Australia: Construction & Infrastructure – Whats News - 28 March 2017

Last Updated: 30 March 2017
Article by Troy Lewis, Stephen Burton, Suzy Cairney, Stephen Natoli, Christine Jones and Scott Alden

Most Read Contributor in Australia, August 2017

In the media – National

Infrastructure construction: infrastructure to fall $13.4 billion this year as WA & QLD get 'rough end of the pineapple'
The latest infrastructure construction figures show strengthening public infrastructure investment in transport and utilities – while mining remains at historic lows, according to the latest IPA/BIS Oxford Economics Australian Infrastructure Metric (27 March 2017). More...

Plan revealed to stabilise the nation's increasingly fragile power grid
The body which sets rules in the National Electricity Market has proposed a range of measures to stabilise the nation's increasingly fragile power grid (24 March 2017). More...

Housing price update 'shouldn't surprise anybody'
ABS data confirming the accelerated growth of the residential property market in late 2016 shouldn't come as a surprise, according to the Housing Industry Association (23 March 2017). More...

Snowy Hydro expansion could open the floodgates to the future
Upgrading the iconic Snowy Hydro Scheme could boost the flexibility of Australia's energy system and help it make the best possible use of our world-leading renewable energy resources, according to the Clean Energy Council (16 March 2017). More...

Can urban congestion really be solved with high speed rail?
Australian capital cities are facing challenges of diminishing housing affordability, increasing urban congestion, a perceived infrastructure shortfall and growing inequality, yet regional cities are declining. Both CLARA and the HSR Phase 2 study largely agree on the benefits of high-speed rail (15 March 2017). More...

In the media – Victoria

PM buries last hope for Hazelwood survival
Prime Minister Malcolm Turnbull has rejected calls for the government to intervene by halting Hazelwood's impending closure. Hazelwood will be the 10th coal plant to shut this decade in the Australian market (24 March 2017). More...

Australia's first plan to get the most out of our projects
Minister for Major Projects Jacinta Allan today released the Labor Government's Value Creation and Capture Framework – an Australian first that centres on realising and creating value, rather than taxing beneficiaries (21 March 2017). More...

Subcontractors owed millions of dollars let down by 'basket case' laws, builders say
Hundreds of subcontractors in the building and construction industry say they are owed large debts — in some cases millions of dollars — but are unable to recover the money because of overly complex recovery processes and poor enforcement of the law (17 March 2017). More...

In the media – New South Wales

More large-scale solar farms coming to New South Wales
Twelve new renewable solar power projects, including what could be the largest in the southern hemisphere, are in New South Wale's planning pipeline (16 March 2017). More...

In the media – Queensland

Building our Regions delivering for South West Queensland
Communities in South West Queensland, including Roma and Quilpie are benefitting from improved infrastructure and the support of local jobs under the Palaszczuk Government's $375 million Building our Regions program (24 March 2017). More...

New $33.5m Aurukun development to focus on local jobs
The Palaszczuk Government is calling on Far North Queensland businesses to tender for construction work in Aurukun, with today's announcement of a $33.5 million strategic housing development program in the remote community (23 March 2017). More...

QBCC cancels more licences of builder charged with deaths of two workers at Eagle Farm last year
Queensland's construction watchdog has revoked three licences, including concreting, joinery and carpentry, that had been granted to a builder facing charges over the deaths of two workers (21 March 2017). More...

Jobs flow soon from North Queensland mega-projects
A pipeline of more than 1,000 North Queensland jobs will be flowing by the fourth quarter of this year from the $250 million North Queensland Stadium and the $167 million Ravenswood Mine expansion (21 March 2017). More...


Gas vision 2050
Energy Networks Australia: 23 March 2017
Australia's peak gas industry bodies have released their vision for the future of gas in the Australian community.

Living well - apartments, comfort and resilience in climate change
Thrive Research Hub: 21 March 2017
This project examines how Melbourne apartment samples perform in heatwaves in the context of international standards. It also looks at retrofit options to future proof apartments and make them more liveable.

What price value capture?
Grattan Institute, Marion Terrill: 19 March 2017
State governments should be wary of following the Turnbull Government's advice to introduce "value capture" schemes to fund major new transport projects.

ACI Construction Briefs
A fortnightly communication highlighting key updates related to Australia's construction industry (14 March 2017).

Practice and courts

ABCC Code for the Tendering and Performance of Building Work 2016
The Code for the Tendering and Performance of Building Work 2016 applies to companies who wish to undertake Commonwealth-funded building work. Building industry participants covered by agreements made prior 2 December 2016 have until 29 November 2018 to ensure their agreements are Code compliant.


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 Closes: 31 March 2017.


Waste to Energy Infrastructure Fund
The Waste to Energy Infrastructure Fund is designed for the waste management sector, councils, water authorities and businesses with proposals for new or upgraded projects that can be commissioned by 31 December 2019. Expressions of interest close on 3 April 2017. A full application and detailed business case assessment process will follow for eligible project ideas. More...


Fitz Jersey Pty Ltd v Atlas Construction Group Pty Ltd [2017] NSWCA 53
BUILDING AND CONSTRUCTION – where builder filed payment claim under Building and Construction Industry Security of Payment Act 1999 (NSW) – where resulting adjudication determination filed as judgment debt – whether requirement to notify affected party of judgment debt before commencing proceedings to enforce it – whether s 25(4) creates right to such notice. BUILDING AND CONSTRUCTION – ex parte garnishee order obtained – whether duty of candour to inform court that affected party had commenced proceedings challenging validity of underlying adjudication determination under Supreme Court Act 1970 (NSW), s 69.

Blue Visions Management Pty Limited v Chidiac [2017] NSWSC 255
AUSTRALIAN CONSUMER LAW – misleading and deceptive conduct – whether representation made in trade or commerce. CONTRACTS – general contractual principles – whether intention to be bound by contract can be inferred from parties conduct – whether employee bound by contract which was not signed. CORPORATIONS – Corporations Act 2001 (Cth), ss 181, 182, 183 – whether improper use of position – whether improper use of information. EQUITY – general principles – fiduciary obligations – duty not to pursue personal interests in conflict with those to whom duty is owed – whether employees pursued their personal interests in conflict with those of their employer – whether novation agreement released defendants from the consequences of breach. EQUITY – remedies – Corporations Act 2001 (Cth), s 1317H – calculation of damages or equitable compensation EQUITY – fiduciary obligations – derivative liability for breach of fiduciary duty – whether company "alter ego" of wrongdoing fiduciary. ESTOPPEL – estoppel by conduct. PRACTICE AND PROCEDURE – pleadings and particulars – whether particulars were sufficient to raise defence of fully informed consent. PRACTICE AND PROCEDURE – pleadings and particulars – whether claim of deceit properly pleaded. EVIDENCE – admissibility of evidence – Evidence Act 1995 (Cth) s 69 – whether documents admissible as business records. TORTS – miscellaneous torts – deceit – whether plaintiff acted in reliance on representation – whether reliance caused the plaintiff loss. TORTS – negligence – negligent misrepresentation - business provides project management and specialised project planning services to clients in the construction, mining, civil engineering and infrastructure, defence, communications and health industries.

Empire Glass and Aluminium Pty Limited v Lipman Pty Ltd [2017] NSWSC 253
CONTRACTS – construction – dispute resolution clause – requirement under contract that expert determination be final and binding "unless a party gives notice of appeal" within 15 days – whether contractual right to litigate arises. PRACTICE AND PROCEDURE – notice of motion –application for permanent stay or dismissal of proceedings – whether dispute resolution clause gives rise to right to have dispute determined by the court - Empire agreed to supply Lipman with design, supply, construction and associated works for the refurbishment of the lobby of 580 George Street, Sydney for a contract price of $3,750,000 excluding GST (the Contract).

Bigby v Kondra & Anor [2017] QSC 37
Judgment for the plaintiffs against the first defendant in the sum of $1,822,490.43 (inclusive of interest to date).
TORTS – NEGLIGENCE – PROFESSIONS AND TRADES – BUILDERS – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – REASONABLE FORESEEABILITY OF DAMAGE – GENERALLY – Where the plaintiffs' house suffered damage through improperly installed windows producing internal pressure – where the windows were not adequately secured for weather conditions which occurred – where the windows were installed by a third party – where there was a contractual duty on the first defendant to supervise construction of the house – whether the first defendant failed to adequately supervise the construction of the house – whether the first defendant's duty to supervise could be satisfied by reliance on the third party contractor.
INSURANCE – GENERALLY – THE POLICY – CONDITIONS, WARRANTIES AND EXCEPTIONS – EXCLUSION CLAUSES – where the first defendant held a policy of insurance with the second defendant – where the first defendant assigned rights to indemnity under the policy to the plaintiffs – whether the plaintiffs' house was an occurrence in connection with the first defendant's business – whether the damage to the plaintiffs' house was a the product of the first defendant. Civil Liability Act 2003; Domestic Building Contracts Act 2000.

