Australia: Construction & infrastructure news – 2 August 2017

Last Updated: 6 August 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, July 2017

In the media – National

New framework to reduce infrastructure investment risk
A new framework designed to help the Australian and New Zealand governments reduce risk when investing in critical infrastructure has been released, following the Government's commitment to significantly invest in major infrastructure projects over the next four years. The ICMS Coalition, comprising 45 professional bodies including RICS, has launched ICMS, a benchmarking and reporting framework for international cost classification, reporting and comparison (28 July 2017). More...

CFMEU penalised $130,000 for industrial action at six Brisbane projects
The CFMEU and three of its officials have been penalised $130,000 for industrial action which shut down work at multiple construction projects across Brisbane, including Ronald McDonald House and the Commonwealth Games Velodrome site (28 July 2017). More...

Andrew Forrest just lost a major royalties fight over native title involving Fortescue's Solomon mine
The Federal Court has upheld exclusive rights to the Yindjibandi people. The decision finalises a 14-year-old claim over the region. The Yindjibarndi Aboriginal Corporation (YAC) was granted native title over the area where the mine is located in 2003 and was subsequently seeking exclusive rights (20 July 2017). More...

In the media – New South Wales

Australian-first for Darlington Upgrade Project as local business benefits
Two new bridges for the Darlington Upgrade Project will be constructed 'off-site' and moved into position, in an Australian-first for a civil engineering (27 July 2017). More...

First breakthrough on new M4 tunnels
New South Wales Premier Berejiklian, Minister for WestConnex Stuart Ayres and Federal Minister for Urban Infrastructure Paul Fletcher witnessed the breakthrough 40 metres below ground, marking 70 per cent completion of mainline tunnelling. The New M4 tunnels will connect to the widened M4 and extend it underground (26 July 2017). More...

In the media – Queensland

Townsville's commercial buildings to be audited for safety
In the wake of the Grenfell fire disaster in London, the Queensland Government will perform building audits to find out whether aluminium composite panels on the outside of commercial and public buildings meet Australian Building Code requirements (27 July 2017). More...

Lindeman Island resort revival on track
Queensland Government: Lindeman Island's revival is a step closer with the release of the draft environmental impact statement (EIS) for the $583 million redevelopment and expansion of the island's resort. State Development Minister Dr Anthony Lynham said the draft environmental impact statement for the Whitsunday islands project was available for public consultation for six weeks (28 July 2017). More...

Better roads means better access for the Cape York Region
Road sealing contract awarded to North Queensland Civil Engineering Contracting Sealing works will soon start on 9.2 kilometres of road from Myall Creek to Rio Boundary as part of the $260.5 million Cape York Region Package (25 July 2017). More...

Roads and jobs bonanza - Cairns wins with Smithfield solution
Queensland Government: Construction of a new bypass road at Smithfield will start next year with the Palaszczuk Government today announcing $152 million in funding for the long-awaited project (25 July 2017). More...

Combustible cladding found on Brisbane hospital
The Queensland Government confirms cladding on Brisbane's Princess Alexandra Hospital is combustible, after tests were conducted in the wake of London's Grenfell Tower inferno tragedy (19 July 2017). More...

Blueprint lays out future for North West Minerals Province
The Palaszczuk Government has put in place a blueprint to drive the next wave of resource development and new industry in Queensland's North West Minerals Province (19 July 2017). More...

In the media – Victoria

Melbourne Metro Tunnel to see creation of 7,000 jobs
In a news release earlier this week, the Andrews Labor Government is creating thousands of local jobs and using Victorian businesses to build the biggest public transport project in Victorian history – the Metro Tunnel (28 July 2017). More...

CPB Contractors preferred proponent for Metro Tunnel Rail Systems
CPB Contractors has been selected by the Victorian Government as the preferred proponent, with Bombardier Transportation, to deliver the Metro Tunnel Project Rail Systems Alliance (RSA) with the Melbourne Metro Rail Authority (MMRA) and Metro Trains Melbourne (MTM) (28 July 2017). More...

Ezy Lite Pty Ltd and Adnan Dennaoui - Court outcome
A building cladding company and its director have been convicted and fined a total of $70,000 after pleading guilty to making false and misleading representations about the fire ratings of some of its products (21 July 2017). More...

Published

Building and Construction Law Journal update: Vol 33 Pt 2 July 2017
The latest Part of the Building and Construction Law Journal includes the following articles: "Alliancing in Australia: Commercial Advantage at the Expense of Legal Certainty?" – Andrew Stephenson and Brendan Molck; "Global Claim – Global Confusion?" – Andrew D Archer. Also in this Part is an Editorial; and a Report on the following case: Façade Treatment Engineering Pty Ltd (in liq) v Brookfield Multiplex Constructions Pty Ltd.

Practice and courts

ABCC Code for the Tendering and Performance of Building Work 2016
The Code for the Tendering and Performance of Building Work 2016 applies to companies who wish to undertake Commonwealth-funded building work. Building industry participants covered by agreements made prior 2 December 2016 have until 29 November 2018 to ensure their agreements are Code compliant.

New South Wales

Fire Safety Regulation Reform
The Environmental Planning Assessment Amendment (Fire Safety and Building Certification) Regulation 2017 has been published and will come into effect on 1 October 2017. These are important reforms that will improve fire safety in new and existing buildings. The amendments introduce new requirements affecting the design, approval, construction and maintenance of fire safety measures (06 July 2017). More...

New South Wales 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. More...

