Australia: Construction & infrastructure news – 21 June 2017

Last Updated: 25 June 2017
Article by Troy Lewis, Stephen Burton, Suzy Cairney, Stephen Natoli, Kyle Siebel, Scott Alden, Christine Jones and Helena Golovanoff

Most Read Contributor in Australia, December 2017

In the media – National

MBA: London Apartment Tower Fire, Are There Issues For Australia?
Denita Wawn, CEO of Master Builders Australia said the relevant laws we have in Australia are comprehensive and under almost continuous review. Master Builders and members understand the importance of ensuring building products are fit for purpose and installed correctly, but there is always a risk that some products entering Australia don't meet minimum requirements (15 June 2017). More...

GBCA: We need bipartisan support for a new energy blueprint
The recommendations outlined in the Finkel Review demand bipartisan support, says the nation's green building authority. The Independent Review into the Future Security of the National Electricity Market has found a Clean Energy Target is the most effective mechanism to reduce emissions while supporting energy security and reliability (09 June 2017). More...

Builder Insolvencies and Holes in the Ground
The Australian high-rise apartment boom is winding down and there are signs that some contractors are winding up (08 June 2017). More...

In the media – Victoria

A Bolt from the Blue: The VBA Class Action
On 1 June, the VBA were served with the Range View Supreme Court writ. This action is unprecedented and its outcomes will determine the shape of the building industry for many years into the future. Both the builders and consumers have had enough, and as the class actions mount, the VBA may finally understand the role of a regulator as the Supreme Court will be the final judge of their performance or the lack of it (14 June 2017). More...

Subsequent Purchasers: What are Builders still potentially liable for?
It's relatively common to have defects in a commercial or residential building that are not immediately apparent, and in these cases a court or tribunal such as VCAT often awards compensation. Questions often arise for builders generally as to their potential exposure to pay damages in such a case and to whom (13 June 2017). More...

In the media – New South Wales

M4-M5 link tenderers shortlisted
Premier Gladys Berejiklian and Minister for WestConnex Stuart Ayres said John Holland CPB Contractors joint venture and Lend Lease Samsung Bouygues joint ventured have been selected to tender for the M4-M5 link which will create a non-stop underground western bypass of Sydney CBD (16 June 2017). More...

$1 Billion for Western Sydney roads The New South Wales 2017-18 State Budget has allocated more than $1 billion to improve roads across Western Sydney. The investment includes $153 million for Western Sydney growth roads such as the Narellan Road upgrade and the second stage of the upgrade of Schofields Road (16 June 2017). More...

In the media – Queensland

Inland rail on-track to bring jobs to South East Qld
The third Queensland stage of the $10.9 billion Melbourne to Brisbane Inland Rail Project has been declared a coordinated project by the state's independent Coordinator-General (16 June 2017). More...

MBA State Budget 2017-18 Highlights for building and construction While the budget was touted as delivering job-creating infrastructure, the total capital program was down on last year's budget by half a billion to $10.2 billion (16 June 2017). More...

Gateway Upgrade North reaches half way mark
Australian Government: The $1.1 billion Gateway Upgrade North project has reached the halfway mark of construction, and has been given an independent design rating of 'excellent'. The Australian Government is committing $914.18 million and the Queensland Government is committing $228.54 million to the Gateway Upgrade North project (14 June 2017). More...

Port of Brisbane planning advisors appointed
Port of Brisbane (PBPL) has appointed a number of technical advisors to progress planning for the proposed Brisbane International Cruise Terminal. The appointments include, CPM Engineering – Project Management Assistance; ARUP (in conjunction with Arkhefield) – Engineering and Design consultants; and BMT WBM and Buckley Vann Planning – Planning applications and lodgements (09 June 2017). More...

Practice and courts

National Infrastructure Summit, Sydney, 28 – 29 June
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.


Queensland Master Builders: Queensland's new planning system
New planning legislation set to replace the Sustainable Planning Act 2009 will come into effect from 3 July 2017. Benefits for builders and contractors - QMB have outlined some changes that have been made to the existing legislation and planning system, and the resulting benefits. More...

Better Mine Rehabilitation for Queensland
The Queensland Government is proposing a new policy for mine rehabilitation outlined in a discussion paper. The proposed rehabilitation policy is a key component of an integrated mined land management framework, which also includes six delivery elements. Read the Better Mine Rehabilitation for Queensland discussion paper and complete the survey.


Building Regulations Sunset Review
DELWP has released the proposed Building Regulations 2017 for consultation. Have your say on the proposed Regulations until 18 July 2017. More...


