In the media
Japan ups the ante on infrastructure
Japanese Prime Minister Shinzo Abe announced in May that his
government and the Asian Development Bank (ADB) will jointly
provide US$110 billion for the financing of "innovative"
infrastructure in Asia over the next five years (19 June 2015).
More...
Call for political parties to honour infrastructure
contracts
Australia's leading construction contractors have called on
all political parties to commit to honouring contracts entered into
for the construction of Australia's much needed infrastructure
(18 June 2015).
More...
Renewables helping global emissions-GDP
'decoupling': REN21
Renewable energy targets and other support policies, now in place
in 164 countries, powered the growth of solar, wind and other
renewable technologies to a record-breaking energy generation
capacity last year: about 135 GW of added renewable energy power
increasing total installed capacity to 1,712 GW, up 8.5% from the
year before (18 June 2015).
More...
ACCC is under fire on building products as HIA calls for
Senate inquiry
Shoddy building products, especially those imported from overseas,
have risen to the top of industry concerns with the Housing
Industry Association calling for a Senate Inquiry into
non-conforming products (17 June 2015).
More...
New South Wales the king of non-residential construction
activity
Australian Construction Insights (ACI) has today released the
inaugural edition of the ACI Construction Monitor and places NSW at
the top of the pedestal. "Residential building activity has
set records recently, particularly for construction of higher
density housing in the east coast population centres". (17
June 2015). More...
Construction insolvency hearing starts in
Canberra
Better enforcement and tougher rules are needed to stop dodgy
developers who rip off construction contractors, unions say. A
parliamentary inquiry into insolvency in the construction industry
is due to begin in Canberra on Friday (12 June 2015).
More...
Australian median house price exceeds
$650,000
The Real Estate Institute of Australia (REIA) says that
Australia's housing market continued its growth in the first
quarter of 2015, according to the latest Bendigo Bank/REIA Real
Estate Market Facts publication (12 June 2015).
More...
Housing Affordability Remains a Major Issue for
Australian Households
The current public discussion taking place around housing
affordability highlights a huge and growing problem for thousands
of Australian households, according to the UDIA (10 June 2015).
More...
G7 meeting: World leaders pledge to act on climate
change, phase out fossil fuels by end of century
The G7 group of industrial nations have pledged to phase out the
world's use of fossil fuels by the end of the 21st century (09
June 2015).
More...
Victoria
East West Link Deal Finalised
The Andrews Labor Government has reached binding final agreements
with the East West Connect consortium (EWC), formalising the in
principle deal that was agreed in April (15 June 2015). More...
Abbott's Ignorance on Renewable Energy Will Cost
Victoria Jobs
The clean energy industry in Victoria supports more than 4000
jobs, and many companies that currently supply the automotive
industry are looking at renewable energy projects as a lifeline for
their business (11 June 2015).
More...
Infrastructure Contributions Overhauled
The Andrews Labor Government has delivered a simpler, fairer
development contributions system to provide for infrastructure,
particularly in the state's rapidly-expanding growth areas with
new legislation introduced into Parliament (11 June 2015).
More...
Security of Payment for contractors
Everybody involved in a building project should get paid for the
work they do. Unfortunately, disputes sometimes arise over payment.
The Building and Construction Industry Security of Payment Act
2002 (SOP Act) helps ensure that anyone who carries out
construction work or supplies related goods and services under a
construction contract gets paid (09 June 2015).
More...
New South Wales
Reaching Common Ground
The Division of Resources and Energy today released Common Ground,
a web application that easily allows communities to search all
coal, mineral and gas exploration or production titles in their
region (17 June 2015). More...
Tenders open for Narellan Road upgrade
Tenders are now open for Stage Two of the $114 million upgrade of
Narellan Road in Western Sydney. The upgrade plays a key role in
the Australian and New South Wales governments plans to transform
this vital part of Sydney (16 June 2015).
More...
