Australia: Residential Focus – 26 April 2017

Last Updated: 30 April 2017
Article by Georgia Appleby

Most Read Contributor in Australia, August 2018

Little v J & K Homes Pty Ltd [2017] NSWCATAP 84

The NCAT Appeal Panel considered an appeal by the Owners that the Tribunal had erred in dismissing their claim for defects on the basis that the building contract remained on foot.

At first instance, the Tribunal below relied on Brewarrina Shire Council v Beckhaus Civil Pty Ltd & 1 Or [2005] NSWCA 248 (the Brewarrina Case) to find that the owners did not have standing to bring proceedings for breach of statutory warranties for defective works where the contract had not yet been terminated.

The Tribunal below referred to the leading judgement of Ipp JA (Hodgson and McColl JJA agreeing) which states:

"While on this assumption (the Contract still being on foot), the Council may have been entitled to claim damages for delay arising out of Beckhaus' failure to achieve practical completion by the date for practical completion, it could not sue Beckhaus for defective or incomplete works... This situation would have changed when the Contract was terminated. When that occurred, the work (in its defective and incomplete state) was handed over to the Council. At that stage, the Council suffered loss by being in possession of defective and incomplete work."

The owners argued on appeal that the Tribunal below had applied the Brewarrina Case in the incorrect context. In the current case, the owners sought either an order for specific performance, or an order pursuant to section 480(1)(c) of the Home Building Act that the builder carry out work. The Appeal Panel held that such orders were different to a claim for damages and did not require the contract to be terminated. In doing so, the Appeal Panel concluded:

"Neither the statement of principle set out in... Brewarrina Shire Council v Beckhaus Civil nor the logic underlying that principle precludes the Tribunal from determining a claim for work orders... while the contract remains on foot."

As such, the Appeal Panel concluded that the owners did have standing to bring proceedings.

The Owners also argued additional appeal grounds including that section 480(1) of the Home Building Act granted the Tribunal jurisdiction to make work orders and that in the alternative, the Brewarrina principle may be overridden by the operation of section 18E(1) of the Home Building Act concerning rights with respect to breaches of statutory warranties.

Having made a determination in favour of the owners in regards to the first ground of appeal, the Appeal Panel did not express a concluded view on the remaining grounds.

The proceedings were remitted to the Tribunal for rehearing.

In the media

MBA: Company Tax Cuts A Big Win For Builders
The Senate's passing of the Government's company tax cut for businesses turning over less than $50 million is a win for the building and construction industry, the economy and the community. Denita Wawn, CEO of Master Builders Australia said, "This is a big win for 121,000 small and medium building businesses and will support the creation of more than 8,000 new jobs per year (21 April 2017). More...

New Units Now Outweigh Houses for First Time on Record
Building Activity data released by the Australian Bureau of Statistics (ABS) revealed, for the first time on record, there were more newly built units completed over the December 2016 quarter than houses (13 April 2017). More...

Stockland works with sustainability groups for new development
Stockland has worked closely with sustainability groups, the GBCA and Liveable Housing Australia (LHA) to design the new community to be a model development for affordability and sustainability, with homes to achieve an average 7 Star NatHERS rating (13 April 2017). More...

ICA: Why flood protection should be a nation building activity
The Insurance Council of Australia says the federal government should be pumping at least $200 million a year into flood mitigation infrastructure, and treating it as an important nation building exercise (13 April 2017). More...


NSW Builder License Reform Should Be Part of 'The Strategy'
One of Australia's largest urban renewal projects is set to take place over the next 30 years as part of the Parramatta Road Corridor Urban Transformation Strategy. The ultimate proof of its success or failure will be measured by what is actually delivered in terms of the functionality of the planning and the quality of the built environment assets including the associated infrastructure works (20 April 2017). More...

Designing the future of housing in NSW
Innovative architects and building designers have presented their visions for the future of medium density homes (12 April 2017). More... More...


Developing the scale and capacity of Australia's affordable housing industry
Australian Housing and Urban Research Institute: 20 April 2017
Vivienne Milligan, Hal Pawson, Rhonda Phillips, Chris Martin, Elton Consulting
This study investigated the capacity constraints affecting Australia's affordable housing industry, which is critical to addressing the housing needs of low-income Australians. More...

Australian Bureau of Statistics
12/04/2017 Building Activity, Australia, Dec 2016 (cat no. 8752.0).
12/04/2017 Construction Activity: Chain Volume Measures, Australia, Dec 2016 (cat no. 8782.0.65.001).

Practice and courts

ABCB: Improved WaterMark Product Database
The improved WaterMark Product Database has been launched, on 12 April 2017. More...

ABCB: The GDO calculator
The Gutters, Downpipes and Overflow (GDO) Calculator is now available (12 April 2017). More...

ABCB: Consultation RIS released
The Consultation RIS considers the application of the requirements for temperature control when replacing water heaters in private residences. More...

ABCB national - Advisory Note
On 30 April 2017, the transition period for two BCA referenced documents will end AS 3660 – Part 1 Termite management –New building work and AS 3786 – Smoke alarms . From 1 May 2017, this transition ends and only the 2014 editions of these Standards will be able to be used under the Deemed-to-Satisfy Provisions. More...

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.

NSW BPB: Approved E1 CPD activity worth 3 hours: enrolments open
The Board has approved CPD Training to deliver a three-hour continuing professional development (CPD) activity for E1 certifiers. Enrolments are now open (12 April 2017). More...


Brooks v Gannon Constructions Pty Limited [2017] NSWCATCD 12 Home Building, statutory warranty, defences, s18F, preferred outcome, s48 MA.

Little v J & K Homes Pty Ltd[2017] NSWCATAP 84 CONTRACT – Home Building contract – contract not terminated at time of hearing – whether appellants could maintain claims for performance of work required under the contract – whether appellants could maintain claim in respect of alleged breach of statutory warranties while contract remained on foot.

Singh v Building Professionals Board [2017] NSWCATOD 59
Accredited Certifier – findings of unsatisfactory professional conduct in respect of multiple complying development certificates – appropriate penalty.

Sande v Commissioner for Fair Trading [2017] NSWCATOD 55
HOME BUILDING – contractor licence – whether fit and proper person – false documents – non-disclosure of information.

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



Regulations and other miscellaneous instruments
Administrative Arrangements (Administration of Acts—Amendment No 2) Order 2017
(2017-141) — published LW 13 April 2017 – Schedule 1 Allocation of the administration of Acts by Minister – Home Building Act 1989.

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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