Australia: Residential focus - 7 June 2017 - Part 2

Last Updated: 11 June 2017
Article by Christine Jones and Cameron Sheather
Most Popular Article in Australia, June 2017

In the media

Australian housing construction boom shows signs of slowing down Australia is witnessing a cooling off in its biggest-ever home-building boom as approvals for new projects sank 17.2 percent in April, a turnaround that could undermine policymakers' hopes for solid economic growth over the next two years (02 June 2017). More...

MBA: Court Decision Closing Right Of Entry Loophole Means Unions Must Play By The Rules The move by the Full Federal Court to close a loophole that allowed building union officials to bypass right of entry laws is good for the industry and the community. The Full Bench decision [2017] FCAFC 89 has overturned an earlier decision (Director of the Fair Work Building Industry Inspectorate v Powell [2016] FCA 1287) which found that union officials could bypass normal rules upon entering a workplace if invited by a health and safety representative (02 June 2017).  More...

Full Court confirms: Union officials must have valid federal right of entry permit when entering under state or territory OHS laws The Full Court of the Federal Court has today confirmed that union officials require a valid federal right of entry permit to enter a site under a State or Territory occupational health and safety law, including where a health and safety representative (HSR) invites the official on to site under an OHS law (02 June 2017). More...

MBA: Days Lost To Industrial Disputes Still Too High But Trending In Right Direction The latest data from the ABS shows that building union strikes cost the industry 10,200 days in the March quarter, which was 40% of the National total and the highest of any sector in the economy (01 June 2017). More...

Leaky Buildings and Toxic Mould Litigation over leaky buildings is on the rise over the last 12 months, particularly in Melbourne and Canberra (31 May 2017). More....

Unprecedented class action launched against Victoria's building regulator An unprecedented class action is being levelled against Victoria's building regulator for failing to protect dozens of home owners from shoddy and dangerous building work (31 May 2017). More...

Warning of dodgy product influx after slap on wrist for Infinity Cable supplier It will cost the construction industry more than $80 million to rectify, but the director of Infinity Cables Co Pty Ltd – responsible for providing faulty electrical cabling installed in thousands of homes across the country – has been fined just $18,000 plus $15,000 in costs in a ruling handed down by the NSW Supreme Court (30 May 2017). More...

Here's where the construction boom is in Australia Australia has been on an epic residential building boom in recent years, constructing more homes than ever before in the 2015/16 financial year, with the Housing Industry Association (HIA) showing Australia's top 20 residential building "hotspots" for the 2015/16 financial year (29 May 2017). More...

Thousands of homes remain at risk of house fires Thousands of homeowners across Australia remain at risk of electrocution or house fires due to faulty Infinity electrical cables installed in their homes. Four years into the Infinity cable recall, only 54 per cent of the 4,313 km of dangerous cable subject to a voluntary recall has been found and fixed (29 May 2017). More...

MBA: Builders back boost for Small Business The Government's move to extend the duration and expand the eligibility of the $20,000 tax write off, introduced in the Parliament today, will be a boost for small builders and tradies (25 May 2017). More...

Infinity Cable Importer Fined Just 18k Industry groups have responded with outrage as the director of a company which imported dangerous and non-complying electric cables which went into more than 20,000 homes and businesses across the nation was left with what many consider to be an inadequate penalty (02 June 2017). More...

Housing approvals remain at record levels Housing approvals continue at near-record levels with more than 72,000 residential building approvals over the past year, latest data from the ABS shows (30 May 2017). More...


Australian Bureau of Statistics 30/05/2017 Building Approvals, Australia, Apr 2017 (cat no. 8731.0) 24/05/2017 Construction Work Done, Australia, Preliminary, Mar 2017 (cat no. 8755.0)

Practice and courts


NSW BPB: Disciplinary Penalty Guidelines updated The Board's Disciplinary Penalty Guidelines were updated in December 2016. If referring to the Guidelines please ensure you have the current December 2016 version, as noted on the bottom-left of any page of the Guidelines (02 June 2017). More...

A Fair Go for First Home Buyers - Fact-sheet The NSW Government has developed a comprehensive package of measures designed to improve housing affordability across NSW (01 June 2017). More...

New BASIX energy targets On 1 July, new Building Sustainability Index (BASIX) energy targets will come into effect, as part of the government's initiative to reduce energy use and greenhouse gas emissions. For more detailed information, view the frequently asked questions. To find out more about BASIX or apply for a BASIX certificate, visit the BASIX website (30 May 2017).


