In the media – National
Federal Government baulks at subcontractor protection on
Commonwealth projects
The Australian government has baulked at recommendations to afford
greater protections to subcontractors and suppliers on Commonwealth
government projects (10 January 2018).
More...
MBA: Rise in approvals points to positive year for
construction in 2018
Total dwelling approvals increased by 0.9% in seasonally adjusted
terms in November 2017, adding a tenth consecutive month of
positive growth in the approvals data (09 January 2018).
More...
Renewable energy to power Stawell Farm a
"world's first"
The Victorian State government has stated that it will build a
major new wind farm with battery storage in Western Victoria that
will power the expansion of Stawell's Nectar Farms (08 January
2018).
More...
Solar research gets $29.2m boost
Australian solar cell research has received a $29.2 million boost
from the Australian Renewable Energy Agency, and UNSW has 11 of the
22 projects (20 December 2017).
More...
Snowy 2.0 feasibility study released
The study released today states the project is technically
feasible, and estimated to cost between $3.8-4.5 billion. According
to the project timeline set out in the study, Snowy 2.0 could be
providing first power by late 2024 (20 December 2017).
More...
PM names new infrastructure minister
Deputy Prime Minister Barnaby Joyce has taken over the Australian
Government's Infrastructure and Transport portfolio after a
Federal cabinet reshuffle was announced by Prime Minister Malcolm
Turnbull. Mr Joyce will now be responsible for the Australian
Government's multi-billion-dollar inland rail project (19
December 2017).
More...
In the media – Victoria
Dumped Melbourne road re-appears on radar
The East West Link, a toll road controversially dumped by the
Victorian government at a cost of $1.2 billion, has re-emerged in a
list of possible future projects (11 January 2018).
More...
CPB Contractors wins $312 million Metro Tunnel rail
works
CPB Contractors, as part of the Rail Systems Alliance
(RSA), has been awarded works by the Victorian
Government in support of the $11 billion Metro Tunnel Project, the
state's biggest ever investment in public transport.
Construction as part of the RSA is expected to commence in 2018 and
be completed by 2026 (10 January 2018).
More...
New building fire safety laws come into
force
New laws to enhance fire safety in high-rise buildings will come
into force today, Minister for Better Regulation Matt Kean said.
Under the Building Products (Safety) Act 2017, the
government can ban building products – for example, external
wall cladding – from being used in unsafe ways (18 December
2017).
More...
In the media –New South Wales
Home buyers to be better protected by Australian-first
defect bond scheme
The Strata Building Bond and Inspections Scheme (the
Scheme), the first of its kind in Australia,
provides a structured process to rectify defects early in the
building lifecycle. Developers will now be required to lodge a
building bond, which is equal to two per cent of the contract price
with NSW Fair Trading. For more information about the Strata
Building Bonds and Inspection Scheme, go to www.fairtrading.nsw.gov.au
(01 January 2018).
More...
Update on the Fire Safety and External Wall Cladding
Taskforce
Six months on, the Cladding Taskforce, comprising representatives
from the Department of Finance, Services and Innovation
(DFSI), the NSW Data Analytics Centre
(DAC), the Department of Planning and Environment
(DPE), Fire & Rescue NSW
(FRNSW), the Office of Local Government
(OLG), Treasury and the Department of Premier and
Cabinet (DPC), has worked to address concerns over
fire safety risks arising from the use of aluminium cladding on
buildings in NSW (15 December 2017).
More...
In the media – Queensland
Sunshine Coast dam upgrade a step closer
Seqwater's $80 million upgrade of the Sunshine Coast's Six
Mile Creek Dam is a step closer to creating 100 local jobs after
gaining special "coordinated project" status (22 December
2017).
More...
Development application for Queen's Wharf Brisbane
approved
The $3 billion Queen's Wharf Brisbane integrated resort
development is now one step closer after Economic Development
Queensland this week approved Destination Brisbane Consortium's
Plan of Development application (21 December 2017).
More...
Published
Energy resources: a quick guide
Adrian Makeham-Kirchner; Parliament of Australia research
Papers: 18 December 2017
This quick guide provides a list of key Australian sources, and
some high level international resources, that assist in
understanding the Australian energy market. This guide does not
outline parliamentary resources, such as chamber records or
committee inquiries.
More...
Australian Bureau of Statistics
09 January 2017 -
Building Approvals, Australia, Nov 2017 (cat no. 8731.0).
Practice and courts
ABCB: Adoption of NCC 2016 Volume One Amendment 1 - Key dates19 January 2018 - The ABCB will release a preview of NCC 2016
Volume One Amendment 1 and the new Evidence of Suitability
Handbook.
12 March 2018 - NCC 2016 Volume One Amendment 1 is scheduled for
adoption by all States and Territories from 12 March 2018.
