Australia: Construction & Infrastructure - What's News - 14 April 2014

Last Updated: 22 April 2014

In the media

ACIF and government release productivity guides
The Australian Construction Industry Forum (ACIF) and the Australasian Procurement and Construction Council (APCC) have produced two important and valuable guides to help the construction industry improve productivity (10 April 2014). More...

Asbestos compensation fund settles case with 'third wave' victim
The building products company James Hardie could have made asbestos-free products a decade earlier than it did, but chose not to because of commercial reasons. That extraordinary revelation emerged in a landmark case at the Dust Diseases Tribunal in Sydney (10 April 2014). More...

Royal Commission into Trade Union Governance and Corruption begins in Sydney
The Royal Commission into Trade Union Governance and Corruption has begun in Sydney, with the inquiry's recommendations due by the end of December (09 April 2014). More...

Extreme weather prompts ABCB National Construction Code review
Australia's recent extreme weather events have motivated the Australian Building Codes Board (ABCB) to review construction standards for new buildings in regards to weather resilience (07 April 2014). More...

Australia requires practical design action on climate change
Following the release of the United Nation's Intergovernmental Panel on Climate Change fifth Assessment Report, Engineers Australia has called for appropriate design standards that incorporate the climate likely to occur over the life of an asset (02 April 2014). More...

National Lend Lease sites subject to safety audit by CFMEU
The CFMEU is conducting safety audits on all Lend Lease sites around Australia in the wake of the Barangaroo fire where inadequate evacuation plans meant workers were not accounted for, for 2.5 hours (01 April 2014). More...

Victoria

Coalition Government to better protect building consumers
The Victorian Coalition Government announces it will introduce a Domestic Building Consumer Protection Fund to better protect Victorian domestic building consumers (07 April 2014). More...

New South Wales

Sydney tradespeople breeze through watchdog audit
In an audit of 270 people across more than 120 sites, inspectors from Fair Trading uncovered only five breaches of home building and associated legislation. Breaches which were detected included carrying out (or seeking to carry out) residential building work without a license or sub-contracting out work to individuals who did not carry appropriate licenses (11 April 2014). More...

Deregulation to drive up competition
The deregulation of NSW's electricity prices continues electricity reform momentum and continues to apply downward pressure on electricity costs, says Infrastructure Partnerships Australia (07 April 2014). More...

Queensland

Queensland targets building unions with safety overhaul
Building and construction unions have been the target of a Queensland government overhaul of regulation which the government and employers say will crack down on militant union representatives using safety as an excuse to force their way onto worksites but which unions say places workers at risk (11 April 2014). More...

Construction industry to become fairer, more transparent
Under the proposed changes, the QBCC will take on the role of registering adjudicators. Under the new rules, respondents to large or complex claims where the sum involved is more than $750,000 will be given extra time to respond (09 April 2014). More...

Industry supports proposed BCIPA changes
Proposed changes to the Building and Construction Industry Payments Act 2004 (BCIPA) announced today by the Minister for Housing & Public Works, The Hon. Tim Mander MP, will improve the effectiveness of this legislation and provide a much needed boost to cash flow for the building and construction industry (09 April 2014). More...

Published – articles, papers, reports

Climate change 2014: impacts, adaptation and vulnerability
Author: Intergovernmental Panel on Climate Change The Working Group II contribution to the Fifth Assessment Report considers the vulnerability and exposure of human and natural systems, the observed impacts and future risks of climate change and the potential for and limits to adaptation (31 March 2014). More...

A second Sydney airport: Policy developments, reports and key findings
Author: Issues Background Paper No 4 This paper aims to present a timeline of all the key policy positions of Federal and State Governments and Oppositions with respect to a second Sydney airport since the end of 2007(April 2014). More...

Engineering Construction Activity, Australia, Dec 2013 (cat no. 8762.0) Author: Australian Bureau of Statistics (02 April 2014). More...

Practice and courts

MBA: Changes to construction code pose non-compliance risk for industry Master Builders is encouraging all workers in the building and construction industry to attend the first Master Builders' 2014 toolbox event outlining the recent changes to the National Construction Code (11 April 2014). More...

ABCB Discussion paper: Resilience of Buildings to Extreme Weather Events
The Discussion Paper is to inform and seek feedback from stakeholders on the resilience of new buildings to extreme weather events, closing 01 July 2014. The current NCC does not cover hail, storm tide, or have specific requirements relating to heat stress (April 2014). More...

New Australian Standards

Electrical equipment for mines and quarries - General requirements. More...

QLD: Amendments to the Building and Construction Industry Payments Act (BCIPA)
Amendment to the Act will ensure fair and equitable statutory securities for all parties involved in construction contracts likely to come into effect on 1 September 2014. More...

NSW: Certificates: who can apply and required documents
The Environmental Planning and Assessment Regulation 2000 sets out who can apply for a certificate, and what documents are required with applications. Lessons identified from audits has been updated with more advice for certifiers (10 April 2014). More...

NSW: Fair Trading - Deck and balcony safety
Balconies, decks, balustrades and railings must be built to meet the requirements of the Building Code of Australia and relevant Australian Standards.The Building Code requires the structure and materials used to build a balcony or deck withstand the normal stresses that would be placed on it. More...

VIC: New gas installation standard effective from 31 March 2014: AS/NZS 5601.1:2013 A new standard for gas installations took effect in Victoria on 31 March 2014. Gasfitting work in Victoria is now required to comply with the new standard. The new standard comes in two parts, each of which is a standard in its own right. More...

VIC: VBA Mail 1 April 2014
The 1 April 2014 VBA Mail edition is now available online. This covers building, plumbing and gas installation compliance issues.

Cases

Tresedar Pty Ltd v Property Builders (Constructions) Pty Ltd (In Liquidation) [2014] NSWSC 382
BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 (NSW) - whether settlement deed a "construction contract" - whether payment under that deed a "progress payment" - CONTRACT - implied terms - whether an implied term that parties deal with each other in good faith and cooperate - UNCONSCIONABLE CONDUCT - requirements for conduct to be unconscionable PROCEDURE - civil - whether the court should permit party to amend its claim - effect of delay - requirement that responding party have sufficient time to respond The cross defendants in the sum of $688,220.66; The first and second cross defendants in the sum of $40,839.19. More...

Namour v Queensland Building Services Authority [2014] QCA 072
PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – where the appellant was a director of a building company that had its licence cancelled and was unable to complete several building contracts – where the property owners of those contracts made claims against the respondent under the insurance scheme – where the respondent then brought proceedings against the appellant to recover those amounts as a debt pursuant to ss 71(1) and 111C of the Queensland Building Services Authority Act 1991 (Qld) – where summary judgment for that debt was entered – whether the appellant director needed to be at 'fault' to be liable for those debts – whether, if the appellant's licence was wrongfully cancelled, the property owners' claims were not made validly under the insurance scheme and therefore the respondent's payments were not "payment[s] on a claim" under s 71(1) – whether the correctness of the licence cancellation is justiciable in recovery proceedings brought against a director. PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULE OF COURT – SUMMARY JUDGMENT – where the appellant argues the primary judge erred in summarily determining the quantum of debt to be paid – whether the Act requires the amount of the payments made under the insurance scheme be reasonable in order for those amounts to be recoverable against the appellant – whether summary judgment should have been refused because the quantum of the debt was not proved to the necessary degree of assurance – whether r 292 of the Uniform Civil Procedure Rules 1999 was correctly applied. More...

Brimar Electrical Services Pty Ltd v Zi-Argus Australia Pty Ltd [2014] QDC 078 Judgment pursuant to s 19 of the Building Construction and Industry Payments Act 2004 – where the applicant claimed to be entitled to a progress payment for work done – where the respondent contends it is not liable for the amount claimed – where the respondent asserts that it served a payment schedule on the applicant which was in accordance with s 18(2) of the Act – where the applicant asserts that it was not and was thereby entitled to the full amount claimed. More...

J Hutchinson Pty Ltd v Cada Formwork Pty Ltd & Ors [2014] QSC 063
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – ADJUDICATION OF PAYMENT CLAIMS – where the applicant and the first respondent had a contract for the performance by the first respondent of formwork services for a construction project – where the first respondent made an adjudication application under the Building and Construction Industry Payments Act 2004 (Qld) – where an adjudication decision was made by the third respondent in favour of the first respondent – where the third respondent relied on documents that had not been provided to the applicant – where those documents were not submitted to the third respondent as part of the first respondent's adjudication application – whether the third respondent failed to comply with the requirements of natural justice – whether the third respondent contravened s 26(2) of the Act – whether the third respondent was, in the circumstances, required to identify the legal source of the first respondent's entitlement to payment – whether the third respondent was, in the circumstances, required to assess the value of the work performed by the first respondent under the contract with the applicant – whether the adjudication decision is void. ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – HEARING – NATURE OF HEARING – OPPORTUNITY TO PRESENT CASE – where the third respondent decided an adjudication under the Building and Construction Industry Payments Act 2004 (Qld) in favour of the first respondent – where the applicant submitted that the third respondent substantially relied on documents submitted on behalf of the first respondent – where the applicant had not been provided those documents and had not had an opportunity to address the material contained therein – whether there has been a failure to comply with the requirements of natural justice – whether the adjudication decision is void. PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – DECLARATIONS – APPROPRIATE FORM OF RELIEF – DISCRETION OF COURT – OTHER CASES – where an adjudication decision under the Building and Construction Industry Payments Act 2004 (Qld) is void – whether the Court has discretion to grant relief – whether the applicant is, in the circumstances, entitled to restitution of money paid pursuant to the adjudication decision. More...