Sinclair v Commissioner for Fair Trading [2017] NSWCATAD 159 Home Building Act – refusal of supervisor certificate for the categories of disconnection and reconnection of fixed electrical equipment – restoration of certificate not available – relevant qualifications not held for grant of supervisor certificate.

Huy Bui and Suzanne Bui v DB Homes Pty Ltd [2017] NSWCATCD 28 Compensation.

Kursun v Gareffa (No 2) [2017] NSWCATCD 23 COSTS – application of discretion – Rule 38 of NCAT Rules s 60 of NCAT Act – each party partially successful – effect of respondent's Calderbank letters – whether assessment of costs should be ordered.

Home Site Pty Limited v ACN 124 452 786 Pty Limited (formerly known as Nahas Construction (NSW) Pty Limited) [2017] NSWSC 698   BUILDING AND CONSTRUCTION – contract –extension of time clause – whether terms of contract relating to extension of time were modified by deed of amendment – whether defendant entitled to extension of time under contract – whether plaintiff entitled to liquidated damages under contract. BUILDING AND CONSTRUCTION – contract – liability for defective works – whether contract specification required rectification of defects – whether rectification of defects unreasonable. BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) s 10 – whether Home Building Act 1989 (NSW) s 10 applies. CONTRACT – building and construction contract – unenforceable – quantum meruit claim – whether plaintiff entitled to recover fair and just compensation for work completed in accordance with contractual specifications – whether costs incurred for work were reasonable – whether deductions should be applied to quantum meruit claim. CONTRACT – consideration – promise to perform existing duty – whether bona fides compromise of a disputed claim made. CONTRACT – construction and interpretation – "practical completion" – when did "practical completion" occur. CONTRACT – construction and interpretation – whether contract can be inferred from parties' conduct – whether words and conduct of parties would lead a reasonable person in the position of the other party to believe there was a contract. PRACTICE AND PROCEDURE – Uniform Civil Procedure Rules 2005 (NSW) r 14.14 – whether point should have been pleaded – whether point likely to take defendant by surprise.

Construction Technologies Australia Pty Ltd v Doueihi (No 4) [2017] NSWSC 684 PRACTICE AND PROCEDURE – Construction of orders for specific performance to give effect to equitable estoppel – No issue of principle.

Pfeffer v Driftwood Constructions Pty Ltd [2017] NSWCATAP 126 PRACTICE AND PROCEDURE — stay of the decision under appeal — whether appeal is rendered futile.

Vescio v Vidovic [2017] NSWCATAP 124 APPEAL – Home Building.

Abergeldie Contractors Pty Ltd v Fairfield City Council [2017] NSWCA 113 BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) – progress payments scheme – requirement of valid reference date under contract – date of practical completion – whether payment claim valid. CONTRACTS – construction of contract – meaning of "date of practical completion" – whether practical completion dependent on building superintendent's opinion, or objective existence of state of facts – whether "date of practical completion" is the date of certificate of completion.

Daoud v Hammoud [2017] NSWCATAP 114 APPEAL – home owners' renewal application in respect of defective and incomplete residential building work – builder's cross application for balance of contract price including variations – adequacy of reasons on particular disputed items - procedural fairness - appeal allowed in part.

Gallagher v Masters Installation Pty Ltd [2017] NSWCATAP 117 Breach of contract – damages - discharge of onus of proof – what evidence is sufficient – no application of the difficulty in estimating damages rule – costs – no special circumstances.

Bousgas v H.D. Constructions (Aust) Pty Ltd [2017] NSWCATAP 122 Administrative law- dismissal for want of prosecution, relevant considerations, miscarriage of discretion, Civil and Administrative Tribunal Act, s36 and relevance of guiding principle when considering dismissal for want of prosecution.

Guiffre v Srinivasan [2017] NSWCATAP 121 CONTRACT – Home Building – builder entered contract to complete building work – builder appointed third party project manager with authority to receive payments – third party carried out building work without reference to builder – third party received payments and did not account to builder – work not completed – builder liable for failure to complete work.


Acts assented to

Statute Law (Miscellaneous Provisions) Act 2017

Strata Schemes Management Act 2015 - Part 11, Clause 15 of Schedule 1 and Clause 16 of Schedule 3 commence by proclamation on 1 July 2017.

Regulations and other miscellaneous instruments

Home Building Amendment (Fees) Regulation 2017 (2017-209) — published LW 24 May 2017.

Bills introduced Government – 26 May 2017

Electronic Transactions Legislation Amendment (Government Transactions) 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.

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Christine Jones
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