This amendment is the result of a
Building Ministers' direction to the ABCB to expedite
completing and adopting actions involving changes to the NCC from a
comprehensive package of measures for fire safety in high rise
buildings developed following the Lacrosse Apartments fire in
Melbourne.
Victoria
VBA: The importance of regularly maintaining your
balcony
The collapse of a balcony in Doncaster East on the weekend is a
tragic reminder of the importance of regularly maintaining your
balcony or deck (18 December 2017).
More...
New South Wales
Can NSW's green infrastructure policy stop canopy
cover decline?
NSW's government architect has released a draft policy that
aims to put green infrastructure at the heart of city-making.
Submissions on the draft plan are being accepted until 2
February 2018.
More...
Queensland
QBCC: Notifiable work resources
QBCC wants to increase awareness about Notifiable Work and have
developed some resources to help plumbers, home owners and real
estate agents (03 January 2018).
More...
Building Industry Fairness (Security of Payment) Bill
2017
The State Parliament has passed the Building Industry Fairness
(Security of Payment) Bill 2017. A two-stage adoption process
will see the requirement for mandatory PBAs rolled-out across
Queensland. An initial stage, to being on 1 January 2018, will see
the requirement applied to government building and construction
projects. A second stage, to begin 1 January 2019, will expand the
application of the mandatory PBA to all building and construction
projects over $1 million.
Cases
Ottoway Engineering Pty Ltd v Westpac Banking Corporation (No
3) [2017] FCA 1500
PRACTICE AND PROCEDURE – consideration of an application by
the applicant seeking orders to prevent the respondent from
enforcing a guarantee – where the applicant was the
subcontractor on a construction project – where the
applicant's bank provided a guarantee to the main
contractor's bank – whether the guarantee secures the
applicant's obligations to the main contractor under a separate
agreement – whether the guarantee secures the main
contractor's obligations to its bank.
BANKING AND FINANCIAL INSTITUTIONS – consideration of the
proper construction of the guarantee – where the guarantee is
in the nature of a performance bond or demand guarantee and not a
contract of suretyship – where the true nature of the
document is to be ascertained from its terms and conditions –
where the guarantee was provided by the applicant's bank to the
main contractor's bank – where there is no underlying
agreement between the applicant and the respondent – where
the guarantee places a primary obligation on the applicant's
bank to pay to the respondent the amount specified in a written
demand in accordance with the guarantee – where the
obligation under the guarantee is independent of the underlying
agreements between the applicant and the main contractor.
CONSUMER LAW – whether the respondent engaged in misleading
or deceptive or unconscionable conduct under the Australian
Consumer Law in procuring or enforcing the guarantee – where
the applicant sought to rely on what it claimed was a species of
unconscionable conduct that arises where the assertion or reliance
on a legal right is, in the circumstances, unconscionable –
where there is very limited scope for holding unconscionable
conduct in a case involving a performance bond or demand guarantee
– where the respondent had no obligation to make further
inquiries into the conduct of the main contractor before calling on
the guarantee – where the respondent was not bound to pursue
repayment of the amount secured by the guarantee through a term
deposit also held by the respondent – where the respondent
was entitled to take immediate action on the guarantee.
Hancock Prospecting Pty Ltd v Rinehart (No 2) [2017] FCAFC
208
ARBITRATION – stay of proceeding brought in Court in favour
of arbitration – making of orders. COSTS – appropriate
order for costs – whether costs of stay application below and
on appeal should follow the event – whether costs below and
on appeal should be payable forthwith. Commercial Arbitration
Act 2010 (NSW), s.8.
Quickway Constructions Pty Ltd v Electrical Energy Pty
Ltd [2017] NSWCA 337
Appeal allowed. BUILDING AND CONSTRUCTION – claims for
progress payments under Building and Construction Industry
Security of Payment Act 1999 – underlying contractual
debts assigned – whether payment claims valid – whether
adjudication determinations valid. Building and Construction
Industry Security of Payment Act 1999 (NSW), ss 4, 8(1), 13,
14, 15, 16, 17, 22, 25, 32. Conveyancing Act 1919 (NSW),
s.12; Supreme Court Act 1970 (NSW), s.101(2)(r).
CPB Contractors Pty Ltd v Rizzani De Eccher Australia
Pty Ltd [2017] NSWSC 1798
Dismiss the defendant's motion for a stay of the
proceedings.
CONTRACT – Interpretation – Whether "urgent"
in "urgent injunctive or declaratory relief" is to be
read distributively so as also to qualify "declaratory
relief"
ESTOPPEL – Equitable estoppels – Promissory estoppel
– Relief. Corporations Act 2001 (Cth), s 248G;
International Arbitration Act 1974 (Cth), s.7(2).
This is a dispute between parties to an unincorporated joint
venture for the undertaking of design and construction works (the
Works) in connection with the widening of the M4 motorway in
Sydney. The dispute relates to whether the defendant (Rizzani de
Eccher Australia Pty Ltd, to whom I will refer as
RdE) is bound to pay a Called Sum of $8.5m for the
purposes of the joint venture (the Called Sum
Dispute).
Nutek Constructions Pty Ltd v Slotwinski (No 2)
[2017] NSWSC 1814
Freezing order granted. CIVIL PROCEDURE – Interim
preservation – Freezing orders. Home Building Act
1989 (NSW); Uniform Civil Procedure Rules 2005 (NSW)
r.25.14.
Nutek Constructions Pty Ltd v Slotwinski [2017]
NSWSC 1795
Freezing order set aside. INJUNCTIONS – freezing order
obtained ex parte in aid of proceedings at NCAT – whether
material matters not disclosed – whether freezing order
should be set aside - Home Building Act 1989 (NSW).
Metricon Homes Pty Ltd v Great Lakes Insurance SE [2017]
VSC 749
INSURANCE – Builder's liability insurance –
Combined cover provided for products and public liability –
Insured entered into contract for design and construction of house
– House sustained damage arising from the Insured's
defective design and workmanship – Insured claimed indemnity
from Insurer for rectification costs, legal costs and settlement
sum paid to home owners – Insurer denied liability on the
basis that damage arose out of the Insured's contractual
breaches and not out of 'damage to property' of third
parties as required by insuring clause – Whether 'damage
to property' of third parties included house – James
Longley & Co Ltd v Forest Giles Ltd [2001] EWCA Civ 1242
distinguished – Held: Damage to property included damage to
house and insuring clause applied.
INSURANCE – Builder's liability insurance –
Exclusion clauses – Professional services exclusion –
Whether Insured rendered a professional service – Meaning of
professional service in exclusion – Insured's
responsibility for design included engineering design of concrete
slab and roof trusses – Insured rendered design services
through professional subcontractors – Design deficiencies
were a principal cause of damage to property – Definition of
Insured included subcontractors – Held: Professional services
exclusion applied – Held: Claim dismissed on this basis
– Chubb Insurance Company of Australia Ltd v
Robinson [2016] FCAFC 17; (2016) 239 FCR 300; Speno Rail
Maintenance Australia Pty Ltd v Hammersley Iron Pty Ltd [2000]
WASCA 408; (2000) 23 WAR 291 applied.
INSURANCE – Exclusion clauses – Inconsistency and
overlap between applicable exclusions – Insurer contended
that each exclusion clause operated independently of other
exclusion clauses and should be construed in isolation –
Inconsistency between overlapping exclusion clauses resolved by
applying ordinary contractual interpretation principles –
Held (by obiter dicta): Applicable exclusions can be given
congruent operation when read as a whole – Statements in D K
Derrington and R S Ashton, The Law of Liability Insurance
(LexisNexis Butterworths, 3rd ed, 2013) vol 2, 1834 [10–7]
not accepted – Result reached by applying ordinary
contractual interpretation principles – Re Media
Entertainment & Arts Alliance; ex parte Hoyts Corp Pty Ltd
[1993] HCA 40; (1993) 178 CLR 379, 386–7; Tsolon
Investments Pty Ltd v Waffle Pod Footing Systems NSW Pty Ltd
[2002] NSWCA 302 [36]; Darlington Futures Ltd v Delco Australia
Pty Ltd [1986] HCA 82; (1986) 161 CLR 500, 507–11
applied.
INSURANCE – Builder's liability insurance –
Products liability – Policy defined 'Insured's
Products' – Whether house constructed by builder fell
within definition – Exclusion clause relating to
'Insured's Products' – Held: house fell within
ordinary meaning of definition.
Dedert Corporation v United Dalby Bio-Refinery Pty Ltd
[2017] VSCA 368
BUILDING CONTRACT – Appeal – Respondent seeking
recourse in respect of claim for unliquidated damages for breach of
contract – Refusal to grant interlocutory injunction to
restrain respondent from exercising recourse to a commercial
guarantee – Construction of contract – Whether trial
judge erred in construing that contract did not contain restriction
on right to have recourse to the guarantee – Whether money
due and payable under the contract – Appeal allowed –
Contract precludes recourse to guarantee – RCR
O'Donnell Griffin Pty Ltd v Forge Group Power Pty Ltd (rec
and mgr appt) (in liq) [2016] QCA 214 applied - Bachmann Pty
Ltd v BHP Power New Zealand Limited [1998] VSCA 40; [1999] 1
VR 420 distinguished – Fletcher Construction Australia
Limited v Varnsdorf [1998] 3 VR 812 – distinguished.
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.