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

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...

Published

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...

Cases

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.

Legislation

NSW

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.

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
 
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 Topics
 
Related Articles
 
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions