Australia: Construction & Infrastructure - Whats News - 17 January 2017

Last Updated: 25 January 2017
Article by Troy Lewis, Stephen Burton and Suzy Cairney

Most Read Contributor in Australia, September 2018

In the media – National

What builders need to know about the ABCC at a practical level
Predictably, reactions to the passing of the legislation to reinstate the Australian Building and Construction Commission (ABCC) in December were mixed (11 January 2017). More...

A third of apartment cranes in banks' 'blacklisted' areas
More than one-third of the cranes hovering over apartment building sites in Australian cities are in neighbourhoods banks have "blacklisted" as lending problem spots. A new analysis reveals 38.2 per cent are within postcodes National Australia Bank and AMP have targeted for reduced or restricted lending, The Australian Financial Review reports (05 January 2017). More...

Infrastructure Australia delivers reality check on value capture
The release of 'Capturing Value: Advice on making value capture work in Australia' by Infrastructure Australia is a reality check on the ability of value capture to fund Australia's infrastructure gap (21 December 2016). More...

In the media – Victoria

Construction at Horsham North Hub kicks off
Minister for Regional Development, Jaala Pulford, today officially launched construction of the $4.3 million Horsham North Hub. It signalled the start of a new community centre that will generate 24 jobs during construction (04 January 2017). More...

Making Victorian Roads Safer In 2017
2017 will be Victoria's year of action against road fatalities, after a heartbreaking third-straight year of increased road deaths. Victorian drivers will see record investment in safe roads infrastructure and roads policing in 2017 (01 January 2017). More...

CEO appointed to Office of Projects Victoria
Victoria's strong pipeline of infrastructure projects is set to benefit from the experience of Mr Antony Damiani, who has been appointed as the inaugural Chief Executive Officer of the newly created Office of Projects Victoria (OPV) (30 December 2016). More...

In the media – New South Wales

Sydney Metro forging ahead but urban renewal lags behind
Planning approval of the Sydney Metro from Chatswood to Sydenham is great news, however there is a lack of certainty for development around the stations and areas around the rail corridor, says the Urban Taskforce (11 January 2017). More...

Apartments give dwelling approvals a pulse in December
The fall in dwelling approvals in New South Wales and Victoria is a growing concern. In trend terms, dwelling approvals in New South Wales and Victoria fell by 4.3 per cent and 2.5 per cent respectively. Nationally, apartments led the trend, growing 18.5 per cent over the month in seasonally adjusted terms (10 January 2017). More...

2017 to be the 'year of construction' in New South Wales
Sydney commuters are warned to expect delays all year, with two motorways, two light rail projects and several other major infrastructure builds changing routes around the CBD and in Parramatta (02 January 2017). More...

In the media – Queensland

Search is on for Cross River Rail board
The Palaszczuk Government is on the hunt for experts and innovators to drive Queensland's number one infrastructure priority through the board of the new Cross River Rail Delivery Authority (13 January 2017). More...

ASIC to probe Cullen collapse following "phoenix" allegations
Queensland's building watchdog has referred failed construction firm Cullen Group Australia to corporate regulators following claims of "illegal phoenix activity." The QBCC finally suspended Cullen Group's licence on December 15 to prevent the company from entering into contracts for work it could not complete (06 January 2017). More...

Design unveiled for Townsville's new $250 million stadium
The Queensland Government unveils the winning design for Townsville's new $250 million stadium, with international company Cox Architecture to lead a multi-company team for the project (22 December 2016). More...


Australian Bureau of Statistics
09/01/2017 Building Approvals, Australia, Nov 2016 (cat no. 8731.0).

Capturing Value: Advice on making value capture work in Australia
Capturing Value: Advice on making value capture work in Australia is the first of Infrastructure Australia's Reform Series. It provides guidance to governments and the private sector on how value capture can be applied in the Australian context (15 December 2016). More...

Practice and courts

ABCC Code for the Tendering and Performance of Building Work 2016
The ABCC commenced operations on 2 December 2016. On 2 December 2016, the Minister for Employment, Senator the Hon Michaelia Cash, also issued a new building code. The Code for the Tendering and Performance of Building Work 2016 applies to companies who wish to undertake Commonwealth-funded building work.
Enterprise agreements made from 2 December 2016 must comply with the Code in order to be eligible to be awarded Commonwealth-funded work. However, building industry participants covered by agreements made prior 2 December 2016 have until 29 November 2018 to ensure their agreements are Code compliant.

