Australia: Construction & Infrastructure News – 9 May 2017

Last Updated: 12 May 2017
Article by Troy Lewis, Stephen Burton, Suzy Cairney, Stephen Natoli, Kyle Siebel, Christine Jones, Scott Alden and Helena Golovanoff

Most Read Contributor in Australia, September 2017

In the media – National

Construction waste to be turned into fuel for greener cement
Environmental services company ResourceCo is setting up two new plants that will turn non-recyclable commercial and industrial waste into an alternative fuel product that can reduce the carbon profile (04 May 2017). More...

Seven hundred Green Star Performance Ratings and counting
The Green Building Council of Australia (GBCA) has surpassed 700 certifications and registrations under the Green Star – Performance rating tool, as investors demand assurance that their assets are well-managed (03 May 2017). More...

Performance Framework for Australia's major cities
The Federal Government is building a National Cities Performance Framework to measure improvements in Australia's largest cities. The Performance Framework will link to the Australian Government's National Map, using the powerful open data tool to provide new insights into Australia's economic geography (26 April 2017). More...

Further information on the National Cities Performance Framework, Cities Reference Group and Smart Cities Plan is available at the Smart Cities website. More...

CSIRO report shows cheap renewables solution to gas crisis
Renewable technology is the cleanest, cheapest and fastest solution to Australia's energy price crisis, according to the latest CSIRO report released today. The 'Electricity Transformation Roadmap' finds that Australia can generate electricity with zero carbon emissions by 2050 by embracing more large-scale renewable technologies such as wind, solar and storage (28 April 2017). More...

In the media – Victoria

The 2016-17 Victorian State Budget
The 2016-17 Victorian State Budget has been handed down in parliament by the Treasurer, Tim Pallas MP. The budget provides projections of government revenue and expenditure for the following year, and outlines services to be delivered (02 May 2017). More...

Victoria shows what an Infrastructure Budget looks like
The Victorian budget doubles real infrastructure funding compared to the decade average – providing firm dollars to back its projects, off the back of continuing asset recycling and other reforms, said Infrastructure Partnerships Australia (02 May 2017). More...

Power generators commit to worker transfer scheme
The Andrews Labor Government has reached agreement with all three power generators to participate in the landmark worker transfer scheme to help displaced Hazelwood workers (01 May 2017). More...

New Building Disputes Umpire on the beat
The Minister for Consumer Affairs Marlene Kairouz today declared Domestic Building Dispute Resolution Victoria open for business (DBDRV). The DBDRV is an independent agency that will act as a mediator to deal with contested building projects on behalf of both builders and homeowners (26 April 2017). More...

In the media – New South Wales

Second international airport for New South Wales
Construction has started on the upgrade of Newcastle Airport, which will allow direct international flights for the first time (01 May 2017). More...

Berejiklian must stop the shonky business of fake accreditation
The fragility inherent to the governance of regulatory standards and the impact that it has on the validity of the training and accreditation of persons working in the building and construction sector was once again on display with the reporting of a case in New South Wales that involved industrial scale fraud to sell essential workplace credentials (02 May 2017). More...

Compliance blitz to target Parramatta River building sites
The New South Wales Environment Protection Authority (EPA), Department of Planning and Environment, and local councils will join forces for a soil and erosion control blitz at construction sites around Parramatta River throughout May (01 May 2017). More...

In the media – Queensland

Watpac to build new North Queensland Stadium
Watpac Limited has today been appointed as the Managing Contractor for Townsville's $250 million North Queensland Stadium. The national construction and civil and mining group will deliver the two-stage design and construct contract (05 May 2017). More...

Brisbane River Catchment Flood Study release prompts flood-management plans
Homes across Southeast Queensland could be added to the list of flood-prone properties as councils get handed data to devise new flood-management plans (05 May 2017). More...

Local jobs loom as Colton gains coal mine leases
The proposed $300 million Colton Coal mine near Maryborough, and up to 120 new long-term jobs, are rolling up to the start line (04 May 2017). More...

Black lung training to upskill coal miner medicos
Doctors will require specific skills and experience in black lung to provide compulsory health checks on Queensland coal miners (04 May 2017). More...

Queensland shines in new solar report
Recent research by the Clean Energy Council confirms that Queensland is on track for over $2 billion in investment, based on new renewable energy projects under construction or due to begin construction in 2017 (03 May 2017). More...

Burdekin Falls Dam hydro-electricity to power North Queensland: Premier
The Palaszczuk Government will invest to develop a business case for a hydro-electric power station on the State's largest dam - Burdekin Falls Dam - to secure energy and support jobs for North Queensland (29 April 2017). More...

Government backs community housing with $1.8M deal
A new partnership agreement between the State Government and the state's community housing peak body is set to drive more investment in affordable housing across the sector (28 April 2017). More...

Substation upgrade to boost flood resilience
Powerlink's Rocklea Substation is undergoing a $21 million upgrade to boost its flood resilience (27 April 2017). More...


ACI Construction Brief
A fortnightly communication highlighting key updates related to Australia's construction industry.