First Western Sydney Infrastructure Plan report card
released
The Australian and NSW governments today released the first
Western Sydney Infrastructure Plan report card, providing a
comprehensive overview on the first three months of major work
undertaken as part of the $3.6 billion package (10 June 2015).
More...
MOU between NSW and SA to attract mineral
investment
The New South Wales and South Australia state governments are
working together to attract investors for minerals and energy
exploration and development. The two states share geological
provinces such as the Murray Basin (mineral sands), the Curnamona
Province (lead, zinc silver, uranium) and the Delamerian Orogen
(iron) (09 June 2015).
More...
Queensland
Gold Coast channel dredging to be
reviewed
Queensland Ports Minister Mark Bailey has requested an independent
review into plans to dredge a Gold Coast channel. Mr Bailey has
held talks with the Gold Coast Waterways Authority and the
Australian Live-aboard Association on plans to dredge the Labrador
Channel and change mooring arrangements for boat residents (17 June
2015).
More...
QLD councils win local disaster relief
battle
Queensland's councils and its state government have finally
won their important and protracted battle to be allowed to use
local labour on federally funded disaster relief and clean-up
programmes instead of hiring-in more expensive external contractors
(16 June 2015).
More...
Stricter penalties for building offences
Tougher penalties will apply from 1 July for contractors who
commit building offences. The QBCC says the increased penalties
will help to boost compliance with building standards and provide
more options for removing recalcitrant licensees (12 June 2015).
More...
Simpler, more flexible building contracts benefit
all
From 1 July 2015, contracts for residential building work will be
more flexible and easier to use. The new contracts, developed by
the Queensland Building and Construction Commission (QBCC), will
benefit home and property owners as well as industry members (09
June 2015).
More...
Gladstone port master plan sets the
standard
Public consultation begins this week on an initiative that will
drive economic development in and around Gladstone's port and
protect the Great Barrier Reef (08 June 2015).
More...
Published – articles, papers, reports
Pathway to Productive and Sustainable Infrastructure
Workshop Report June 2015
Australian Sustainable Built Environment Council. The approach to
infrastructure planning outlined in this report responds to many of
these challenges and opportunities and advocates for a 30 Year
Infrastructure Plan; Collaborative Stakeholder Engagement and Five
Pathways (Released 17 June 2015).
More...
Australian Infrastructure Metric December Quarter
2014
The average work won index for the first six months of FY2014/15
was down significantly on FY2013/14 (see Figure 1), suggesting that
public investment – while strengthening – has yet to
lift to levels sufficient to offset the retreat in mining (19 June
2015).
More...
Security of Payment Adjudication Activity Statistics
Report for 2013-2014
Victorian Building Authority. The report provides summarised
adjudication data for the 2013-2014 Financial Year. The information
in this report is based on data provided to the VBA by ANAs (09
June 2015).
More...
Practice and courts
CER: Westech Solar and Solimpeks brand products
certification to AS/NZS 2712 cancelled
The Clean Energy Regulator has been informed that the
certification to AS/NZS 2712:2007 for Westech Solar and Solimpeks
brand solar water heater products has been cancelled by the
relevant accrediting body as of 11 May 2015 (15 June 2015).
More...
Cases
Construction, Forestry, Mining and Energy Union v
Boral Resources (Vic) Pty Ltd [2015] HCA 21
Appeal dismissed with costs. Practice and procedure –
Contempt of court – Discovery – Where proceeding
brought under r 75.06(2) of Supreme Court (General Civil
Procedure) Rules 2005 (Vic) ("Rules") to punish
appellant for contempt of court – Where appellant is a
corporation – Whether a corporation may be ordered to make
discovery under r 29.07(2) of Rules in a contempt proceeding
– Whether a contempt proceeding is a criminal proceeding or a
civil proceeding. Words and phrases – "accusatorial
proceeding", "civil proceeding", "companion
principle", "criminal proceeding". More...
