Australia: Residential Focus - 7 September 2016

Last Updated: 16 September 2016
Article by Christine Jones
Most Read Contributor in Australia, September 2017

A recent decision of the NCAT Appeal Panel highlights the care to be taken with consent orders, having regard to the 2006 Court of Appeal decision in the Honeywood v. Munnings and section 18E(2) of the Home Building Act 1989 (the Act). The background to Bardon v. Occhiuto Enterprises Pty Ltd [2016] NSWCATAP 191 is that:

  • a money order and a work order had been made by the Tribunal by consent, further to a handwritten agreement reached between the parties;
  • the owner filed an application to renew proceedings under clause 8 schedule 4 of the NCAT Act on the basis that an order was not complied with; and
  • the application to renew was dismissed on the basis that the terms of the handwritten agreement and the consent order both indicated that the parties had agreed that the only items for the builder to complete were those specified in the consent orders, accordingly the owner's contention that the builder was obliged to complete the works entirely, not just the items specified in the consent order, was rejected.

It was from that decision that the owner appealed to the Appeal Panel.

The thrust of the owner's submissions before the Appeal Panel were that the consent orders contained a mistake and did not represent what had been agreed, such that the consent orders were not intended to affect the builder's obligation to otherwise complete the work. The builder submitted that it negotiated a reduction in the amount to be paid by the owner on the basis that only the work in the work order would be carried out.

In dismissing the appeal, the Appeal Panel noted that:

  • the consent orders expressly stated that the agreement was in full and final settlement and this meant that the only work to be undertaken was the work itemised in the work order and in consideration for that agreement the parties agreed to a reduction in price;
  • the decision in Honeywood v. Munnings prevented a second claim for breach of the same contract; and
  • the post-Honeywood v. Munnings amendment comprised in section 18E(2) of the Act did not assist the owner as there was no evidence that the owner did not know or could not reasonably be expected to have known of the existence of the other deficiencies when the warranty was previously enforced.

During the renewal application hearing, the owner had accepted that the work under the work order had been completed. However, the owner asserted before the Appeal Panel that one element of the work (albeit that it did not expressly form part of the work order) had not been carried out. The Appeal Panel applied Suttor v. Gundowda Pty Ltd [1950] HCA 35 and held that the owner was precluded from raising that issue on appeal in circumstances where the owner could have raised the issue at first instance, but did not do so.

In the media

RICS: International standard should underpin new NABERS apartment rating tool
By adopting the International Property Measurement Standard (IPMS) as the basis for its new rating system, the National Australian Built Environment Rating System (NABERS) programme can establish a new Australian standard in energy efficiency which can be exported globally (24 August 2016). More...

NABERS for apartments finally sees light of day
The COAG Energy Council has agreed to fund development of a NABERS tool for residential apartments, meaning Australia's fastest-growing property sector is finally on track to start slashing carbon emissions and reducing energy bills (24 August 2016). More...

Construction work tapering off in NSW
The latest results from the Australian Bureau of Statistics for construction work done in NSW show that after a continuous rise since 2012 the amount of construction is tapering off, says the Urban Taskforce (24 August 2016). More...

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...


Australian Bureau of Statistics
24 August 2016 - Construction Work Done, Australia, Preliminary, Jun 2016 (cat no. 8755.0)

Practice and courts

ABCB: Advisory Note released!
Fire performance of external walls and cladding Advisory Note is now available (26 August 2016) Advisory Note released!

GBCA: Key milestones for 2016 submission planning
The guidelines here (based on typical time frames), specify the deadlines you'll need to meet in order to have your project certified in time for key milestones. More...

Announcements, Draft Policies and Plans released 2016

NSW: Public Exhibition of Proposed Changes to Mine Subsidence Districts: consultation
The community is encouraged to submit feedback on the proposed changes. Further information can be found at Submissions on the proposed changes close 31 August 2016. Read the Q & A - Proposed changes to Mine Subsidence Districts.

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: Roadshow: online development submissions and Planning Portal
It is expected that online lodgement of all development applications and complying development certificates through the NSW Planning Portal will commence from early 2017 (17 August 2016).
Roadshow: online development submissions and Planning Portal

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.


Atteya v Commissioner for Fair Trading [2016] NSWCATOD 113
Merits review; home building - endorsed contractor licence application - general building work - relevant industry experience - Instrument made 5 January 2015 – acceptable referee - remuneration with money.

DSA Building Pty Ltd v Geronikos; Geronikos v DSA Building Pty Ltd [2016] NSWCATAP 187
Stay- applicable principles, interest of justice, absence of relevant proof of financial incapacity.

Dafcam Pty Ltd v Babeck; Babeck v Dafcam Pty Ltd [2016] NSWCATAP 199
APPEAL – procedural fairness – impermissible use of expert's report.

Bardon v Occhiuto Enterprises Pty Ltd [2016] NSWCATAP 191
Renewal of proceedings; clause 8 of schedule 4 of the Civil and Administrative Tribunal Act 2013.

Veroc Pty Ltd v Evacross Pty Ltd [2016] NSWCATAP 189
APPEAL - construction of Consent Orders; whether Tribunal functus officio; money order; whether Tribunal correctly construed Consent Orders.


Regulations and other miscellaneous instruments
Civil and Administrative Tribunal (Amendment No 4) Rule 2016 (2016-532) — published LW 26 August 2016.

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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