Australia: Residential Focus - 10 February 2016

Last Updated: 15 February 2016
Article by Christine Jones
Most Read Contributor in Australia, September 2017

In the media

NSW Housing Reform to Create "Building Bonanza"
NSW Public Housing Minister Brad Hazzard says reforms to the sector will bring about a $22 billion "building bonanza" and redress long-term estate neglect (25 January 2016). More...


Yong v Antworks Pty Ltd [2016] NSWCATAP 14
APPEAL – Civil and Administrative Tribunal (NSW) – home building claims – dispute about contract – claim for defects – claim for payment and for variations alleged not to be in writing – construction of Home Building Act and Regulation – whether Tribunal failed to exercise its statutory function – failure to make findings on material issues in dispute – whether reasons adequate – principles to be applied – no denial of procedural fairness where expert relied on letter attached to report – question of weight – whether expert independent – decisions set aside and proceedings remitted for reconsideration

PRACTICE AND PROCEDURE – whether the proceedings should be remitted to differently constituted Tribunal – principles to be applied COSTS – where costs decision based on substantive decision which has been set aside – decision set aside and remitted for reconsideration. More...

Hamdan v Commissioner for Fair Trading [2016] NSWCATOD 6
HOME BUILDING – Licence cancelled on ground that it was issued because of a misrepresentation or that it was issued in error - Application for restoration of cancelled licence – Applicable provisions for determining application – Whether necessary for Tribunal to be satisfied that error rectified before it may restore licence – Whether errors in application rectified. More...

Templeman v O'Sullivan [2016] NSWCATAP 18
Leave to appeal out of time Leave to rely on expert evidence obtained after hearing concluded ; Home Building Act More...

Younan v Commissioner for Fair Trading [2016] NSWCATOD 12
HOME BUILDING – Disciplinary action – Whether applicant guilty of improper conduct – Whether company of which applicant was a director failed, without reasonable cause, to comply with the requirements of two rectification orders

STATUTORY CONSTRUCTION –Amendment to s 48F which provides for when a rectification order ceases to have effect - Savings and transitional provisions – Whether a rectification order, made before 2015, ceases to have effect after the 2015 amendments to the Home Building Act, where the matter giving rise to the order became the subject of a building claim after the date for compliance with the order – Whether the Commissioner may take disciplinary action in respect of non-compliance with such an order – Finding that rectification order ceases to have effect and Commissioner may not take disciplinary action in respect of failure to comply with it

STATUTORY CONSTRUCTION – Whether an order purporting to require a contractor to remedy a defect which does not specify the steps the contractor must take is a "rectification order" – Whether the Commissioner may take disciplinary action in respect of a failure to comply with such an order – Finding that such an order is not a "rectification order" and that non-compliance with such an order is not a ground for the taking of disciplinary action. More...

Pintur v Commissioner for Fair Trading [2016] NSWCATOD 11
ADMINISTRATIVE Law – Home Building Act - Nature of engagement – Lawful engagement – Relevant experience – Wide range – Residential Building Work More...

Despot v Registrar General of New South Wales [2016] NSWCA 5
ESTOPPEL – Res judicata or cause of action estoppel – where order for specific performance made – condition as to payment of part purchase price not fulfilled – order not complied with – purchaser and incoming mortgagee obtain registration – on earlier appeal, vendor sought to maintain order for specific performance but vary condition as to payment on basis that amount of unpaid purchase price exceeded that found by trial judge – argument not able to be made on earlier appeal because inconsistent with basis upon which trial judge found purchaser ready, willing and able to perform – vendor obtained judgment on appeal for the outstanding purchase price and interest – vendor subsequently terminated the contract and applied to set aside order for specific performance – inconsistent remedies of enforcing order for specific performance by obtaining (and later recovering) judgment for outstanding purchase price and setting aside order for specific performance -– merger of rights and obligations under contract in money judgment obtained on earlier appeal – where relief sought before primary judge is inconsistent with judgment of the court on the earlier appeal which stands unreversed.