Tracking towards 2020: encouraging renewable energy in Australia
Clean Energy Regulator: 03 May 2017
The report provides an overview of the operations of the Renewable Energy (Electricity) Act 2000 in 2016. The report also includes the annual statement on progress toward the 2020 Large-scale Renewable Energy Target.

Practice and courts

ABCC E-Alert: Building Code 2016 updated guidance material
The ABCC has today published updated guidance material to help stakeholders consider whether enterprise agreements are compliant with the Building Code 2016. The spreadsheet contains examples of both compliant and non-compliant clauses (05 May 2017). The updated Guidance Material is available on the ABCC website.

Changes to Commercial Building Disclosure and Best Practice Leasing Standard
From 1 July 2017, the mandatory disclosure threshold on commercial office buildings will be lowered from 2,000 square metres to 1,000 square metres. More information on the CBD Program can be found here; information on how building owners can improve the energy efficiency of their building in preparation for a Building Energy Efficiency Certificate can be found here.

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.

National Infrastructure Summit, Sydney, June 28 - June 29
This year the focus is on driving growth through smarter, more efficient cities. Over 300 of Australia's top investors, planners, contractors, advisers and policy-makers will be in attendance – at what is the nation's premier infrastructure event. Learn more and register your place here.


Economic impact guidelines for Queensland major projects released
The Queensland Government has made the first guidelines for Economic Impact Assessment for major or coordinated projects. Coordinated projects are typically major projects (for example the Townsville Port Expansion or the Adani Carmichael Mine and Rail project) that are complex, pose high environmental risk or are of strategic significance to the government; they are assessed by way of Environmental Impact Statement (EIS) by the Queensland Coordinator-General (27 April 2017).


Queensland Building and Construction Commission v Turcinovic [2017] QCA 077
PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – where application by appellant for summary judgment refused – where appellant sought recovery – where respondent carried out residential construction work – where there was a policy of insurance – where appellant made payments to the respondent as payments on a claim under the insurance policy – where respondent claimed payment was not a payment under the insurance scheme – whether payment was made on a claim under the insurance scheme – whether payment made under insurance policy – whether liability of a building contractor to pay – whether judge erred in refusing summary judgment – whether the reasonableness of a payment under the scheme was a ground of liability under s 71(1) Queensland Building and Construction Commission Act 1991 – interpretation of "payment on a claim under the insurance scheme" Uniform Civil Procedure Rules considered.

United Petroleum Pty Ltd v Bonnie View Petroleum Pty Ltd (In Liquidation) & Ors [2017] VSC 185
CONTRACT - Sale of petrol station business - contamination found- Side agreement making provision for vendor to complete remediation works and assign lease - works not commenced - Election to assign lease - Whether breach of agreement in failing to commence and complete works and for failure to do all things necessary to assign lease - Construction of terms of agreement - certainty of terms - Delay in election- Whether agreement varied - whether waiver of rights - Whether valid election - Whether termination by reason of negotiations towards/entry into subsequent direct lease with landlords.
LOSS AND DAMAGE - Whether losses suffered by reason of alleged breaches - Whether loss restricted to economic value of contract - Whether failure to mitigate.
BANK GUARANTEE - Whether plaintiff entitled to apply bank guarantee and retention amount towards damages pursuant to side agreement - Whether alternatively claims for damages can be set off against vendor's claims to guarantee/retention amounts pursuant to Corporations Act 2001 (Cth) s 553C - Whether calling on bank guarantee was a void disposition under Corporations Act 2001 (Cth) s 468.

Masters Home Improvement Australia Pty Ltd v North East Solutions Pty Ltd [2017] VSCA 88
CONTRACTS – Construction and interpretation of contracts – Whether Agreement for Lease incorporated Letter of Offer – Principles regarding when term will be implied or inferred well settled – Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337, Grocon Constructors (Victoria) Pty Ltd v APN F2 Project 2 Pty Ltd [2015] VSCA 190, Byrne v Australian Airlines Ltd (1995) 185 CLR 410.
CONTRACTS – Breach – Whether applicant had breached obligation to act reasonably and in good faith in resolving differences regarding cost of constructing store – No sufficient basis for findings of breach.
EVIDENCE – Inferences – Drawing adverse inferences in a civil case – Whether inferences drawn were open on the facts – Breach of the rule in Browne v Dunn – Failure by a party to put allegation to witness directly relevant to assessing whether inference is open – No sufficient basis for inferences and findings made – Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, Browne v Dunn (1893) 6 R 67.
DAMAGES – Quantification of loss and damage – Damages for loss of opportunity – Court must ask whether there was a commercial opportunity of some value and whether opportunity would have been pursued – Court looks to what amount should be awarded having regard to prospects of success if opportunity pursued – Judge applied discount of 25 per cent – 25 per cent discount did not reflect high risk that not all options would be exercised – Risk warranted applying discount between 50 and 75 per cent.
EVIDENCE – Expert evidence – Whether Court bound to accept evidence of experts – Court should not take on role of expert – Court's role is to evaluate expert evidence critically – Not Court's role to bring third set of opinions to arena or piece together own evaluation – Where conflicting evidence Court may accept part of evidence and reject other parts – Court may make adjustments to conclusion of expert in some circumstances – Court may disregard non cogent expert evidence.

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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Christine Jones
Scott Alden
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