Australia: Residential Focus - 5 July 2017 - Part 2

Last Updated: 7 July 2017
Article by Christine Jones and Cameron Sheather

In the media

Government slammed for inaction on dodgy materials as Senate inquiry delayed again
Government inaction on dodgy building products in the wake of London's Grenfell fire has been labelled "unconscionable", following a decision to yet again delay reporting for a Senate inquiry into non-conforming building products (29 June 2017). More...

Western Sydney architect barred from practice over substandard apartment design
Western Sydney architect Alex Sibir has been fined almost $20,000 and banned from practicing for five years after the NSW Architects Registration Board found he'd failed to comply with guidelines for apartment design in the state (30 June 2017). More...

Aussie Building Suppliers Hit Out at Lack of Action on Non-Complying Products
A key lobby group for building product suppliers in Australia has hit out at what it says is a lack of action on to stop dangerous and non-conforming products being used within construction projects in Australia (30 June 2017). More...

The changes to ePlanning tools and services you need to know
With the release of the Simplified Housing Code, and the expansion of planning services coming soon to the NSW Planning Portal, the Electronic Housing Code will be decommissioned (28 June 2017). More...

NSW housing approvals continue to soar
In less than eight years there has been a 194 per cent increase in approval numbers, fuelled by the growth in multi-units including townhouses and apartments (28 June 2017). NSW housing approvals continue to soar

Practice and courts

NSW BPB: Strata building bond scheme now commences 1 January 2018
The new strata building bond and inspection scheme will now commence on 1 January 2018. It was originally scheduled to commence on 1 July 2017 (23 June 2017). More...


PND Civil Group Pty Ltd v Bastow Civil Constructions Pty Ltd [2017] NSWCA 159
CIVIL PROCEDURE – appeals – where new issues raised for the first time on appeal – CONTRACTS – damages – whether respondent entitled to recover cost of the management time spent by its employees in dealing with the appellant's defective work – CIVIL PROCEDURE – appeals – costs – whether primary judge's discretion miscarried.

Watpac Constructions (NSW) Pty Limited v Charter Hall Funds Management Limited [2017] NSWSC 865
BUILDING AND CONSTRUCTION – validity of payment claim – object and application of the Building and Construction Industry Security of Payment Act 1999 (NSW), s 13 – where construction work identifiable – where there was an available reference date – BUILDING AND CONSTRUCTION – whether estoppel defence available – where plaintiff did not influence defendant's understanding or actions – BUILDING AND CONSTRUCTION – CONSUMER LAW – whether misleading and deceptive conduct defence available – where plaintiff did not influence defendant's understanding or actions.

Probuild Constructions (Aust) Pty Ltd v DDI Group Pty Ltd [2017] NSWCA 151
BUILDING AND CONSTRUCTION – subcontract for renovation works – payment claim under Building and Construction Industry Security of Payment Act 1999 (NSW) – where variations directed by principal after Date for Practical Completion – where Date of Practical Completion 114 days late – where principal sought to reduce payment claim to nil by way of set-off based on liquidated damages claim for delayed completion. ADMINISTRATIVE LAW – procedural fairness – where adjudicator rejected liquidated damages claim – whether adjudicator applied prevention principle – whether application of prevention principle denial of procedural fairness. Building and Construction Industry Security of Payment Act 1999 (NSW).

Pfeffer v Driftwood Constructions Pty Ltd [2017] NSWCATAP 133
Adequacy of reasons; variations; quantum meruit - homeowner applicants (the appellants in the current proceedings) sought compensation in the amount of $7,624.54 from the respondent builder (the respondent to the current appeal) arising out of the construction of the appellants' home at Casuarina in northern New South Wales which was completed in July 2016. In HB16/39875 the respondent (the builder) sought to recover compensation from the appellants (the homeowners) of $4,936.44 alleged to be owing to the builder under invoices after deleting credits and late payment fees.

Treloar Constructions Pty Limited v McMillan (No 2) [2017] NSWCA 146
COSTS – indemnity costs – application for order that costs at first instance be assessed on the indemnity basis – reliance on settlement offer made prior to trial as constituting "Calderbank offer" – no indication in settlement offer that non-acceptance would be relied on as a basis for seeking indemnity costs – settlement offer insufficient basis to make indemnity costs order COSTS – indemnity costs – offer of compromise in accordance with Uniform Civil Procedure Rules 2005 (NSW), r 20.26 made prior to appeal proceedings – no discretionary reason to order costs otherwise than as provided by r 42.14.

Owners Corporation Strata Plan 76841 v Ceerose Pty Ltd [2017] NSWCA 140
PROCEDURE – uniform civil procedure – amendment application – where proceeding transferred from District Court to Supreme Court – where by filing of Technology and Construction List Statement application made to amend pleading to add additional claim – whether sufficient prejudice to refuse amendment from loss of viable and realistic cross-claims against third parties – whether basis for imposing monetary limits on existing pleaded claims – no question of principle.

Aziz v Commissioner for Fair Trading [2017] NSWCATOD 95
ADMINISTRATIVE Law – Home Building Act - Nature of engagement – Lawful engagement – Requirement to be paid – Lawfully engaged –Time engaged -Residential building work.

P & N NSW Pty Ltd t/as Euro Solar v James [2017] NSWCATAP 138
Extension of time to lodge appeal – quotations as evidence.

Owners Corporation SP 82076 v Taricon Pty Ltd [2017] NSWCATCD 37
HOME BUILDING: Breach of statutory warranties – whether claim lodged within time – practical completion – issue of occupation certificate – estoppel – additional cause of action in contract.


Proclamations commencing Acts

Home Building Amendment (Compensation Reform) Act 2017 No 28
(2017-296) — published LW 30 June 2017.

Regulations and other miscellaneous instruments

Civil and Administrative Tribunal Amendment (Fees) Regulation 2017
(2017-303) — published LW 30 June 2017.

Civil Procedure Amendment (Fees) Regulation 2017
(2017-304) — published LW 30 June 2017.

Environmental Planning and Assessment Amendment (Fire Safety and Building Certification) Regulation 2017
(2017-307) — published LW 30 June 2017.

Bills passed by both Houses of Parliament – 23 June 2017

Home Building Amendment (Compensation Reform) Bill 2017

For the full text of Bills, and details on the passage of Bills, see Bills.

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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