Cases

BM Sydney Building Materials Pty Ltd v AWT Building Group (AUST) Pty Ltd; BM Sydney Building Materials Pty Ltd v AWT Building Pty Ltd [2017] NSWCA 177
APPEAL - defendants admitted liability on claim for debt but relied on estoppel based on oral agreement - primary judge accepted defendants' evidence and made adverse credit-based findings against plaintiff's witness - whether primary judge failed to have regard to contemporaneous documents - whether primary judge misapprehended evidence said to corroborate oral agreement - whether this Court could give judgment in favour of plaintiff - appeal allowed and retrial ordered.

Delta Pty Ltd v Team Rock Anchors Pty Ltd [2017] QSC 115
INSURANCE – THE POLICY – THE INSURED – where the plaintiff sub-contracted with the first defendant – where the first defendant breached that contract and caused loss to the plaintiff – where the first defendant had an insurance policy with the third defendant – where the insurance policy defined 'insured' as the first defendant and its principals and subcontractors not otherwise insured – whether the plaintiff was insured by the first defendant's insurance policy with the third defendant.
INSURANCE – PUBLIC LIABILITY INSURANCE – GENERALLY – CLAIM FOR INDEMNITY AS INSURED – where the plaintiff claimed against the third defendant as an insured under the policy – where the policy required the plaintiff to establish that the plaintiff was legally liable to pay compensation to the contractor for property loss – where the first defendant's breach meant that a retaining wall moved an unacceptable amount – whether the plaintiff became liable to pay compensation for property loss – where the plaintiff claimed that a shortfall in payment from the contractor to the plaintiff amounted to the plaintiff paying the contractor compensation – whether the contractor suffered property loss as defined in the policy – whether a shortfall in payment amounted to a payment of compensation – whether the plaintiff's losses were indemnified under the insurance policy.
INSURANCE – THE POLICY – OTHER MATTERS – ASSIGNMENT – where the plaintiff settled its claim against the first defendant – where the settlement deed assigned the first defendant's claim against the third defendant to the plaintiff – whether assignment valid.
INSURANCE – PUBLIC LIABILITY INSURANCE – GENERALLY – CLAIM FOR INDEMNITY AS ASSIGNEE – where the plaintiff prosecuted the claims assigned to it by the first defendant against the third defendant – where the policy required the plaintiff to establish that the first defendant was legally liable to pay compensation to the plaintiff for property loss – whether the settlement between the plaintiff and first defendant established legal liability of the first defendant to the plaintiff – whether the settlement between the plaintiff and first defendant was reasonable – whether the plaintiff suffered property loss – whether the plaintiff's losses were indemnified under the insurance policy - contract with the plaintiff, Delta, to undertake excavation works on the site.

Santos Ltd v Fluor Australia Pty Ltd [2017] QSC 153
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – DISCLOSING NO REASONABLE CAUSE OF ACTION OR DEFENCE – where the defendant applies to strike out paragraphs of the plaintiff's claim – where the relevant parts of the statement of claim concern breaches of subcontracts the defendant entered into to carry out the work under the contract - whether paragraphs of the statement of claim fail to disclose a reasonable cause of action - whether the statement of claim identifies "global" or "total costs" claims – whether there is a "global" or "total costs claim" – whether a "global" or "total costs" claim is permissible in the circumstances – whether it is sufficient for a plaintiff to plead the material facts which are said to give rise to a causal connection.
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – EMBARRASSING, TENDENCY TO CAUSE PREJUDICE, SCANDALOUS, UNNECESSARY ETC OR CAUSING DELAY IN PROCEEDINGS – where the defendant applies to strike out paragraphs of the plaintiff's claim - whether paragraphs of the statement of claim do not sufficiently inform the defendant of the case to be met – whether the statement of claim would impose an unreasonable or unfair burden on the defendant that would prejudice, embarrass or delay a fair trial – whether the plaintiff sufficiently pleaded a causal connection - whether the plaintiff sufficiently pleads the causal connection between the breaches and amount claimed.

289 Grange Road Developments Pty Ltd & Anor v Dalle Projects Pty Ltd [2017] VSC 409
CORPORATIONS – Corporations Act 2001 (Cth) – Statutory demand – Application pursuant to s 459G to set aside statutory demand – Building contracts – Payment claim – Payment certificate – Debt due and payable for the purposes of the statutory demand – Relevance of the Building and Construction Industry Security of Payment Act 2002 (Vic) – Whether debt was required to be due and payable for the periods set out in s 459F or whether sufficient that due and payable at the date of service of statutory demand.

Beton Pumping Group Pty Ltd v Zoomlion Capital (Australia) Pty Ltd (No 2) [2017] VSCA 185
PRACTICE AND PROCEDURE – Application for continuation of stay of order pending special leave application – Whether substantial prospect that special leave to appeal will be granted – Balance of convenience – Where applicant has not questioned validity of security granted by it or events of default under security entitling mortgagee to exercise right of possession – Where applicant unable to pay money into court – Application dismissed.

St Hilliers Property Pty Limited v ACT Projects Pty Ltd and Simon Wilson [2017] ACTSC 177
CONTRACTS – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – Building, Engineering And Related Contracts – Remuneration – statutory regulation of entitlement to and recovery of progress payments – Building and Construction Industry (Security of Payment) Act 2009 (ACT) – payment claims – whether a payment claim had been served too late – whether a 'reference date' was a necessary prerequisite to its service, and was absent at the time of service – whether an adjudicator had delegated the preparation of his adjudication by having someone else prepare it.
ADMINISTRATIVE LAW – JUDICIAL REVIEW – Application for leave to appeal from adjudication decision under the Building and Construction Industry (Security of Payment) Act 2009 (ACT) – Whether an adjudicator's finding of waiver had been an error at law.

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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