Australia: Construction & Infrastructure - What's News - 30 August 2016

Last Updated: 13 September 2016
Article by Troy Lewis, Stephen Burton and Suzy Cairney

Most Read Contributor in Australia, September 2017

In the media - National

Construction industry collaborates on sustainable site facility standards
The sustainability focus is growing not only in relation to buildings, but also in terms of the temporary accommodation the people constructing them occupy on site, according to the Responsible Construction Industry Leadership Group (22 August 2016). More...

In the media - NSW

Residential construction hits all time high
Residential construction activity in NSW has hit an all-time high in the latest sign of the State's unprecedented rise in housing supply, today's ABS data shows. Real residential construction over the past year reached $19.4 billion –the highest level on record (24 August 2016). More....

Cooperative Drilling Round 2 preferred applicants announced
The Division of Resources and Energy's Geological Survey unit has finalised the fifteen preferred applicants for the State's New Frontiers Cooperative Drilling Program (24 August 2016). More....

In the media - Queensland

Total fines for shed masterminds close to $270,000
Paul De Bruin, Johnathan Melein, and their companies, LBM Projects Pty Ltd and DMV Ipswich Pty Ltd, were fined close to $270,000 for unlawful building work and other related offences in Southeast Queensland by the QBCC (26 August 2016). More...

Milestone for $34.2 million Bill Fulton Bridge project
The $34.2 million Bill Fulton Bridge duplication has reached a milestone this week with tenders called for the project which is expected to be awarded in October. The project will be one of the first to be delivered under the State Government's Significant Regional Infrastructure Projects Program (SRIPP), part of the $2 billion State Infrastructure Fund (24 August 2016). More...

7 Major Projects Shaping Brisbane As Australia's New World City
There are a number of development projects announced or underway in Brisbane that are projected to be up and running by 2022, each bringing its own unique quality to the city (24 August 2016). More...

Warning about risks in unlicensed building work
The building industry regulator has warned the public about using unlicensed entities, after four companies were collectively fined more than $40,000 for unlicensed building work services and other offences. The QBCC urged the public to only contract with licensed individuals or companies, regardless of the size of their project (16 August 2016). More...

In the media - Victoria

Planning Approvals Drive New Homes And More Jobs
Minister for Planning Richard Wynne has approved three CBD apartment towers and a new long-term precinct plan in the south-east – part of the Andrews Labor Government's work to encourage new housing and more jobs through construction (24 August 2016). Planning Approvals Drive New Homes And More Jobs.

Victoria's Greener Government Buildings program is back
The Victorian Andrews government has reinstated the Greener Government Buildings program, a government building energy efficiency program that was axed by the former Coalition government in 2014, despite being on track to save taxpayers billions in avoided energy costs (22 August 2016). More...

Victoria's building permits top $31 billion in 2015-16
Led by houses and apartments, the value of building work in Victoria in the 2015-16 financial year exceeded $31 billion for the first time, according to building permit data reported to the Victorian Building Authority (VBA) (24 August 2016). Victoria's building permits top $31 billion in 2015-16.

Practice and courts - NSW

NSW: The Building Amendment (Construction of Swimming Pools and Spas) Regulations 2016
The Building Amendment (Construction of Swimming Pools and Spas) Regulations 2016 (S.R. No. 104/2016) will come into effect on 3 October 2016. A copy of the amending regulations made today can be found here Building Amendment (Construction of Swimming Pools and Spas) Regulations 2016.

NSW BPB: Have your say by 28 August: updating AS 1926.1 - swimming pool barriers
A proposal to amend Australian Standard 1926.1:2012 - Safety Barriers for swimming pools is being considered. Have your say by 28 Aug: updating AS 1926.1 - swimming pool barriers.

Practice and courts - Queensland

QLS: Research on BCIPA changes

Practitioners are invited to assist with research on the involvement/removal of authorised nominating authorities from the Building and Construction Industry Payments Act (BCIPA). (24 August 2016). Research on BCIPA changes.

QBCC Disciplinary actions

Licensees excluded - 14 August to 21 August 2016 (PDF).

Licensees suspended or cancelled - 14 August to 21 August 2016 (PDF).

Practice and courts - Victoria

VBA: Building Act changes that may affect you
Further changes to the VBA's powers and functions under the Building Act 1993 are scheduled to come into effect on 1 September 2016. Some of these changes may affect your obligations under the law. More...


Allcott Hire Pty Ltd v Silk [2016] NSWSC 1135

APPEAL – question of law – construction of clause in commercial contract – principles of construction – ambiguity – decision below concluded no meaning to clause – appeal allowed; CONTRACT – guarantee or indemnity – strictissimi juris – principles of construction of surety contract – common sense, commercial construction – appeal allowed - One Build Pty Limited ("One Build") sought to hire equipment, scaffolding, from Aluminium Scaffolds Pty Limited, a member of and part of the Active Hire Group Pty Limited.

