Australia: Residential Focus – 12 April 2017

Last Updated: 16 April 2017
Article by Christine Jones and Cameron Sheather
Most Read Contributor in Australia, August 2017

LMA Contractors Limited v Changizi [2017] NSWCATAP 75

The Builder and the Owners entered into a contract to construct a duplex. The contract provided for liquidated damages of $300 per day for each day the work proceeded beyond the date for completion.

The building work was completed 133 days late. At first instance the Owners were awarded $33,306.06 for delay, representing additional interest charges incurred, rather than the daily rate for liquidated damages, which the Tribunal Member considered high and in truth a penalty.

The basis for this decision was a finding that 'the builder must have known that one and probably both dwellings were a commercial operation and that delay would cause significant commercial loss to the applicants.' Accordingly the Owners' claim fell within the second and probably the first limb of Hadley v Baxendale.

That decision was appealed by the Builder to the Appeal Panel.

The Appeal Panel found that the Tribunal below's decision may have been justified under the second limb of Hadley v Baxendale, if it were reasonably supposed to have been in the contemplation of both parties, at the time they made the contract. However there was no evidence tendered before the Tribunal below which provided a basis for the finding. Accordingly there was an error of law.

As to whether the claim fell within the first limb of Hadley v Baxendale, that the damages may fairly and reasonably be considered as arising naturally, that is, according to the usual course of things, from the breach of contract itself, the Builder submitted that financing costs in a residential context must always be paid, continue after completion and did not naturally arise from late completion. Further, the builder submitted that the appropriate measure of loss is the cost of alternate accommodation during the delay.

The Appeal Panel found it was clear that the development was of a two storey dual occupancy and the Owners were relying on a lender to pay progress claims. Therefore it was open on the facts for the Tribunal to have found that at least one of the residences was to be put to commercial use. The Builder conceded that one of the duplexes was most likely to have been used for relatives or sold.

It was found that the evidence supported a finding that that the actual costs of late completion claimed by the Owners applied to one of the residences being constructed, namely the occupancy that was not to be the Owners' residence and that the additional interest costs flowed from the Builder's breach.

The Appeal Panel accordingly reduced the award for delay by half.

In the media

Building boom surprisingly resilient, while retail sales disappoint
Australia's record-breaking building boom rolls on, with a further increase in construction approvals during February, however the retail sector continues to struggle (03 April 2017). More...

HIA: Population Growth Underpins Strong Housing Demand
ABS building approvals data again showed building activity firmly anchored in Sydney and Melbourne (03 April 2017). More...

Leaking buildings, mould and court battles: The dark side of the apartment boom
As apartments are built at a breakneck pace along Australia's east coast, experts fear a coming glut of problem buildings that cannot keep the rain out will trap many buyers in legal limbo (31 March 2017). More...

SafeWork NSW fast-tracking asbestos assessments on flood damaged properties
SafeWork NSW is waiving the five-day asbestos removal work notification period to allow immediate clean-up of asbestos debris from storm-damaged properties in north east NSW (05 April 2017). More...

Public Warning: Do not deal with Sam Robinson, also known as Bassam Marouche
NSW Fair Trading is warning consumers not to deal with Sam Robinson (Bassam Marouche), who enters into contracts for residential building work through his companies ATS Group (NSW) Pty Ltd and BMF Building Consultants Pty Ltd. Mr Robinson was convicted in 2016 of a number of offences under the Australian Consumer Law (NSW), the Home Building Act 1989, and the Crimes Act 1900 (05 April 2017). More....

NSW Housing Approvals Still at All-Time Highs
Housing approvals in NSW have continued at near-record highs according to the latest Australian Bureau of Statistics data, in a further sign the NSW Government's commitment to boost housing supply is delivering results (03 April 2017). More...

BASIX energy targets to change
The NSW Government has announced that the BASIX energy targets will be increased across the State in July 2017 (31 March 2017). More...

Sydney's housing crisis needs strong actions to maximise supply
With indicators showing a slow-down in housing approvals in Sydney some strong actions are needed to boost supply and help with affordability, says the Urban Taskforce (28 March 2017). More...

Published

ACI Construction Brief
27 March 2017 - Update: Last week the first HIA Renovations Roundup for 2017 was released. This is the most comprehensive quarterly update regarding renovations activity available in Australia. More... More...

Demand, deposits, debt: Housing affordability in Sydney
Briefing Paper No 1/2017 by Chris Angus: 03 April 2017
This paper presents the issue of housing affordability in Sydney in three parts. More...

Practice and courts

ABCB: Consultation RIS released
The Consultation RIS Considers the application of the requirements for temperature control when replacing water heaters in private residences Responses to the questions contained within the RIS are invited until Friday 21 April 2017. More...

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

NSW BPB: Read our March 2017 e-news
31 March 2017 - the latest 3-news is a regular digest of work by the Board, legislative updates, events, training and consultation opportunities. More...

Cases

Hoque v ARZ Building & Constructions Pty Ltd [2017] NSWCATAP 71
Civil and Administrative Tribunal – Appeal Panel – questions of law – building contract – errors of law established – matter remitted for consideration according to law.

Spasevski v Commissioner for Fair Trading [2017] NSWCATOD 53
HOME BUILDING – contractor licence – whether fit and proper person – criminal convictions – rehabilitation.

Skyworks v 32 Drummoyne Road [2017] NSWSC 343
PRACTICE AND PROCEDURE – freezing order – whether there is a good arguable case – whether there is a risk of removal or dissipation of assets - danger that a prospective judgment will be unsatisfied – whether evidence supports such a finding –Uniform Civil Procedure Rules 2005 (NSW), r 25.11, 31.27, 26.17. Building and Construction Industry Security of Payment Act 1999 (NSW); Home Building Act 1989 (NSW); Uniform Civil Procedure Rules 2005 (NSW).

LMA Contractors Limited v Changizi [2017] NSWCATAP 75
Damages for late completion of building work.

Pandanas Qld Pty Ltd v Chief Commissioner of State Revenue; Harris v Chief Commissioner of State Revenue; O'Shea v Chief Commissioner of State Revenue; Brown v Chief Commissioner of State Revenue [2017] NSWCATAD 106
Duties Act 1997; New Home Grant Scheme; meaning of "home", "residence".

Gassman & Anor v Peck [2017] NSWCATAP 66
Costs- building case- settled without hearing- appeal against refusal to order costs.

Oppidan Homes Pty Ltd v Yang [2017] NSWCATAP 67
Civil and Administrative Tribunal (NSW) – Home Building - Costs – Appeal – Exercise of discretion – error of law.

Legislation

NSW

Regulations and other miscellaneous instruments
Uniform Civil Procedure (Amendment No 84) Rule 2017 (2017-130) — published LW 7 April 2017.
Environmental Planning and Assessment Amendment (The Northern Road Upgrade) Order 2017 (2017-115) — published LW 31 March 2017.

Bills introduced – Government – 07 April 2017
Gas and Electricity (Consumer Safety) Bill 2017

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Christine Jones
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.