Australia: Residential Focus - 17 January 2018: Part 2

Last Updated: 19 January 2018
Article by Christine Jones, Stefanie Dunnicliff and Divya Chaddha
Most Read Contributor in Australia, August 2018

In the media

New ABCC commissioner appointed
The Australian Building and Construction Commission (ABCC) has appointed a new head following the resignation of Nigel Hadgkiss in September 2017 after breaching the Fair Work Act. Stephen McBurney will begin a five-year term as commissioner from 6 February 2018 (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...

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...

New home building scheme comes into effect
Changes to the NSW Home Building Compensation (HBC) scheme commence today that will enable private insurers to enter the market and improve protections for homeowners against incomplete and defective work. All builders are required to take out cover under the HBC scheme for residential building projects costing over $20,000. Each year on average, the scheme accepts liability for 613 claims, and pays out $82.8 million. For further information visit www.sira.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...

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 dates

19 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.

Registration is now open for the 2018 NCC Information Seminars
In February and March 2018, a representative from the ABCB will be coming to a capital city near you. Don't miss out on your opportunity to hear about the following BCA initiatives: NCC 2016 Volume One amendment addressing fire safety; NCC 2019 public comment draft; The improved CodeMark scheme; and The practical development and assessment of Performance Solutions. More...

NSW BPB December newsletter
The 'Cert Alert' newsletter is a regular digest of work by the Board, legislative updates, events, training and consultation opportunities (21 December 2017). More...

NSW BPB: Certification data reporting – software providers urged to get ready
Providers of specialised building certification software can start updating their products now to ensure their clients can meet the new data reporting requirements being introduced for NSW councils and accredited certifiers (21 December 2017). More...

NSW BPB: Data reporting – certifiers and councils should start preparing now
To strengthen certification and building regulation in NSW, local councils and A1-A3 certifiers will soon be required to report certain data on building certification to the NSW Government (21 December 2017). More...

NSW BPB: New process for development approvals in mine subsidence districts
Principal certifying authorities (PCAs) will soon be able to approve certain developments in mine subsidence districts (20 December 2017). More...

NSW BPB: Strata building bond scheme commenced 1 January 2018
The new strata building bond and inspection scheme commenced on 1 January 2018. More...

Cases

Arambewela v Castle Projects Pty Ltd [2018] NSWCATAP 14
(1) The application for costs is refused. (2) Each party is to pay their own costs.
COSTS — exercise of the discretion to award costs under r 38(2) of the Civil and Administrative Tribunal Rules 2014 where proceedings are discontinued.
Access to Neighbouring Land Act 2000 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW); Home Building Act 1989 (NSW); Uniform Civil Procedure Rules 2005 (NSW).

Sam Komadina t/as We Paint Pools v Kelleher [2018] NSWCATAP 3
(1) Leave to appeal refused. (2) Appeal dismissed. (3) The stay of the operation of order 2 made on 2 August 2017 in HB 17/15866 is lifted.
APPEAL: Swimming pool repair – orders made in absence of contractor – whether denial of procedural fairness – whether leave to appeal should be granted.

Leung v Alexakis [2018] NSWCATAP 11
(1) The appeal is allowed in part. Home Building Act 1989 – s.48MA - preferred outcome principle, applicability to work done by holder of owner-builder permit. Owner-builder permit - Authority conferred, liability to successor in title for breach of statutory warranties, work to which the statutory warranties apply. Discretion - failure to exercise, effect of preferred outcome principle in s.48MA on exercise of discretion. Section 48O - nature and extent of order making power under Home Building Act, effect of s.48O(2) permitting order even if not sought by applicant.
Civil and Administrative Tribunal Act 2013; Civil and Administrative Tribunal Rules 2014; Fair Trading Act 1987; Home Building Act 1989; Home Building Amendment Act 2014; Home Building Regulation 2004; Home Building Regulation 2014; Interpretation Act 1987; Plumbing and Drainage Act 2011; Work Health and Safety Regulation 2011.

Denkov v Langov [2018] NSWCATAP 9
Appeal - application for leave to appeal – no question of principle. Civil and Administrative Tribunal Act 2013; Civil and Administrative Tribunal Rules 2014 (NSW); Home Building Act 1989.

N & T Buildings Pty Ltd v Ball [2017] NSWCATAP 234
APPEAL – expert evidence – exercise of discretion – appellant unrepresented at hearing. Civil and Administrative Tribunal Act 2013; Civil and Administrative Tribunal Rules 2014; Home Building Act 1989.

Younan v Commissioner for Fair Trading [2018] NSWCATOD 9
HOME BUILDING – disciplinary action – whether company of which the applicant was a director failed, without reasonable cause, to comply with a rectification order - whether applicant guilty of improper conduct – what penalty should apply – COSTS – whether special circumstances – respondent acted without jurisdiction in relation to the issuing of a rectification order.

Champion Homes Sales Pty Ltd v Commissioner for Fair Trading [2018] NSWCATAP 18
Disciplinary proceedings - "parity principle", meaning and applicability, different penalties for licensed contractor company, directors and supervisor. Discretion - error of law, circumstances in which Appeal Panel can intervene. Civil and Administrative Tribunal Act 2013; Home Building Act 1989.

