Australia: Residential Focus - 13 September 2017: Part 2

Last Updated: 15 September 2017
Article by Christine Jones and Cameron Sheather

In the media

PCA: Property Industry Support for Housing Affordability Package
The housing affordability measures before the Parliament are sensible and prudent measures that will help ease Australians entering the housing market. The First Home Saver Super Scheme is a non-inflationary measure that helps people bridge the deposit gap. Importantly, it does not touch the baseline superannuation contributed by members (07 September 2017). More...

Senate Moves to Ban Polyethylene Cladding in Australia
Aluminium cladding containing a flammable polyethylene (PE) core has no place on any building in Australia and should be banned outright, the Senate Committee looking into non-compliant building products in Australia said (07 September 2017). More...

Grenfell-style flammable cladding should be banned, Senate committee says
A Senate committee recommends Australia ban the importation, sale and use of the type of cladding that led to London's deadly Grenfell tower tragedy, prompting a dissenting report from Coalition members (07 September 2017). More...

Senate Inquiry into Non-Conforming Building Products
The Property Council of Australia is considering the comprehensive report by the Senate Committee into Non-Conforming Building Products (NCBPs) and the broader issue of fire safety. Mostly, PE cladding has been used in ways that do not compromise fire safety (eg in signage or decorative features), so to ban an entire product is a big call (07 September 2017). More...

MBA: Response to 4 Corners Report on cladding
Master Builders welcomes the coordinated effort being made through the Building Ministers Forum to improve regulatory settings, including its expert review of current compliance and enforcement arrangements. Some of the responses by government so far include draft amendments to the National Construction Code around fire safety and the online information hub established by the Australian Building Codes Board (05 September 2017). More...

Australian high-rises swathed in flammable cladding despite suppliers knowing of risks
More than a decade before the deadly Grenfell tower fire in London, Australian suppliers of aluminium composite cladding knew the product they were selling was highly flammable (04 September 2017). More...

Industry and government working together on fire safety
Victoria, NSW, South Australia and Western Australia are undertaking reviews of large buildings. The Queensland Government has passed legislation addressing NCBPs last month and the NSW Government has established an inter-agency Fire Safety and External Wall Cladding Taskforce (04 September 2017). More...

Construction jumps but units drag on building approvals
A big one-off item appears to have put a rocket under construction work completed in the June quarter, while the apartment sector looks to be running out of puff (30 August 2017) More...

Experts appointed to review Australia's building and construction safety issues
In a move to bolster safety standards in the construction industry, the Building Ministers' Forum (BMF) has announced that that Professor Peter Shergold AC and Bronwyn Weir have been commissioned to assess compliance and enforcement problems within the building and construction systems across the country that are affecting the implementation of the National Construction Code (NCC) (29 August 2017). More...

Amendment to National Construction Code
Following a Building Ministers' Direction to the Australian Building Codes Board, the National Construction Code will be amended out-of-cycle to adopt a package of measures for fire safety in high rise buildings.
The proposed amendments are now available for public comment. The key aspects of the amendments cover: A new Verification Method that adopts the external wall testing standard, AS 5113; Improving the evidence of suitability provisions; Clarifying the DTS Provisions relating to the fire performance of external walls and Referencing an updated sprinkler standard, AS 2118.
The Property Council is seeking industry feedback on the proposed amendment to inform its submission. Individual submissions can also be made directly to the ABCB via its" >consultation page. The opportunity for public comments closes on 10 September 2017.

ABCB Consultations
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.


Building System Circulars: Building fire safety regulation new and changed requirements
The purpose of this circular is to inform certifiers, councils, industry practitioners, and affected building owners of new and changed fire safety regulation requirements that will soon apply in NSW (from 1 October 2017) (28 August 2017) BS 17-002.

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. Fire safety: legislative amendments from 1 October.


Ku-ring-gai Council v Chan [2017] NSWCA 226
Appeal allowed. TORTS – negligence – duty of care – pure economic loss – reliance – vulnerability –where council as principal certifying authority retained by owner-builder issued occupation certificate under Environmental Planning and Assessment Act 1979 (NSW), s 109D(1)(c) in relation to structurally and non-structurally defective building works on residential property – where subsequent purchaser of property enjoyed benefit of statutory warranties against owner-builder under Home Building Act 1989 (NSW), s 18B – whether council owed subsequent purchaser duty to take reasonable care in issuing occupation certificate – where owner-builder agreed with council that he was responsible for compliance with laws and approvals – whether council liable to indemnify owner-builder due to careless issue of occupation certificate
Building Professionals Act 2005 (NSW) ss 63, 65; Building Professionals Regulation 2007 (NSW), Pt 4, divs 2, 3
Ku-ring-gai Council v Chan [2017] NSWCA 226

BNT Constructions Pty Ltd v Allen [2017] NSWCATAP 186
Appeal allowed. The respondents to pay the appellant's costs of the appeal on the ordinary basis.
APPEAL – Costs – error of law – failure to consider relevant consideration – re-exercise of discretion – apportionment of costs – no question of principle
Home Building Act 1989 (NSW), s 48MA; Civil and Administrative Tribunal Act 2013 (No 2) (NSW), ss 36, 50(2), 60, 81 BNT Constructions Pty Ltd v Allen [2017] NSWCATAP 186

Deacon v National Strategic Constructions Pty Ltd; National Strategic Constructions Pty Ltd v Deacon [2017] NSWCATAP 185
APPEAL – Assessment of damages – principle in Bellgrove v Elldridge – Assessment of consequential loss – conventional estoppel – waiver
Civil and Administrative Tribunal Act 2013; Civil and Administrative Tribunal Rules 2014; Home Building Act 1989
Deacon v National Strategic Constructions Pty Ltd; National Strategic Constructions Pty Ltd v Deacon [2017] NSWCATAP 185

Hoque v ARZ Building & Constructions Pty Ltd [2017] NSWCATAP 182
1. Each party is to pay its own costs of 13 May 2016.
2. Otherwise, the respondent is to pay the appellants' costs of the appeal. In this matter the Appeal Panel delivered its decision on 29 March 2017 cited as [2017] NSWCATAP 71. The appeal was allowed. The decisions of the Tribunal were set aside and the matters were remitted to the Commercial and Consumer Division of the Tribunal for reconsideration according to law. The parties were ordered to confer as to the costs of the appeal.
Hoque v ARZ Building & Constructions Pty Ltd [2017] NSWCATAP 182

The Owners – Strata Plan 84741 v Nazero Constructions Pty Ltd [2017] NSWSC 1134
Defect rectification costs quantified; parties to calculate final figure due from second defendant to plaintiff 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 Home Building Act 1989 (NSW). More...

Stevanovski v CLK Plumbing Pty Ltd [2017] NSWCATAP 180
APPEAL – Procedural fairness – case determined on an issue not addressed at the hearing or raised with the parties. More...

Madikian v Chief Commissioner of State Revenue [2017] NSWCATAD 263
First home owner grant; residency requirement; interest on unpaid duty; penalty tax; costs. More...

Cuaresma v Delta Constructions Australia Pty Ltd and Nasr [2017] NSWCATCD 67
Residential building work, defective work, whether first and/or second respondent liable for defects, agency of apparent or ostensible authority. More...

Langov v Denkov; Denkov v Langov [2017] NSWCATCD 69
BREACH OF STATUTORY WARRANTIES - abandonment of contract – damages for defective work – findings where expert report unopposed. More...

Subedi v AA Concrete Pty Ltd [2017] NSWCATCD 54
Building claim – breach of contract – failure to complete works and delay to works – contract terminated – damages for breach. More...

Owners Corporation SP 82076 v Taricon Pty Ltd [2017] NSWCATCD 61
COSTS: Application dismissed - Jurisdictional issue – Application by respondent for costs. More...

Shaun Reynolds Builder Pty Ltd v Rawlings [2017] NSWCATCD 74
Home Building-Repudiation of contract-Enforceability of written contract-Quantum meruit. More...


Regulations and other miscellaneous instruments

Building and Construction Industry Long Service Payments Regulation 2017 (2017-476) — published LW 1 September 2017
Plumbing and Drainage Regulation 2017 (2017-482) — published LW 1 September 2017
Surveying and Spatial Information Regulation 2017 (2017-486) — published LW 1 September 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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