Practice Notes
Master Builders Australia: carbon tax and your building
business
Master Builders has developed some 'dos and don'ts'
for building contractors when dealing with the carbon tax in the
lead up to its introduction on 1 July 2012. Master Builders has
developed information for builders and trade contractors when
considering the impact of the carbon tax on contracts. Master
Builders (19 April 2012)
More...
NSW: Building Certification Forms
The Board has developed certification forms to be used as
templates when carrying out certification work, or to review the
forms already used by certifiers in their certification processes.
The certification forms reflect statutory requirements and also
include additional matters as advised by the Board's Technical
Reference Group (for example, where notices are received by
council) (April 2012)
More...
QLD: Arrow Energy EIS – Public
Consultation
The public is invited to have its say on the environmental impact
statement (EIS) for the proposed multi-billion dollar Arrow
liquefied natural gas (LNG) planti on Curtis Island, in the Port of
Gladstone.
The EIS will be available for public comment for six weeks from
Monday 16 April 2012.
A copy of the EIS can be downloaded from www.arrowenergy.com (12
April 2012)
More...
VIC: six-star energy rating regulations for new
homes
Premier Ted Baillieu confirms the six star standard that has been
a regulation in Victoria since may 2011, will remain in force (18
April 2012)
More...
Cases
Monaghan Surveyors Pty Ltd v Stratford Glen-Avon Pty Ltd
[2012] NSWCA 94
DAMAGES - contract - negligent breach of contract - failure to
exercise due care and skill - whether Civil Liability Act 2002
(NSW), Pt 1A applies - whether analysis under Civil Liability Act
2002 (NSW), s 5D incorporates policy questions - whether loss was
reasonably within the contemplation of the parties as the probable
result of the contract
DAMAGES - tort - negligence - failure to exercise due care and
skill - whether Civil Liability Act 2002 (NSW), Pt 1A applies -
whether analysis under Civil Liability Act, s 5D incorporates
policy questions - whether loss was reasonably foreseeable -
whether differing outcomes in tort and contract justified
DAMAGES - misleading and deceptive conduct - whether Civil
Liability Act 2002 (NSW), Pt 1A applies to claim under Fair Trading
Act 1987 (NSW), s 42 - whether elements of cause of action for
misleading and deceptive conduct include negligence - whether
position differs under Trade Practices Act 1974 (Cth), s 52 -
whether losses resulting from representations that involved same
consequences as simultaneous claims in tort and contract are
recoverable More...
Bushby v Dixon Holmes du Pont Pty Ltd & Anor [2012]
NSWCA 90
The application for leave to appeal is dismissed.
APPEAL - civil - where matter in issue amounting to $100,000 or
less - appeal from District Court judgment for $59,562 in dispute
over early termination of licence - no reasonable prospects of
success in overturning finding of primary judge - arguable
alternative case on appeal - would require retrial - expense of
retrial and continuing litigation not commensurate with amount in
dispute - application for leave to appeal dismissed More...
The Owners Corporation of Strata Plan 61390 v Multiplex
Corporate Agency Pty Limited and Ors (No 2) [2012] NSWSC
322
CIVIL PROCEDURE - separate question - obligation to take
interventionist role - effect of Civil Procedure Act 2005 -
overriding purpose intersects with usual warnings about dangers of
separate questions CONTRACT - deed of release - Grant v John Grant
& Sons (1954) 91 CLR 112 - construction - general words of
release confined to subject matter of dispute - limited by recitals
and other admissible evidence EQUITY - deed of release - Grant v
John Grant & Sons (1954) 91 CLR 112 - equitable principle -
unconscientious reliance on legal rights - general words of release
confined to true purpose of transaction EVIDENCE - deed of release
- Grant v John Grant & Sons (1954) 91 CLR 112 - equity permits
consideration of state of knowledge of parties concerning
existence, character and extent of liability in question
[including] actual intention of releasor
BUILDING AND CONSTRUCTION - notorious likelihood of future claims
- plaintiff advised by specialist construction litigation
solicitors - probative value of evidence of lack of awareness of
claims - desirability of evidence from plaintiff's solicitor More...
New South Wales Land and Housing v Clarendon Homes
[2012] NSWSC 333
BUILDING AND CONSTRUCTION - Building and Construction Industry
Security of Payment Act 1999 (NSW) - adjudication determination -
whether adjudicator's performed statutory function by giving
sufficient reasons for the decision that was made - ADMINISTRATIVE
LAW - jurisdictional error - denial of natural justice - whether
adjudicator gave sufficient reasons for accepting
superintendent's representative's assessment - whether
adjudicator properly dealt with submissions based on the quantum of
the claim - whether adjudicator erred by failing to note a
concession - whether oversight capable of correction under
"slip rule" - whether adjudicator failed to afford
natural justice by omitting reference to materials provided to him
in relation to submissions and documentation in support of a
payment schedule. More...
Canterbury City Council v Mihalopoulos (No 3) [2012]
NSWLEC 72
SENTENCE - sentencing following plea of guilty to two charges of
contempt for failure to comply with court orders to remove unlawful
building work - wilful contempt - contempt not purged - sale of
property subject of contempt charges - mitigating factors of
financial incapacity, early plea of guilty - periodic fine imposed
More...
Bach and Anor v Majestic Pools & Landscape Pty Ltd
[2012] QCAT 132
Building dispute – domestic pool – breach of warranty
– provisional sum – role of certifier –
demolition – rectification More...
Lida Build Pty Ltd v Miller and Anor [2012] QCAT
137
Contract – Domestic Building Contract – Remuneration
– Whether a home owner may lose the right to liquidated
damages when they have contributed to or caused the
contractor's delay
Contract – Domestic Building Contract – damages
– whether assessed according to rectification measure rather
that diminution in value
Peak Constructions (Liverpool) v McKenney Foundations Limited
(1970) 69 LGR 1 followed SMK Cabinets v Hili Modern Electrics Pty
Ltd [1984] VR 391 followed Tabcorp Holdings Ltd v Bowen Investments
Pty Ltd (2009) 236 CLR 272 at 286 followed Willshee v Westcourt Ltd
[2009] WASCA 87 followed More...
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.