Shaw Building Group Pty Ltd v Narayan (No 2)
[2015] FCA 585
RESTITUTION – discussion of principles for quantifying the
applicant's claim for money had and received against the person
who stole those moneys in circumstances where both the thief and
his accomplices made repayments over time to the applicant –
whether the applicant is entitled to the total amount stolen less
amounts repaid by the thief or that amount less also the quantum of
the repayments made by the thief's accomplices Civil Law
(Wrongs) Act 2002 (ACT), Ch 7A, s 107B; Corporations Act
2001 (Cth). More...
Watpac Construction NSW Pty Limited v Taylor
Thompson Whitting (NSW) Pty Ltd [2015] NSWSC
780
CONTRACT – Specific performance of dispute resolution clause
– Where parties agreed to refer dispute to independent expert
determination – Where one party refused to execute Expert
Determination Agreement – Proper construction of primary
agreement and Expert Determination Agreement.
More...
Roads and Maritime Services v Allandale Blue Metal
Pty Ltd [2015] NSWCA 167
APPLICATION FOR STAY – whether risk respondent will be
unable to repay monies without difficulty or delay – whether
risk respondent will dissipate assets – balance of
convenience – interests of justice - Quarry Products
(Newcastle) Pty Ltd (QPN) which operates a quarrying business on
the land, accepted the sum of $807,758 for disturbance pursuant to
s 55(d) of the Act, based on loss of profits due to reduced access
to the site and the resource.
More...
Monadelphous Engineering Pty Ltd & Anor v
Wiggins Island Coal Export Terminal Pty Ltd [2015] QSC
160
CONTRACTS – BUILDING ENGINEERING AND RELATED CONTRACTS
– THE CONTRACT – CONSTRUCTION OF PARTICULAR CONTRACTS
AND IMPLIED CONDITIONS – SECURITY AND RETENTION FUNDS –
where the defendant contracted the plaintiffs' firm to perform
construction work under several contracts in relation to the
construction of a coal export terminal – dispute over whether
the defendant was entitled to call upon four bank guarantees
provided by the plaintiff as security for its performance,
amounting to 10 per cent of the contract price – where the
defendant called upon the guarantees, claiming it was entitlement
damages for the plaintiffs' delay in performance – where
the contract entitled the defendant to have recourse to the
securities where the defendant had a bona fide claim against the
plaintiff – where the plaintiffs claimed that the terms of
the contract were qualified by s 67K of the Queensland Building
and Construction Commission Act 1991 (Qld) which limited the
retention amounts and securities for a builder's performance to
5 per cent of the contract price and s 67J, which provided a
contracting party may only use a security to obtain an amount owed
where it has given written notice to the contracted party –
whether the contract was a "building contract" within the
meaning of s 67J and 67K – a building contract is a contract
for carrying out building work – whether items of work fell
within excluded items in s 5 and Sch 1AA of the Regulation –
where the plaintiff failed to establish that work in respect of
items pleaded was for "building work" – contract
was not a "building contract" for the purpose of the Act.
STATUTES – ACTS OF PARLIAMENT – INTERPRETATION –
PARTICULAR WORDS AND PHRASES – whether the contract between
the defendant and plaintiffs was a "building contract"
within the meaning of s 67J and 67K of the Queensland Building
and Construction Commission Act 1991 (Qld) or its predecessor
– onus on the plaintiff to prove the contract was a building
contract – a building contract is a contract for carrying out
building work – whether items of work fell within excluded
items in s 5 and Sch 1AA of the Regulation – the approach to
characterisation of relevant works with a "broad and practical
interpretation" of the items within the Regulation without it
being necessary that the work be precisely described by the item
– contract was not a "building contract" for the
purpose of the Act. More...
