Australia: Construction & Infrastructure - What's News - 24 May 2016

Last Updated: 30 May 2016
Article by Troy Lewis, Janelle Kerrisk and Stephen Burton

Most Read Contributor in Australia, September 2017

In the media


UDIA: Peak bodies speak on long-term infrastructure funding
Eight concerned peak bodies, including UDIA National, have rallied together to call on all political parties to make a commitment to maintain long term infrastructure spending to address the infrastructure backlog and improve national productivity in a joint statement issued ahead of the 2 July federal election (20 May 2016).  More...

Arcadis: Infrastructure Investment Index ranks Australia 11th globally for attractiveness
According to the findings released in their third Global Infrastructure Investment Index, Australia appears to be playing catch-up to make projects appear bankable to investors (19 May 2016).  More...

Increased traffic congestion a symptom of larger infrastructure funding issue
The traffic congestion experienced by many of Australia's major cities is a symptom of a larger infrastructure funding issue that is taking its toll on Australia's productivity, Mayor Troy Pickard, President of the Australian Local Government Association (ALGA), has said 19 May 2016).  More...

Australian housing more expensive than it should be: PCA
Housing affordability is very real problem according to the Property Council of Australia, but potential solutions being put forward by policy makers will do little to address the issue (19 May 2016).  More...

50% reduction in emissions and $20 billion in savings possible, finds new ASBEC report
A new report underscores the massive potential for the built environment to slash emissions, save money and support other industries (12 May 2016).  More...

How zero carbon buildings can save the world – and $20 billion
ASBEC's new report, Low Carbon, High Performance, contains detailed economic modelling by ClimateWorks showing how reducing emissions in the building sector will save money, grow jobs and improve quality of life for all Australians (12 May 2016).  More...


Limitations for lawsuits involving building practitioners in Victoria
Section 134 of the Victorian Building Act is the statutory mechanism by which a lawsuit for negligence can be lodged against a Victorian building practitioner for a period of up to 10 years from the date upon which the occupancy permit or certificate of final inspection is issued (19 May 2016).  More...

Melbourne Metro EOI
The call for Expressions of Interest for the signalling, communications and other related systems on the Melbourne Metro Tunnel marks an important step in making the project a reality, said Infrastructure Partnerships Australia (12 May 2016).  More...

New South Wales

National Audit Office to investigate WestConnex funding
Sydney's controversial WestConnex toll road's federal funding will be scrutinised by the Australian National Audit Office following a request by federal Labor minister Anthony Albanese. He was concerned about the government funding infrastructure projects before Infrastructure Australia assessment or finalisation of business case (19 May 2016).  More...

New South Wales council mergers
The NSW Government's plan to reshape local councils will unlock better planning, better infrastructure and better services for the community – said Infrastructure Partnerships Australia (12 May 2016).  More...


Sunshine Coast airport project readies for take-off
The $347 million Sunshine Coast Airport runway expansion is poised for take-off, with the official environmental thumbs-up today (19 May 2016).  More...

Queensland outlook slumps
Confidence in the Queensland economy and building industry has hit a wall, dropping into negative territory for the first time in more than three years, according to Master Builders latest Survey of Industry Conditions for the March 2016 quarter (13 May 2016).  More...

Infrastructure investment must unlock more than votes
New report from QUT examines the long term impact of the BCP's New Farm/Teneriffe and Newcastle renewal projects. The Property Council points to the need for similar targeted infrastructure investment to unlock future growth (13 May 2016).  More...

Palaszczuk Government delivers better planning system for Queensland
Deputy Premier and Minister for Infrastructure, Local Government and Planning Jackie Trad said the new Planning Act 2016 would provide more opportunities for community involvement in planning, support responsible and sustainable development, and provide industry with more certainty to invest in jobs (12 May 2016).  More...


Investing in Australian cities: the legacy of the Better Cities Program
Queensland University of Technology: Lyndall Bryant
The Property Council of Australia (Queensland) has commissioned this report to examine the long-term economic impacts of the Better Cities Program (13 May 2016). 

Low Carbon, High Performance
Australian Sustainable Built Environment Council (ASBEC)
The report contains detailed economic modelling by ClimateWorks showing how reducing emissions in the building sector will save money, grow jobs and improve quality of life for all Australians (12 May 2016).  

Australian Bureau of Statistics
Housing Finance, Australia, Mar 2016 (cat no. 5609.0) – 11 May 2016

In practice and courts


Building Regulations have been extended
On Tuesday 16 February 2016, the Governor made the Subordinate Legislation (Building Regulations 2006) Extension Regulations 2016, which extends the operation of the Building Regulations 2006 until 5 June 2017.  More...

New South Wales

Council accreditation not affected by local government mergers
Certifiers: accreditation as a council certifier allows you to work as a certifier at any council in NSW (13 May 2016).  More...


Renewable Energy Expert Panel: Issues Paper
The Issues Paper covers a range of important areas including how investment takes place in renewable energy and how projects can be funded, through to technical issues associated with the integration of renewable energy into the electricity system.  More...


Hussain v CSR Building Products Limited, in the matter of FPJ Group Pty Ltd (In Liq) [2016] FCA 392
CORPORATIONS – claim to recover alleged unfair preferences under s 558FE of the Corporations Act – whether company insolvent at the time of making payments – whether payments were in relation to "unsecured debts" – meaning of an "unsecured debt" in s 588FA(1)(b) – whether a retention of title clause is a "security" – date for determination of the value of security in s 588FA(2) – operation of "good faith" in s 588FG(2) – operation of "suspicion" in s 588FG(2) – whether running account existed – whether defendant has a set-off under s 553C – whether set-off under s 553C can be made against a preference claim under s 588FF - Bankruptcy Act 1966 (Cth) s 122. 