Senate Inquiry Update
Non-conforming building products
Status: Accepting Submissions; Date Referred: 11 October 2016; Submissions Close: 01 December 2016; Reporting Date: 25 May 2017.

Announcements, Draft Policies and Plans released 2016

Queensland Building Plan: Discussion Paper
The government would be rolling out a comprehensive consultation program through early 2017 with public consultation sessions right across the state. The Queensland Building Plan discussion paper and information about the consultation can be found at Have your say on the Queensland Building Plan - Closes 31 March 2017.

QBCC to keep eagle-eye on suspected illegal phoenixing
Chair of the Queensland Building and Construction Board (QBC) Dick Williams, said that the use of pre-packaged liquidations had become commonplace in the industry and he had instructed the QBCC to maintain a watching brief on any suspected illegal phoenixing (06 January 2017). More...


Auguste v Nikolyn Pty Ltd [2016] FCA 1579
HIGH COURT AND FEDERAL COURT – where significant delay in the delivery of judgment following trial – whether delay had an operative effect on the conclusion.
CONSUMER LAW – misleading and deceptive conduct – whether representation made – operation of deeming provision in s 51A of the Trade Practices Act 1974 (Cth). CONTRACTS – building contract – whether implied term of reasonable time – whether work completed within a reasonable time.
COSTS – indemnity costs – ulterior motive – groundless contentions – whether award of indemnity costs justified in the circumstances – payment of interest where significant delay in the delivery of judgment. Federal Circuit Court Rules 2001 (Cth) r 25; Trade Practices Act 1974 (Cth) ss 51A, 52.

Basetec Services Pty Ltd v Leighton Contractors Pty Ltd (No 6) [2016] FCA 1534
CONTRACTS – claim for monies owing under a contract – where applicant entered into a works contract to supply pipe and associated site installation work to the respondent – where contract provided for fixed lump sum amount in respect to the original scope of work – where contract provided a schedule of rates for site works – where contract provided for the valuation of variations to the scope of work – where contract terminated for convenience – whether clauses survive termination – whether claim fails because of failure to give prescribed notice pursuant to contract – construction of works contract – assessment of amount owing pursuant to works contract.
CONTRACTS – breach of contract – where crossclaimant claims cross-respondent breached the works contract – where alleged breaches of contract include failure to deliver pipe and fittings on agreed dates, demoblisation from site and defective workmanship – where cross-claimant claims damages for increased costs of manufacturing paid to new supplier – where cross-claimant claims damages for the costs of rectifying defective pipe and additional site jointing.
CONSUMER LAW – misleading and deceptive conduct – where applicant proceeded on the basis that the scope of works under the proposed contract was reflected entirely in the tender drawings issued – where respondent issued with revised and additional drawings by its principal before it enters into contract with applicant – whether failure to disclose revised and additional drawings to the applicant is misleading and deceptive conduct – where contract provided that further drawings may be issued and applicant told variations were possible.
CONSUMER LAW – relief sought – where applicant seeks an order varying contract so that a "cap" in the works contract would be removed and the applicant would be entitled to be compensated instead by reference to reasonable rates and prices – whether order sought would compensate applicant for loss and damage caused – whether order sought proportionate to loss or damage suffered – where applicant claims it would have not reduced tender price if it had known of variations – where applicant claims it did not seek or undertake other work at reasonable industry rates and prices because of respondent's conduct – Australian Consumer Law, ss 237, 243.
TORTS – inducing a breach of contract – where applicant claims to have entered a subcontract with a supplier – where respondent terminated contract with applicant and contracted directly with that supplier – consideration of elements of cause of action – whether there was a contract between applicant and supplier – whether respondent knew of that contract – whether respondent induced or procured a breach of that contract.
PRACTICE AND PROCEDURE – application to extend time to file evidence – where applicant seeks to rely on a more detailed expert report – where first expert report defective and failed to set out reasoning – where deficiencies in report and delay in application not the result of a deliberate tactic – where application would not result in extended adjournment – application allowed.
PRACTICE AND PROCEDURE – application to amend statement of claim in relation to misleading or deceptive conduct claim – where amendment would not cause embarrassment to respondent – application allowed.
PRACTICE AND PROCEDURE – application to amend statement of claim in relation to the claim in tort – where application made at conclusion of trial – where amendment would prejudice respondent – where proposed amendment could have been pursued before trial – application refused.
PRACTICE AND PROCEDURE – application to amend defence to withdraw admission – where admission inconsistent with evidence – application allowed.
EVIDENCE – where applicant's witness produced schedules which show his estimates of employee labour hours – where schedules not admissible as a business record by reason of Evidence Act 1995 (Cth), s 69(3) – whether schedules admissible pursuant to Evidence Act 1995 (Cth), s 29(4).