Verney v The Mac Services Group Pty Ltd [2014] QSC 057
Negligence – Master and Servant – Scope of Duty - Duty of Care – Safe System of work – Employer's duty to provide safe system - Failure to take reasonable care for employee's safety - Burden of Proof – Quantum - Assessment of Damages. More...

Williams v Stone Homes P/L & Anor [2014] QDC 064 Building contracts – enforceability – whether illegal as performed because licence necessary – whether recoverability where contractual breach in issue, rather than remuneration – whether extra-territorial effect for non-licensing offence – whether proportionate liability effectively raised. More...

Love v Thwaites & Anor [2014] VSCA 56
INJUNCTION – Undertaking as to damages – Assessment of damages – Whether damage of a type or character that was reasonably foreseeable – Principles applying to assessment – Mitigation. Judge of the Trial Division granted an interlocutory injunction restraining the Roads Corporation, the respondent,[1] from demolishing or disturbing a property known as Clonard. The judge ordered the appellant to pay the respondent damages assessed in the amount of $3,420,389.70 together with interest in the amount of $2,427,258.47. More...

Metier3 Pty Ltd v Enwerd Pty Ltd & Anor (No 2) [2014] VSC 138
PRACTICE AND PROCEDURE – Supreme Court (General Civil Procedure) Rules 2005 - Rule 45.05 - Application for summary judgment – Court's discretion to make orders pursuant to Rule 45.05(8) - Proceeding commenced by originating motion – No pleadings - Summary judgment sought in circumstances where there are substantial issues in dispute – Full hearing on merits appropriate – Defendants entitled to a defence and counterclaim – Application for summary judgment dismissed - Pleadings ordered. BUILDING CONTRACTS – Entitlement to final payment following issue of certificate of Practical Completion - Validity of certificate of Practical Completion issued under Deed of Settlement - Whether it is open to defendants to challenge validity – Doctrine of election or waiver – Challenge to validity not raised before expiration of 12-month defects period under Deed of Settlement – Obligations under Deed of Settlement – Whether Plaintiff has complied with obligations. More...

Powlett v Archibald & Anor [2014] VCC 405
CLAIM FOR DAMAGES RELATIVE TO ARRANGEMENTS FOR REMOVAL, DELIVERY AND RE-ERECTION OF HOUSES - Claim and contract for breach relative to contracts for relocation of houses – allegations of misleading and deceptive conduct – separate contracts for removal, transportation and restumping of houses – one person contracting for first two contracts – second person contracting in the third contract – whether these persons liable as partners for all obligation – total failure of consideration as to one of the contracts of the third class. More...

Grocon & Ors v Construction, Forestry, Mining and Energy Union & Ors (No 2) [2014] VSC 134
CONTEMPT OF COURT – Breaches of restraining orders – Parties – Contempt proceedings commenced by private companies – Attorney-General joined as co-plaintiff shortly after commencement – Late application by defendant for removal of Attorney-General – Whether Attorney-General a proper or necessary party – Discretionary factors – Application for removal refused – Supreme Court (General Civil Procedure) Rules 2005 r 9.06(a). CONTEMPT OF COURT – Breaches of further restraining orders – Parties – Further contempt proceedings brought by private companies – Application by Attorney-General to be joined as a co-plaintiff – Attorney-General's standing – Discretionary factors – Application for joinder granted – Supreme Court (General Civil Procedure) Rules 2005 r 9.06(b). CONTEMPT OF COURT – Breaches of restraining orders - Blocking access to building sites – Hindering deliveries to building sites – Whether civil contempt or criminal contempt – Industrial context –Relevant sentencing principles – Objective seriousness – Proportionality – Consistency – Totality – General and specific deterrence – Whether convictions should be recorded – Quantum of fines – Orders as to costs. More...

Legislation

New South Wales

Proclamations commencing Acts

Building and Construction Industry Security of Payment Amendment Act 2013 No 93 (2014-182) — published LW 11 April 2014.

Crimes (Administration of Sentences) Amendment Act 2014 No 6

(2014-183) — published LW 11 April 2014. Regulations and other miscellaneous instruments

Building and Construction Industry Security of Payment Amendment (Supporting Statement) Regulation 2014 (2014-185) — published LW 11 April 2014.

Queensland

Subordinate legislation as made

No 41 Queensland Building and Construction Commission Amendment Regulation (No. 1) 2014 - 11 April 2014 – Amends the Queensland Building and Construction Commission Act 1991 - Insertion of new s 33A Part 6— 33A Prescribed government project—Act, sch 1A, s 11 (1) For the Act, schedule 1A, section 11(5), Definition prescribed government project, the construction of the Commonwealth Games village (the relevant project) is prescribed.

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