Sino Iron Pty Ltd & Anor v Worldwide Wagering Pty Ltd & Ors [2017] VSC 101
UNJUST ENRICHMENT – Third party fraudster caused plaintiffs' funds to be paid by mistake to fourth defendant – Fourth defendant a volunteer recipient – Fourth defendant a wagering company – Fourth defendant credited stolen funds to client's betting account and allowed client to bet away stolen funds on international sporting events – Defence of change of position based on acceptance of bets and payment of winnings – Whether fourth defendant acted in good faith when accepted bets and made payments – Held: (1) fourth defendant wilfully and recklessly failed to make such enquiries as an honest and reasonable person would have made in the circumstances, and thus had knowledge of the fraud, prior to accepting bets; (2) change of position defence rejected; (3) fourth defendant liable to restore stolen funds to plaintiffs – Australian Finance Services Leasing Pty Ltd v Hills Industries Ltd [2014] HCA 14; (2014) 253 CLR 560, 568 [1], 593 [66]–[67], 602–3 [97]–[98], 625–6 [157]; Southage Pty Ltd v Vescovi [2015] VSCA 117; (2015) 321 ALR 383, 399 [65]; Foskett v McKeown [2000] UKHL 29; [2001] 1 AC 102, 129 (Millett LJ), 108–9 (Lord Browne-Wilkinson), 115 (Lord Hoffman) discussed and applied.
UNJUST ENRICHMENT – Whether other defendants who indirectly received traceable proceeds of the stolen funds as volunteers are liable to make restitution – Held: in the absence of change of position defence, other defendants liable as indirect recipients – Fistar v Riverwood Legion & Community Club Ltd [2016] NSWCA 81; (2016) 91 NSWLR 732, 746 [62]–[64] applied.
TRUSTS – Innocent recipient of stolen funds by fourth defendant – Fourth defendant a volunteer – Fourth defendant became constructive trustee of funds when obtained sufficient knowledge of fraud – Whether other defendants who received traceable proceeds of stolen funds as volunteers also liable to account as trustees – Held: defendant recipients held traceable proceeds of stolen funds on trust for the plaintiffs – Black v S Freedman & Co [1910] HCA 58; (1910) 12 CLR 105; Heperu Pty Ltd & Ors v Belle [2009] NSWCA 252; (2009) 76 NSWLR 230, 253 [92], 264–8 [145]–[163]; Fistar v Riverwood Legion & Community Club Ltd [2016] NSWCA 81; (2016) 91 NSWLR 732, 746 [62]–[64] discussed and applied.
TRUSTS – Knowing receipt of trust funds – Knowing assistance in breach of trust – Whether defendants had sufficient knowledge to become liable for knowing receipt of trust funds or knowing participation in breaches – Held: defendants had requisite knowledge at relevant times – Baden v Soci้t้ G้n้rale pour Favouriser le D้veloppment du Commerce et de l'Industrie en France SA [1993] 1 WLR 509, 575-6 [250]; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, 163–4 [171]–[178] discussed and applied.
REAL PROPERTY – Torrens system title – Indefeasibility of title – Real estate purchased with traceable proceeds of stolen funds – Whether natural defendants obtained title to real estate as a result of fraud, so that the statutory exception to indefeasibility applies – One natural defendant had actual knowledge of both the fraud and the use of the stolen funds before property purchased with traceable proceeds – Other natural defendant had actual knowledge of fraud but not of use of proceeds of stolen funds to complete the purchase – Held: fraud exception applied to both natural defendants – Knowledge of first mentioned defendant brought home to other defendant on agency principles – Bahr v Nicolay (No 2) [1988] HCA 16; (1988) 164 CLR 604, 614; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, 163 [174]; Macquarie Bank Ltd v Sixty Fourth Throne Pty Ltd [1998] 3 VR 133, 143–4; Cassegrain v Cassegrain [2015] HCA 2; (2015) 254 CLR 425, 437–45 discussed and applied.
REAL PROPERTY – Torrens system land – Indefeasibility of title – Real estate purchased with traceable proceeds of stolen funds – Whether plaintiffs have in personam remedy against defendant proprietors of land so as to fall within exception to the indefeasibility principle – Held: in personam exception established – Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, 169 [193]; Bahr v Nicolay (No 2) [1988] HCA 16; (1988) 164 CLR 604, 637–8, 653 discussed and applied.
EQUITY – Tracing – Plaintiffs' stolen funds mixed in bank account containing funds of others with beneficial claims on money in account – Whether first-in first-out rule in Clayton's case should be applied – Prospect that all other beneficial claims satisfied by time of judgment – Held: (1) Clayton's case inappropriate for use as tracing method; (2) Court required further evidence to determine appropriate tracing method and amount – Re Global Finance Group Pty Ltd (in liq); Ex Parte Read and Herbert [2002] WASC 63; (2002) 26 WAR 385, 406–411 [93]–[120]; Heperu Pty Ltd & Ors v Belle [2009] NSWCA 252; (2009) 76 NSWLR 230, 256–7 [112]–[114], 259 [121]; Re Sutherland: French Caledonia Travel Service Pty Ltd (in liq) [2003] NSWSC 1008; (2003) 59 NSWLR 361 discussed and applied. GAMBLING – Whether stolen funds 'paid to a person as or on account of a wager or bet' placed in Victoria – Bets placed in New South Wales – Whether Gambling Regulation Act 2003 (Vic) s 2.6.3 applied to bets – Held: section not intended to have extra-territorial operation and thus inapplicable – Gambling Regulation Act 2003 (Vic) s 2.6.3, Interpretation of Legislation Act 1984 (Vic) s 48(b) – Horgan v Sieber [1976] Qd R 25 discussed.

RCR Energy Pty Ltd v WTE Co-Generation Pty Ltd [2017] VSCA 50
SUMMARY JUDGMENT – Misleading and deceptive conduct – Promises in written contract alleged to be misleading conduct – Whether contractual promise a representation – Whether claim has no prospect of success – Civil Procedure Act 2010 ss 62, 63.
PRACTICE AND PROCEDURE – Application for summary judgment – Leave to appeal – No substantial injustice – Supreme Court Act 1986 s 14C.

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
Scott Alden
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