Saipem Australia Pty Ltd v GLNG Operations Pty Ltd
(No 2)[2015] QSC 173
CONTRACTS – BUILDING ENGINEERING AND RELATED CONTRACTS
– THE CONTRACT – CONSTRUCTION OF PARTICULAR CONTRACTS
AND IMPLIED CONDITIONS – SECURITY AND RETENTION FUNDS –
where the applicant claimed the respondent was not entitled under s
67J of the Queensland Building and Construction Commission Act
1991 (Qld) to use a security in the form of two bank
guarantees to obtain an amount owed to it, because no amount was
actually due to the respondent – applicant argued that the
contract entitled the respondent to have recourse to bank
guarantees only to "recover any debt due" and that
whether the liquidated damages claimed constituted debts due was to
be determined by an arbitrator. EQUITY – EQUITABLE REMEDIES
– INJUNCTIONS – RELEVANT CONSIDERATIONS – BALANCE
OF CONVENIENCE GENERALLY – where the applicant sought
interlocutory injunction restraining the respondent from demanding
payment under two bank guarantees – uncontradicted evidence
the applicant would suffer reputational damage if the respondent
made demands upon guarantees – respondent argued that the
applicant could avoid that risk by paying the amounts claimed
– where a contractual clause provided the applicant would not
restrain the respondent from making a demand under a performance
guarantee even when it disputed the respondent's right to
payment – where this could be said to act as a "risk
allocation device" to allocate risk as to who should be out of
pocket pending resolution of a dispute – when a performance
guarantee acts as a risk allocation device this often has a
decisive impact upon the balance of convenience if the court is
asked to restrain by interlocutory injunction the use of the
guarantee – whether non-compliance with s 67J of the
Queensland Building and Construction Commission Act 1991
(Qld) should tilt the balance in favour of an injunction - where
the respondent would be prejudiced by the grant of an injunction
because it would not have the money to which it allegedly was
entitled –respondent restrained from calling on the bank
guarantees. EQUITY – EQUITABLE REMEDIES – INJUNCTIONS
– INTERLOCUTORY INJUNCTIONS – INJUNCTIONS TO PRESERVE
STATUS QUO OR PROPERTY PENDING DETERMINATION OF RIGHTS –
OTHER CASES – respondent argued the applicant had no case for
final determination which could found an interlocutory application
because the disputes about extensions of time and certain
completion dates in the Originating Application must be determined
by an arbitration – the applicant claimed final relief in the
form of declarations that the liquidated damages were not amounts
owed or debts due to the respondent and that notices given under s
67J of the Queensland Building and Construction Commission
Act were invalid – the applicant had legal rights from
the contract and from s 67J requiring the protection of an
interlocutory injunction – where the respondent was
restrained from calling on the bank guarantees. STATUTES –
ACTS OF PARLIAMENT – INTERPRETATION – PARTICULAR WORDS
AND PHRASES – whether it was a purpose of the Queensland
Building and Construction Commission Act 1991 (Qld) that a
notice given in breach of s 67J(2) should be invalid – the
better view seems to be that noncompliance would have the
consequence of invalidating the notice – whether the
respondent gave notice to the applicant within 28 after it became
aware of its right to obtain the amount owed – where the
contract provided that the obligation to pay liquidated damages
arose only when a certificate of completion was issued by the
respondent company's representative – notice under s 67J
must state the amount owed – the 28 day period to give notice
under s 67J did not commence from the date of awareness that
something was owed but from the date the respondent certified the
date for completion and became aware of the period of delay. More...
Gambaro Pty Ltd v Rohrig (Qld) Pty Ltd [2015]
QSC 170
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND
– PROCEDURE UNDER THE UNIFORM CIVIL PROCEDURE RULES AND
PREDECESSORS – SUMMARY JUDGMENT – PLEADING –
STATEMENT OF CLAIM JUDGMENT – where the plaintiff and
defendant entered into a construction contract – where the
defendant made a number of claims for progress payments under the
contract prior to practical completion – where the defendant
issued a payment claim under the Building and Construction
Industry Payments Act 2004 (Qld) ('BCIPA') after
practical completion had been reached, seeking further payment for
all works completed to that point – where that payment claim
was adjudicated under BCIPA – where the plaintiff paid the
adjudicated amount – where the plaintiff then commenced
proceedings seeking restitution of the amount owed – where
the defendant argued that the plaintiff's claim had been
brought pre-emptively, while the statutory regime had yet to
complete running its course, contrary to the intention of BCIPA s
99 – whether the plaintiff's claim and statement of claim
should therefore be struck out in full – alternatively,
whether certain paragraphs of the plaintiff's statement of
claim should be struck out under Uniform Civil Procedure Rules 1999
(Qld) r 171. PROCEDURE – SUPREME COURT PROCEDURE –
QUEENSLAND – PROCEDURE UNDER THE UNIFORM CIVIL PROCEDURE
RULES AND PREDECESSORS – SUMMARY JUDGMENT – where the
plaintiff and defendant entered into a construction contract
– where the defendant had made a number of claims for
progress payments under the contract prior to practical completion
– where the defendant issued a payment claim under the
Building and Construction Industry Payments Act 2004 (Qld)
('BCIPA') after practical completion had been reached,
seeking further payment for all works completed to that point
– where that payment claim was adjudicated under BCIPA
– where the plaintiff paid the adjudicated amount –
where the plaintiff then commenced proceedings seeking restitution
of the amount owed – whether, on failure of the
defendant's strike-out application, summary judgment should be
granted. CONTRACTS – BUILDING, ENGINEERING AND RELATED
CONTRACTS – REMUNERATION – STATUTORY REGULATION OF
ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS –
ADJUDICATION OF PAYMENT CLAIMS – where the plaintiff and
defendant entered into a construction contract – where the
defendant had made a number of claims for progress payments under
the contract prior to practical completion – where the
defendant issued a payment claim under the Building and
Construction Industry Payments Act 2004 (Qld)
('BCIPA') after practical completion had been reached,
seeking further payment for all works completed to that point
– where that payment claim was adjudicated under BCIPA
– where the plaintiff paid the adjudicated amount –
where the plaintiff then commenced proceedings seeking restitution
of the amount owed – whether the effect of BCIPA s 99 is to
oust the supervisory jurisdiction of the Supreme Court and prevent
the enforcement of a party's contractual rights during the
operation of the statutory progress payment regime. More...
Samimi & Anor v Queensland Building and
Construction Commission [2015] QCA 106
PROCEDURE – INFERIOR COURTS – QUEENSLAND –
DISTRICT COURT – CIVIL JURISDICTION – APPEAL AND NEW
TRIAL – APPEAL TO SUPREME COURT – where the trial judge
gave summary judgment against the appellants in favour of the
respondent – where there were two requirements for summary
judgment: first, that there was no real prospect of success in any
defence of the claim, and second, that there was no need for a
trial – where the appellant submitted that a factual dispute
which was relevant to the respondent's prospects of success in
relation to the claim – where the factual dispute was not
sufficiently explained such as to allow the primary judge to
conclude there was no need for a trial – whether the primary
judge erred in giving summary judgment. INSURANCE – where
there was a statutory insurance scheme – where the respondent
paid a building owner $400,000 pursuant to the statutory insurance
scheme due to the defective work of a builder – where the
appellants were the directors of the builder, which was a
corporation – where the respondent sought to recover that
payment from the appellants – whether the payment made was
"on a claim under the insurance scheme". More...
PT Thiess Contractors Indonesia v PT Arutmin
Indonesia [2015] QSC 123
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES –
CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION
OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – where the
parties entered into a deed of settlement and termination –
where the defendant was required to make payments to the plaintiff
under the deed – where the payment mechanisms of the deed
provided for payments by a bank pursuant to a cash distribution
agreement between the defendant and the bank – where payments
were not made in accordance with the deed – whether the
defendant is liable to make the payments. CONTRACTS – GENERAL
CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF
CONTRACTS – PENALTIES AND LIQUIDATED DAMAGES – GENERAL
PRINCIPLES – where the parties entered into a deed of
settlement and termination – where the deed provides for
payment of interest on amounts not paid at a rate of 10.4 per cent
per annum – where, after a further period of non-payment, the
interest rate increases to 18 per cent per annum thereafter –
whether the increase in interest rate from 10.4 per cent to 18 per
cent is a penalty. More...
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.