Auguste v Nikolyn Pty Ltd & Anor [2016] FCCA 1045
CONSUMER PROTECTION – Misleading and deceptive conduct – building contract – whether representation as to time for building work to be completed – no representation – implied term that work to be undertaken in a reasonable time – work undertaken in a reasonable time – application dismissed.
CONTRACT – Building contract – where contract did not stipulate price for part of the work to be undertake – additional work undertaken not part of the contract – claim for reasonable remuneration for work and labour done.

DCT Projects Pty Limited v Champion Homes Sales Pty Limited [2016] NSWCA 117
CONTRACTS - building, engineering and related contracts - the contract – discharge, breach and defences to action for breach – where delay by the builder – whether repudiatory conduct– where purported termination by principal followed by purported termination by builder– onus on principal to prove work that could have been done – threats to suspend work made by builder in context of non-payment by principal – where builder suspended works for alleged breach by the principal – where principal did not serve a notice requiring the builder to remedy alleged breaches of contract – whether builder's conduct evinced intention to no longer be bound or to fulfil contact in manner substantially inconsistent with its obligations
CONTRACTS - building, engineering and related contracts – claims for extensions of time – where no objection by principal when claims for extensions of time first made in closing submissions at trial – validity of claimed extensions by the builder and any notice of dispute by the principal under contractual regime for giving notice of claims– calculation of extensions by calendar or working days
CONTRACTS - building, engineering and related contracts – determination of contract sum/price – nature of deposit – whether fee for advice or part of contract sum – terms of contract
TRADE AND COMMERCE - Trade Practices Act 1974 (Cth) and related legislation – misleading and deceptive conduct – contract expressly excluded retaining walls and gave provisional sums for certain items including rock excavation – where builder aware of need for large retaining walls and did not inform principal prior to entry into contract – whether reasonable expectation of disclosure – where principal represented by its own project manager – no complaint by principal contemporaneous with need for retaining walls becoming apparent
DAMAGES - General principles – causation – misleading and deceptive conduct – where failure to disclose – causation established if disclosure would have caused inaction or different action – whether recovery for discrete loss permitted – where damages claimed on a "no contract" case
Competition and Consumer Act 2010 (Cth), Sch 2 (Australian Consumer Law) ss 18, 236
Trade Practices Act 1974 (Cth), ss 52, 75B(1), 82
Uniform Civil Procedure Rules, rr 14.14(2), 51.36(2). 

Alucity Architectural Produce Supply Pty Ltd -v- Australian Solutions Centre; Alucity Architectural Produce Supply Pty Ltd -v- Paul J Hick [2016] NSWSC 608
BUILDING AND CONSTRUCTION – EQUITY – UNJUST ENRICHMENT – total failure of consideration – Building and Construction Industry Security of Payment Act 1999 (NSW) s 13 (5), s 19, s 22, s 28, s 29 – where a claimant makes a payment claim and then applies for adjudication – where the respondent to the payment claim argues that it is invalid under s 13(5) because it is the second claim in relation to a reference date under a building contract – where the adjudication application is referred by the authorised nominating authority to an adjudicator who accepts appointment and then determines that the payment claim is invalid and as a result he has no jurisdiction to determine the claim – whether the fees paid to the nominating authority and adjudicator are recoverable by the claimant on the basis that there has been a total failure of consideration and the authority and the adjudicator will be unjustly enriched if they are entitled to retain the fees paid to them – HELD: the doctrine of total failure of consideration has no application in the circumstances - the authority and the adjudicator have not been enriched and it is not unjust for them to retain the fees – no claim for restitution lies.  

Sierra Property Qld Pty Ltd v National Construction Management Pty Ltd & Ors [2016] QSC 108
ADMINISTRATIVE LAW – PREROGATIVE WRITS AND ORDERS – CERTIORARI – GROUNDS FOR CERTIORARI TO QUASH – EXCESS OR WANT OF JURISDICTION – PARTICULAR INSTANCES OF JURISDICTIONAL ERROR – where the applicant and the first respondent were parties to a construction contract – where the first respondent served a payment claim under the Building and Construction Industry Payments Act 2004 (Qld) for work claimed to have been performed under the original contract as well as additional work by way of variations – where an adjudication decision was made under the Act – where the adjudicator allowed the claim for work performed under the original contract at 95 per cent, without referring to (or making findings in relation to) the nine relevant contract categories of work identified in the adjudication process, about which extensive submissions were made – where the adjudicator stated that he had carefully considered the material which satisfied him that 95 per cent allowance was appropriate – where the adjudicator made allowances for variations under the contract – where, irrespective of the legal correctness of those conclusions as to the variations, the adjudicator had set out the reasons for them – whether the adjudicator failed to give reasons or adequate reasons as required by s 26(3)(b) of the Act – whether any failure to give reasons or adequate reasons as required by s 26(3)(b) of the Act was a jurisdictional error. 

RAW Build v JBK Industries & Anor [2016] VSC 242
PRACTICE AND PROCEDURE – Payment claim of a sub-contractor under a construction contract unpaid – Entry of judgment under s 28R Building and Construction Industry Security of Payment Act 2002 (Vic) (the 'Act') – Application for judgment under O 10 Magistrates' Court (Miscellaneous Civil Procedure) Rules 2010 (Vic) – Certified Extract of order made failed to record or evidence a judgment for a debt due of the unpaid portion of the amount payable to the applicant – Certified Extract did not record a judgment made under s 28R of the Act or under O 10 of the Magistrates' Court (Miscellaneous Civil Procedure) Rules 2010 (Vic).

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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