CONTRACT – where order for specific performance made ––vendor fulfils all obligations under contract – condition as to payment of part purchase price not fulfilled – vendor seeks to enforce order and obtains judgment for payment of outstanding purchase price and interest – where vendor subsequently terminates contract – application by vendor to set aside order for specific performance – whether election between inconsistent remedies – where order for specific performance not complied with – merger of rights and obligations under contract in money judgment. More...

Glover v Buckton Building Pty Ltd [2015] NSWCATCD 146

Spicer v Owners Corporation SP 64558 [2016] NSWCATAP 11
Strata Scheme Management Act- power to award costs following withdrawal of application, form of order to effect withdrawal. Meaning of "misconceived", requirements for making an order dismissing proceedings that are misconceived.
Consumer Trader and Tenancy Tribunal Act- power to make orders under s 28

Gennacker Pty Ltd v Bennett [2016] NSWCATAP 10
Holiday Parks Act- Occupation agreements, manner in which agreement may be varied
Variation of agreements- inferred contract
Residential Parks Act- residential tenancy agreement, jurisdiction to determine rent dispute, requirements of notice to increase rent
Adequacy of reasons

Thompson v Chapman [2016] NSWCATAP 6
Costs- Power to award costs in building claims under the Consumer Trader and Tenancy Tribunal Act and the Civil and Administrative Tribunal Act, general discretion, entitlement to costs where "indulgence" sought by successful applicant, relevance of s94(1A) application to exercise of discretion. More...

Cominos v Di Rico [2016] NSWCATAP 5
APPEAL – Civil and Administrative Tribunal – home building – whether denial of procedural fairness –self-represented litigant – nature of proceedings explained by the Tribunal – conduct of hearing not unfair – new evidence submitted after hearing concluded – considered but given little weight – no denial of procedural fairness – leave to appeal refused – appeal dismissed. More...

Allcastle Homes Pty Ltd v Wilkinson [2016] NSWCATAP 3
APPEAL – home building – jurisdiction to hear claim under the Home Building Act – meaning of "building claim" – whether claim under a tender agreement was a building claim –building contract not subsequently entered into – no physical construction but preparatory work – whether "for or in connection with the carrying out of residential building work" – Tribunal found jurisdiction on the basis of sufficient causal nexus – no error of law – appeal dismissed. More...

So v CSR Building Products Ltd [2015] NSWCATAP 285
Consent orders – Appeal costs – Section 60. More...

Integrity Homes Pty Ltd v Staniland [2015] NSWCATAP 284
Appeal against interlocutory decisions – application for leave to appeal out of time – appeal grounds without merit – Costs. More...

Whitley v Director General, NSW Fair Trading [2015] NSWCATOD 155
FIT and proper person – contractor licence - alleged improper conduct – whether allegations made out on evidence – nature of allegations – circumstances of allegations- fit and proper in absence of breach. More...

Li v MACD Developments Pty Ltd [2015] NSWCATAP 287
Leave to appeal – decision against the weight of evidence
Liability of builder for defective design of homeowner's architect
Construction of specification for work. More...

The Owners – Strata Plan 70030 v Decon Australia [2016] NSWSC 19
PRACTICE AND PROCEDURE – Claim for defective work – Notice of Motion application to rely on Amended List Statement – Whether leave should be granted to plaintiff rely on Amended List Statement and further allegations of defective work – Whether leave should be granted to rely upon further export reports – Balance of justice weighted in favour of plaintiff – Leave granted. More...

Gleeson & Anor t/as ANT Building v The Owners – Strata Plan 81893 [2016] NSWCATAP 27
Error of law - failure to provide adequate reasons
Fresh evidence - evidence not reasonably available
Owners Corporation - standing to bring application under the Home Building Act as successor in title Causation. 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.

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Christine Jones
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