Australia: Residential Focus – 26 April 2017

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 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.