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...
Published
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
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 Closes: 31 March 2017.
Victoria
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...
Cases
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
Société Générale pour Favouriser le
Développment 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.