Scharer v Giro Construction Group Pty Ltd (in Liq) (Receiver and Manager Appointed) [2017] NSWSC 1568
APPEAL – civil – appeal from the NSW Civil and Administrative Appeal Panel – Appointment of Administrator – subsequent voluntary liquidation – whether Appeal Panel omitted to deal with issue of Tribunal's lack of jurisdiction per s.500 – whether the Appeal Panel erred in law in concluding that it was not necessary to determine whether s.440D of the Corporations Act applied to proceedings in the Tribunal – whether the Appeal Panel erred in law in concluding the consent provided by the Administrator was valid for the purposes of s.440D – whether the Appeal Panel erred in law refusing otherwise to grant leave to appeal from a costs order made in circumstances where the Senor Member was proceeding under a material error of fact – Appeal Panel erred in law in failing to deal with "jurisdiction question" raised regarding s.500 – in effect, the Appeal Panel erroneously found the Tribunal had jurisdiction – failure to determine application of s.440D – limited or qualified consent given by the Administrator in Tribunal proceedings invalid for the purposes of s.440D – leave to appeal granted.

Azzi v Phan [2017] NSWCATAP 215
DISMISSAL OF APPEAL – withdrawal of appeal – costs – no question of principle.
Civil and Administrative Tribunal Act 2013 No 2 (NSW) – ss 55 and 60; Civil and Administrative Tribunal Rules 2014 – r 38A; Home Building Act 1989 (NSW).

Gassman v Peck [2017] NSWCATCD 90
Home Building – preferred outcome – s48MA – Breach of Statutory Warranty.
Civil and Administrative Tribunal Act 2013; Home Building Act 1989 (NSW); Home Building Amendment Act 2014.

Lal v Jardak Construction Pty Ltd [2017] NSWCATAP 224
Home Building – duty to self-represented litigant – costs offer better than result – conduct of proceedings.
Civil and Administrative Tribunal Act 2013 (NSW); Home Building Act 1989 (NSW).

Ralan (Culworth) Pty Ltd v Owners Corporation SP 83405 [2017] NSWCATAP 223
Home Building – late expert evidence taking claim beyond Tribunal jurisdictional limit – exercise of procedural discretion.
Civil and Administrative Tribunal Act 2013 (NSW); Home Building Act 1989 (NSW).

Robert Huang and Others v Dong Chen and Anor [2017] NSWSC 1699
CONTRACTS – general contractual principles – intention to enter legally binding relations.
CONTRACTS – general contractual principles – breach and defences to action for breach – non est factum.
EQUITY – equitable remedies – specific performance.

McPherson v Mace [2017] NSWCATAP 227
Calderbank offers, whether rejection was unreasonable – costs issues – no question of principle. Civil and Administrative Tribunal Act 2013; Civil and Administrative Tribunal Rules 2014; Home Building Act 1989; Legal Profession Uniform Law Application Act 2014.

Rockwall Constructions Pty Ltd v Nayak [2017] NSWCATAP 226
APPEAL – jurisdiction – right to hearing on the merits – mitigation of loss.
Civil and Administrative Tribunal Act 2013 ss 36, 38, 55, 80, cl 10 Sch 4, cl 12 Sch 4; Civil and Administrative Tribunal Rules 2014 cl 38A; Home Building Act 1989 ss 48L, 48K; Civil Procedure Act 2005 s 91; Legal Profession Uniform Law Application Act 2014.

My Stone Tiles Pty Ltd v Ell; My Stone Tiles Pty Ltd v Allen [2018] NSWCATAP 7
(1) The application for leave to appeal is refused. (2) The Appeal is dismissed. Australian Consumer Law - Guarantee as to acceptable quality and fitness for disclosed purpose.

White v Sunrise Pools Australia Pty Ltd [2017] NSWCATAP 236
(1) The appellant is to pay the respondent's costs of this appeal as agreed or 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).
APPEAL – Costs - Home building – Application for costs of appeal by successful respondent - Where amount in dispute more than $30,000 – Principle that costs follow the event – Whether Calderbank offer made – Whether the question of whether there was a need for the parties to be legally represented is relevant to the exercise of the costs discretion.
LEAVE TO APPEAL – Where application for leave to appeal from costs decision at first instance already determined.
Civil and Administrative Tribunal Act 2013 (NSW); Home Building Act 1989 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW).

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).

Legislation

Regulations and other miscellaneous instruments
Administrative Arrangements (Administration of Acts – Amendment No 4) Order 2017 (2017-756) – published LW 22 December 2017.
Home building compensation (business plan) insurance guidelines (2017-736) — published LW 22 December 2017.
Home building compensation (claims handling) insurance guidelines (2017-737) — published LW 22 December 2017.
Home building compensation (eligibility) insurance guidelines (2017-738) — published LW 22 December 2017.
Home building compensation (premium) insurance guidelines (2017-739) — published LW 22 December 2017.
Home building compensation (prudential) insurance guidelines (2017-740) — published LW 22 December 2017.
Licensee application guidelines—Home building compensation regulation (2017-741) — published LW 22 December 2017.
Statute Law (Miscellaneous Provisions) Act (No 2) 2017 (NSW)

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Christine Jones
Similar Articles
Relevancy Powered by MondaqAI
Holding Redlich
Holding Redlich
Holding Redlich
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Holding Redlich
Holding Redlich
Holding Redlich
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions