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...
Published
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 www.hpw.qld.gov.au.
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...
Cases
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.
