Australia: Residential Focus - 30 August 2017 - Part 2

Last Updated: 3 September 2017
Article by Christine Jones and Cameron Sheather

In the media

The building boom is coming to an end — and jobs are in the firing line Opinion
In a property downturn, the jobs most at risk will be those like furniture retailing and manufacturing, which rely on discretionary building-related spending (16 August 2017). More...

Have your say on the new home building insurance standards
SIRA is encouraging builders, homeowners, financial service providers, and other interested people to provide input on the proposed new home building compensation insurance standards in NSW. SIRA will independently regulate private providers, who may enter the scheme and offer home building compensation products in addition the NSW Government's insurance provider, icare HBCF, from 2018 (22 August 2017). More...

Inspectors target structural collapse after spate of incidents
WorkSafe inspectors will hone in on the risks of structural collapse during construction work as part of their latest safety blitz following a spate of incidents in recent months. As part of the state-wide campaign, inspectors will focus on buildings and associated structures under construction including walls and frames (21 August 2017). More...

NSW integrated design policy
The NSW government has adopted a state-wide policy that "establishes a baseline" of what is expected across all NSW projects in terms of design, and according to the Australian Institute of Architects it provides the rationale for a "good design" objective expected to be inserted into planning legislation later this year (21 August 2017). More...

SafeWork appeals for information about unlicensed tradies offering to remove asbestos in Western NSW
SafeWork NSW is appealing for information from the public about tradespeople reportedly offering to carry out unlicensed asbestos removal work at bushfire-damaged properties in western NSW. In NSW, all asbestos removal work over 10 square metres must be undertaken by a licensed asbestos removalist (18 August 2017). More...


ACI Construction Briefs
A fortnightly communication highlighting key updates related to Australia's construction industry (15 August 2017). More...

Practice and courts

ABCB Consultations
ABCB is currently seeking comments on the following proposed changes:

NCC 2016 Volume One Amendment 1 Public Comment Draft
(Comments close on 10 September 2017).
The NCC changes are the result of a Building Ministers' directive to expedite completing and adopting actions from a comprehensive package of measures for fire safety in high rise buildings, developed following the Lacrosse Apartments fire.

NCC Governing Requirements
(Comments close on 3 September 2017).

ABCB: NCC readability
Work is underway to improve how you read the NCC. A major part of this work is a consistent set of NCC Governing Requirements. This includes aligning Section A of Volumes One and Three, and Section 1 of Volume Two. Feedback on the Proposed NCC Governing Requirements is now open until 3 September 2017.

NSW Government: Have your say on the new home building insurance standards
SIRA is encouraging builders, homeowners, financial service providers, and other interested people to provide input on the proposed new home building compensation insurance standards in NSW. To have your say and find out more, visit the SIRA website at (18 August 2017).

NSW BPB: NCC consultation ends 10 September: fire safety in high-rise buildings
The Australian Building Codes Board is exhibiting proposed changes to the National Construction Code (NCC) relating to fire safety in high-rise buildings (23 August 2017). More...

NSW BPB: Fire safety: legislative amendments from 1 October
From 1 October 2017 there will be stricter requirements for the design, approval, inspection and maintenance of fire safety systems in complex buildings. The improved design, installation and maintenance of building fire safety systems is a NSW Government priority being achieved through amendments to the EP&A Regulation. More....

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. More...


Mt Lewis Estate Pty Ltd v Metricon Homes Pty Ltd [2017] NSWSC 1121
BUILDING AND CONSTRUCTION - Building and Construction Industry (Security of Payment) Act 1999 (NSW) (the Act) – ss 13, 21(3), 29, 31 – Building and Construction Industry (Security of Payment) Regulation 2008 (NSW) (the Regulation) – whether the defendant's payment claim dated 16 December 2016 complied with the requirements of ss 13(7) and (9) as being accompanied by a compliant supporting statement – whether the supporting statement which accompanied the claim complied with the requirements of ss 13(7) and (9) and the Regulation – HELD: supporting statement did not comply because the declaration contained in it was made on a date earlier than the payment claim identified as the one it purported to support – HELD: the purported payment claim did not effectively invoke the procedures under the Act – HELD: the adjudication determination of the second defendant void – where notice of acceptance of appointment under s 21(3) was actually received by the plaintiff but in a manner not expressly provided for by s 31 – HELD: actual receipt was effective notification under s 21(3)(a) – HELD: adjudication determination out of time under s 21(3)(a) but not void – under s 29(4) adjudicator not entitled to be paid any fees and expenses.

Owners Corporation SP 79417 v Trajcevski (No.2) [2017] NSWCATAP 173
The Owners – Strata Plan No. 79417 must pay the respondents' costs of and incidental to these appeal proceedings such costs if not agreed to be assessed on the basis set out in the legal costs legislation as defined in section 3A of the Legal Profession Uniform Law Application Act 2014.
Indemnity costs – whether the applicant had prospects of success at the relevant time.
Civil and Administrative Tribunal Act 2013; Civil and Administrative Tribunal Rules 2014; Home Building Act 1989; Legal Profession Uniform Law Application Act 2014.
The proceedings at first instance were brought under the Home Building Act 1989. Pursuant to section 3 of Schedule 4 of the Act, proceedings under the Home Building Act are allocated to the Commercial and Consumer Division of the Tribunal. The amount claimed by the appellant in the proceedings at first instance was $400,000.00.
By reason of the matters stated in the preceding paragraph, Rule 38 applied to the proceedings at first instance. The provisions of Rule 38 are different to the content of section 60 of the Act. By reason of this fact, pursuant to Rule 38A(2) we must apply Rule 38 when deciding whether to award costs in relation to this Appeal.

Cooper v Commissioner for Fair Trading [2017] NSWCATAD 242
ADMINISTRATIVE REVIEW - Home Building Act 1989 - Application for qualified supervisor certificate – application of Instrument – Whether the Tribunal is satisfied that the applicant has the requisite qualifications and experience to be a supervisor.

Field v Commissioner for Fair Trading [2017] NSWCATOD 118
ADMINISTRATIVE REVIEW – Home Building Act – supervisor's certificate – qualifications – whether qualifications directly relate to the work to be performed - Home Building Act 1989; Home Building Regulation 2004; Home Building Regulation 2014.

McIvor v Commissioner for Fair Trading [2017] NSWCATAD 258
ADMINISTRATIVE REVIEW - Home Building Act 1989 - individual contractor licence – fit and proper – convicted of criminal offences – currently on parole – no evidence of rehabilitation – community standards.

Barber v Wilson [2017] NSWCATCD 49
Building Claim – breach of statutory warranties – claim by successor in title to developer.

Bliss v Durran t/as Canberra Sheds and Outdoor Storage; Durran t/as Canberra Sheds and Outdoor Storage v Bliss [2017] NSWCATCD 50

The Owners – Strata Plan 72739 v Allianz Australia Insurance Limited [2017] NSWSC 1118
CIVIL PROCEDURE — Admissions — Withdrawal – Civil Procedure Act NSW (2005) ss 56, 58, 64 — where no evidence to explain why admissions were made — where applicant will suffer prejudice if the application is refused and respondent with suffer prejudice if the application is granted.

Masterglass Facades Pty Ltd v Pollak [2017] NSWCATCD 45
Sections 10 and 94(1A) Home Building Act 1989 – just and equitable - quantum meruit – determination of amount – diminution in value of work performed – temporary disconformity.

Limberis v Commissioner for Fair Trading [2017] NSWCATOD 128
ADMINISTRATIVE REVIEW – Home Building – Application for contractor licence – Qualification and experience requirements set out in an instrument issued by the respondent – Whether making of a binding instrument is authorised by the legislation – Finding that the instrument is a policy – Whether the applicant meets the terms of the instrument, read as a policy – Whether the Tribunal is satisfied that the applicant has the requisite experience to be a builder – Applicant cannot verify their own experience.

The Owners – Strata Plan 84741 v Nazero Constructions Pty Ltd [2017] NSWSC 1134
BUILDING AND CONSTRUCTION – whether quantification of defect rectification costs reasonable – whether plaintiff entitled to pre-judgment interest on quantification of defect rectification costs.
PRACTICE AND PROCEDURE – whether second defendant should have leave under UCPR r 31.28(3) to rely on expert report served by former cross-defendant – whether exceptional circumstances shown.



Regulations and other miscellaneous instruments

Architects Regulation 2017
(2017-431) — published LW 25 August 2017.
Civil Procedure Regulation 2017
(2017-435) — published LW 25 August 2017.
Protection of the Environment Operations (Noise Control) Regulation 2017
(2017-449) — published LW 25 August 2017.

Bills assented to

Environmental Planning and Assessment Amendment (Staged Development Applications) Act 2017 No 38 — Assented to 14 August 2017.

Environmental Planning and Assessment and Electoral Legislation Amendment (Planning Panels and Enforcement) Act 2017 No 39 — Assented to 14 August 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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