Southern Han Breakfast Point Pty Ltd (in Liquidation) v Lewence Construction Pty Ltd [2016] HCA 52
Appeal allowed. Statutory Construction – Building and Construction Industry Security of Payment Act 1999 (NSW), s 13(1) – Whether existence of reference date under construction contract precondition to making of valid payment claim.
Contract – Construction of terms – Where construction contract made provision for contractor to "claim payment progressively" by making a "progress claim" – Whether it was the parties' intention that the contractor's right to make a progress claim under construction contract was to survive termination. Building and Construction Industry Security of Payment Act 1999 (NSW), ss 8, 13.

ACCA Constructions Pty Ltd v Jelich [2016] FCCA 3288
BANKRUPTCY – Bankruptcy Notice to be served outside of Australia in Canada – application to the Court for leave under s.40(1)(g) of the Bankruptcy Act (Cth) – proper grounds for service outside Australia – application for leave granted. Bankruptcy Act 1966, s.40(1)(g).

Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) [2016] NSWCA 379
BUILDING AND CONSTRUCTION – adjudication of payment claim – review of adjudicator's decision – whether review available for non-jurisdictional error of law on the face of the record.
CIVIL PROCEDURE – application to reopen earlier judgment of Court – decision as to scope of supervisory jurisdiction – consideration of subsequent authorities – resolving uncertainty in reasoning.
STATUTES – scope of supervisory jurisdiction of Supreme Court – whether jurisdiction restricted absent an express privative clause – whether jurisdiction limited to non-jurisdictional errors of law on face of record – inter-relationship of Supreme Court Act 1970 (NSW), s 69 and Building and Construction Industry Security of Payment Act 1999 (NSW).

Boral Limited v Foley & Bear Pty Ltd trading as J&R Industries [2016] NSWCA 373
CONTRACT – concrete purportedly supplied by appellant resulted in damage to respondent – existence of contract between appellant and respondent – whether respondent's contract was alternatively with different Boral company – importance of contemporaneous documentary evidence in determining contracting party identity – whether appellant could rely on defence where defence first raised at trial after close of evidence – where defence did not admit but did not deny critical issues in proceedings.
PRACTICE AND PROCEDURE – whether leave should be granted to amend statement of claim to join the different Boral company as alternative defendant – where forensic decision made to not join alternative defendant at first instance.
COSTS – whether appellant's conduct at first instance has consequences for costs of trial – importance of co-operation between the parties and a "cards on the table" approach to litigation.

CKP Constructions Pty Ltd v Gabba Holdings Pty Ltd [2016] QDC 356
BUILDING AND ENGINEERING CONTRACTS – Recovery of monies – whether progress claim validly made, and when – whether principal entitled to withhold payment under the contract.
BUILDING AND ENGINEERING CONTRACTS – Payment claim under statute – whether payment schedule served within time – effect of email to employee – whether employee agent to receive communications – when "served".

Actron Investments Queensland Pty Limited v D.D.S Project Management Pty Ltd & Ors [2016] QSC 306
TORTS – NEGLIGENCE – STATUTES, REGULATIONS, ETC – APPLICABILITY AND EFFECT IN ACTIONS FOR NEGLIGENCE – GENERALLY – where plaintiff purchased a newly constructed industrial building where the floor was a slab on ground – where site contained marine clays that consolidated and caused the slab to settle – where defendant engineer designed the slab on ground and certified the slab complied with the Standard Building Regulation 1993 (Qld) – where plaintiff's use of the building as a warehouse was affected by the uneven slab settlement – whether defendant owed plaintiff a duty of care in designing and certifying the slab.
TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – WHERE ECONOMIC OR FINANCIAL LOSS – CARELESS ACTS OR OMISSIONS – where plaintiff suffered economic loss caused by replacing the floor of the industrial building – where plaintiff was the subsequent purchaser of building – whether plaintiff vulnerable in the sense described in Brookfield and Woolcock – whether a duty of care should be imposed on the defendant in designing the floor.

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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Suzy Cairney
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