The Owners – Strata Plan No 77475 v Walker Group Constructions Pty Ltd & Anor [2016] NSWSC 1127

REFEREES - nature of proceedings on challenge to Referee's Report DAMAGES - where plaintiff relied upon expert's advice in respect of the scope of works to rectify defects - where defendants had warned plaintiff that scope of works was exploratory, speculative and not urgent - where findings made that the work carried out was not urgent - where works found to be unnecessary and excessive - where Referee found that defendants not liable for such work - whether those aspects of Referee's Report should be rejected DAMAGES - where failure to comply with relevant Standard - where technical breach - whether plaintiff entitled to remedial work to achieve contractual conformity.

Surfstone Pty Ltd & Anor v Morgan Consulting Engineers Pty Ltd [2016] QCA 213

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – EXTRINSIC MATERIALS INCLUDED IN CONTRACT – where the appellants are owners of land on which a distribution warehouse was intended to be built – where the appellants commissioned an architect to design the warehouse – where the architect retained the respondent to perform civil and structural engineering services – where the respondent submitted a fee proposal which stated that the commission of the works "would be generally in accordance with the ACEA Guideline Terms of Agreement" – where the Guideline Terms included a clause limiting the liability of any consulting engineer at the expiration of one year from the completion of the work – where signs of problems became apparent and the appellants commenced proceedings against the respondent five years later for negligence – where the primary judge found that this clause operated as a bar to the appellants bringing the proceeding – where, on appeal, the appellants contended that the Guideline Terms were not incorporated in full into the contract, and that because of the unusual and onerous nature of the term the respondent should have brought it to the attention of the architect – whether the Guideline Terms are taken to be incorporated in full into the contract – whether the respondent should have brought the limitation of liability term to the attention of the architect working for the appellants.

EVIDENCE – ADMISSIBILITY – OPINION EVIDENCE – EXPERT OPINION – BASIS OF OPINION – where the appellants objected, at trial, to the admission of three reports from expert witnesses on the basis that they were not truly expert opinion – where the respondent conceded that the report contained factual evidence based on the experience of the authors – where objection to the reports was then pressed on the basis that the evidence was irrelevant – where the learned primary judge relied on Maxitherm Boilers Pty Ltd v Pacific Dunlop Pty Ltd [1998] 4 VR 559 to overrule the objection and admit the evidence as relevant – whether the primary judge erred in admitting the evidence.

RCR O'Donnell Griffin Pty Ltd v Forge Group Power Pty Ltd (Receivers and Managers Appointed) (in liq) & Ors [2016] QCA 214

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT –CONSTRUCTION OF PARTICULAR CONTRACTS – SECURITY AND RETENTION OF FUNDS – where the first respondent ("Forge") contracted with a third party company to construct a power station – where Forge subcontracted with the appellant ("RCR") to provide electrical work ("Subcontract") – where pursuant to the Subcontract RCR provided two unconditional bank guarantees to which Forge could have recourse where it "remains unpaid after the time for payment" – where Forge became insolvent and the second and third respondent receivers and managers were appointed in February 2014 – where there was an outstanding progress payment from Forge to RCR of approximately $4.2 million – where on 22 April 2014 RCR, Forge and the third party entered a Deed of Novation ("Deed") discharging the Subcontract but not affecting "any accrued rights, obligations, claims or liabilities" between RCR and Forge under the Subcontract before the novation date – where the Deed further provided that Forge was to return the bank guarantees or cause them to be cancelled or unenforceable except to the extent that Forge considered it may have a claim against RCR or Forge believed RCR would pursue a claim against it – where on 21 May 2014 the receivers informed RCR that Forge "has or may have an outstanding claim" – where on 3 June 2014 the receivers caused Forge to appoint a Superintendent pursuant to cl 20 of the Subcontract, who on the same day certified that RCR should pay Forge approximately $2.5 million in liquidated damages for delay – where the receivers subsequently informed RCR of their intention to make demand upon one of the bank guarantees to satisfy the liquidated damages certified – where RCR commenced proceedings in the Trial Division contending that because the Subcontract had been discharged the Superintendent's appointment was invalid and, consequently, there was no accrued right to payment preserved by the Deed entitling Forge to call upon the guarantees – where RCR alternatively contended that Forge was precluded from having recourse to the guarantees by either a contractual or equitable set off of the debt due to RCR – where the learned primary judge found in favour of Forge – where RCR contends that the learned primary judge erred in his construction of the Subcontract and the effect of the Deed – whether on the correct construction of the Subcontract and Deed, Forge, since the date of novation, has been entitled to demand payment of the bank guarantees.

Imerva Corporation Pty Ltd v Kuna [2016] VSC 461

ADMINISTRATIVE LAW – Application for leave to appeal from Victorian Civil and Administrative Tribunal on questions of law – whether parties to a major domestic building contract had agreed that the progress payments regime prescribed by the Domestic Building Contracts Act 1995 did not apply – whether plaintiff able to contend that defendants were estopped from insisting upon compliance with the statutory regime for progress payments – decision of Tribunal not attended by sufficient doubt to warrant the grant of leave to appeal – Victorian Civil and Administrative Tribunal Act 1998 s 148 – Domestic Building Contracts Act 1995 ss 11, 40, 132 – Domestic Building Contract Regulations 2007 reg 12.

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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