Hi-Rise Access Pty Ltd v Standards Australia Limited [2017] FCA 604
CONSUMER LAW – Misleading or deceptive conduct –knowledge to be imputed to the target audience – whether the impugned statements conveyed the representations alleged – whether representations of fact or opinion – whether representations "in trade or commerce" – principles relevant to conduct "in trade or commerce" – whether activities of peak Australian Standards body in developing, publishing and promoting Australian Standards is "in trade or commerce"– conclusion that the relevant activities are not "in trade or commerce" - Competition and Consumer Act 2010 (Cth); Sch 2, Australian Consumer Law; Trade Practices Act 1974 (Cth)
Hi-Rise alleges that these representations constitute misleading or deceptive conduct in trade or commerce, in breach of s 18 of the Australian Consumer Law (the ACL) in Schedule 2 of the Competition and Consumer Act 2010 (Cth). Amongst other things it contends that the requirements under the 2013 Standard in fact make it less safe and more risky for users than the requirements under the 1992 Standard, and the 2013 Standard does not provide greater safety to users, does not ensure building sites provide the optimal level of safety to users, and is not primarily intended to provide safe access and to reduce the risks to the safety of users.

UGL Rail Pty Limited v Trox (Australia) Pty Limited [2017] NSWSC 770
BUILDING AND CONSTRUCTION – whether sound attenuators designed and supplied by the defendant for the Lane Cove Tunnel Project were defective – BUILDING AND CONSTRUCTION – whether UGLR instructed Trox to repair, modify, replace and/or provide again the defective attenuators – where notices given to Trox were ineffective – CONTRACT – whether UGLR is entitled to recover damages – where Alstom subcontracted to Trox responsibility to design and supply the sound attenuators (Trox subcontract) – where Alstom sold its "Business" and all "Contracts" relating to it to UGLR (Sale contract) – whether Alstom appointed UGLR to be its agent for the purpose of administering and performing the Trox subcontract – whether UGLR had implied actual authority to administer and perform the Trox subcontract – whether UGLR's conduct was ratified by a deed of assignment – whether Alstom became a trustee of its rights under the Trox subcontract for the benefit of UGLR – CONTRACT – whether after completion of Sale contract Alstom suffered loss compensable in damages by reason of the defects – CONTRACT – whether UGLR incurred costs and expenses – where works were done by related companies – where UGLR has no obligation in relation to the costs and expenses incurred by those companies.

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.

Minesco Pty Ltd v Anderson Sunvast Hong Kong Ltd [2017] VSC 299
ADMINISTRATIVE LAW — Judicial review — Delay in commencing proceeding — Extension of time — Supreme Court (General Civil Procedure) Rules 2015 (Vic) — O 56 — r 56.02(3). ADMINISTRATIVE LAW — Building and Construction Industry Security of Payment Act 2002 (Vic) — Natural justice — Whether lack of appearance of procedural fairness in adjudication process amounts to breach of natural justice.
BUILDING AND CONSTRUCTION —Claim for relief in the nature of certiorari quashing an adjudication determination — Whether adjudicator denied respondent natural justice — The Hickory principle (Hickory Developments Pty Ltd v Schiavello (Vic) Pty Ltd & Anor [2009] VSC 156; (2009) 26 VR 112, 143 [142] considered — Building and Construction Industry Security of Payment Act 2002 (Vic) s 21.

Melbourne Steel Erectors v M&I Samaras [2017] VSC 308
ADMINISTRATIVE LAW – Judicial Review – Determination of an Adjudicator appointed under the Building and Construction Industry Security of Payment Act 2002 (Vic) – Withdrawal of payment claim – Duplication of Final Payment Claim in respect of the same reference date – Whether error of law amounting to jurisdictional error – Certiorari sought – Building and Construction Industry Security of Payment Act 2002 (Vic), ss 14(6) and 14(8).



Environment and Infrastructure Legislation Amendment (Stop Adani) Bill 2017
Introduced and read a first time 13 Jun 2017; Second reading moved 13 Jun 2017; Second reading debate 15 Jun 2017 - proposes to make sure that the Australian Government cannot hand out $1 billion to Adani for their coal railway via the Northern Australia Infrastructure Facility (NAIF) by creating a broad "suitable person" test under the Northern Australia Infrastructure Facility Act 2016.

Building and Construction Legislation (Non-conforming Building Products - Chain of Responsibility and Other Matters) Amendment Bill 2017

The Bill will seek to amend the Queensland Building and Construction Commission Act 1991 to enable QBCC to inspect sites, take samples for testing and direct rectifications. Provisions within the Bill will place additional duties on building supply chain participants and widen grounds for the QBCC to take disciplinary action against a licensee. The Committee has called for submissions by 21 June 2017. The Government aims to have the legislation in effect by the end of the year.

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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Scott Alden
Christine Jones
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