Australia: Construction & Infrastructure News – 14 February 2018

Last Updated: 19 February 2018
Article by Troy Lewis, Stephen Burton, Suzy Cairney, Stephen Natoli, Kyle Siebel, Scott Alden, Christine Jones and Helena Golovanoff

Most Read Contributor in Australia, March 2019

In the media – National

It pays to build for resilience
For every $1 governments spend on increasing the resilience of existing buildings, $6 is saved in property losses, health costs and interruption to business, new US research has found. Professor Porter said there was nothing wrong with building codes in terms of their primary purpose of protecting human life, however they fell short in terms of preventing buildings from becoming unusable (08 February 2018). More...

Businesses plan to invest and hire more: NAB survey
Companies expect to hire more workers as they see conditions improving, according to NAB's quarterly business survey. Plans for capital expenditure rose in most sectors, particularly manufacturing and construction, but were lower amongst retailers and finance firms (08 February 2018). More...

Same old tricks': James Hardie accused of avoiding asbestos compensation
Ten years after the court case that forced asbestos manufacturer James Hardie to face up to the consequences of its deadly product, the company is accused of again playing hardball with victims (05 February 2018). More...

Proposed model for infrastructure governance
A major new report, Infrastructure Governance in Australia, has called for greater separation between politics, planning and projects The report by Consult Australia presents a model infrastructure body or "IBody" for adoption by all jurisdictions following a comprehensive review of their existing governance procedures (02 February 2018). More...

MBA: Non-Residential Approvals Support a More Positive Outlook in 2018
Total dwelling approvals fell by 20% in seasonally adjusted terms in December 2017, and by 5.5% over the year. However, the monthly data can be relatively volatile and follows a long period of steady growth in number dwelling approvals over the latter half of 2017 (01 February 2018). More...


Victoria's new international airport
The construction of an international terminal at Avalon Airport in Victoria will see it become the state's second international airport by the end of 2018. The Victorian Government said the construction of the international terminal is expected to cost more than $20 million and create about 230 jobs (05 February 2018). More... (Govt statement) More...

Geelong Port endorsed as a priority
The G21 Board has endorsed Geelong Port's submission to become a Priority Project, acknowledging its importance as an economic driver for the region and the state of Victoria. The Priority Project focuses on two key components: strengthening the port's freight links (road, rail and channel); and protecting it against encroachment to allow the port to achieve its growth objectives (05 February 2018). More...

Victoria's first Chief Engineer to guide major projects
The Andrews Labor Government has appointed Dr Collette Burke as Victoria's first Chief Engineer to help oversee the state's record infrastructure pipeline. Dr Burke will provide expert advice to the Labor Government on major project design and engineering (02 February 2018). More...

New South Wales

New tool to empower homeowners
A new online tool was officially launched by the New South Wales Government today that will help protect homeowners against uninsured and unlicensed building work. Minister for Finance, Services and Property Victor Dominello said HBC Check will enable homeowners to independently verify if any building or renovation work over $20,000 has a valid insurance certificate (09 February 2018). More....

Second phase of Social and Affordable Housing Fund opens
The New South Wales Government has officially opened the Expressions of Interest for the second phase of its Social and Affordable Housing Fund (SAHF), which will deliver up to 1,200 additional social and affordable homes (07 February 2018). More...

Western Sydney Airport to go to market

Western Sydney Airport Corporation has released two procurement packages for main earthworks and airside pavements on the airport site. WSA Co will also go to market in early February for the first stage of the main airport works program (02 February 2018) More...


Work underway on $48 million Toowoomba Range rail upgrade
The Palaszczuk Government has commenced work has on a major rail upgrade along the Toowoomba Range, which will support 100 construction jobs locally (08 February 2018). More...

FNQ windfarm set to support 200 construction jobs
Far North Queensland residents are the beneficiaries of a new $200 million wind farm that will generate enough power to supply more than 50,000 homes (08 February 2018). More...


Powering our future: Inquiry into modernising Australia's electricity grid
House of Representatives Standing Committee on the Environment and Energy; Parliament of Australia: 05 February 2018
This inquiry heard that a lack of policy certainty is impacting on the operation of the NEM, as a lack of certainty has an impact on investment. The policy certainty required relates to a mechanism to achieve emissions reduction in the electricity sector. The electricity sector is capital intensive and a lack of policy certainty has undermined investment in the sector. More...

ACI Construction Briefs
A fortnightly communication highlighting key updates related to Australia's construction industry.
ACI Construction Brief: Wages growth is the biggest economic issue for political leaders (05 February 2018).

Practice and courts

ABCC: Funding Recipients - Updated Model Clauses and dedicated webpage 2018
To assist funding entities and funding recipients to apply the Code for the Tendering and Performance of Building Work 2016 (2016 Code) on applicable building projects the ABCC has revised a number of key resources including: Publishing a dedicated webpage for funding recipients which outlines the responsibilities of funding recipients; Simplifying and clarifying the Funding Entity and Recipient Model Clauses for Indirectly Commonwealth Funded Building Work. NOTE: As a result of these changes, funding recipients are no longer required to comply with some elements of the 2016 Code on indirectly Commonwealth funded building work.

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

Proposed reforms for buildings with combustible cladding
The New South Wales Department of Planning and Environment (DP&E) has released a package of proposed reforms requiring owners to: register their building/s with the NSW Government and engage an expert to do a fire risk assessment of the cladding. The package is on exhibition until 16 February 2018. More...


QBCC: Notifiable Work Audits
When it comes to notifiable work administration audits, there are three audit programs – random, compliance and real estate. In 2017, the QBCC conducted 550 notifiable work administration audits across Queensland. Real estate audits were conducted in various regions, including Toowoomba, Cairns, Townsville, Hervey Bay, Moreton Bay, Brisbane, Logan and Sunshine Coast (25 January 2018). More...


Bluefin Seafoods Pty Ltd v Fraser Coast Regional Council [2018] QSC 014
LIMITATION OF ACTIONS – GENERAL MATTERS – AMENDMENT OF ORIGINATING PROCESS AND PLEADINGS OUTSIDE LIMITATION PERIOD – AMENDMENTS INTRODUCING NEW CAUSE OF ACTION OR PARTICULARISING CAUSE OF ACTION – Where the defendant applies to strike out the statement of claim in its entirety, on the basis that the plaintiff's claims are statute barred – where the plaintiff concedes that the causes of action for which it commenced the proceedings on 8 June 2016 are statute barred – whether new allegations in the plaintiff's amended statement of claim filed in December 2017 constitute new causes of action, in respect of which the limitation periods have expired – whether the new causes of action arise out of the same or substantially the same facts as the earlier causes of action for which relief was claimed - Bluefin and the Council entered into an agreement under which in consideration of the Council providing the necessary infrastructure, Bluefin would develop an aquaculture facility on certain land.

Low v MCC Pty Ltd; MCC Pty Ltd v Low [2018] QSC 006
EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INTERLOCUTORY INJUNCTIONS – relevant considerations – balance of convenience generally – where the applicant is seeking an injunction to restrain enforcement of adjudicator's decisions under BCIPA filed as judgments in the District Court of Queensland – where the applicant has offered to undertake to provide a bank guarantee in to court sufficient to cover the amount of the adjudicator's decisions – whether a "prima facie" case has been shown by the applicant – whether the balance of convenience favours the grant of an injunction.

Hansen v Patrick [2018] QSC 007
MISLEADING AND DECEPTIVE CONDUCT – whether representations made or relied upon – fiduciary duty- whether duty owed to shareholder – whether fiduciary duty breached – application to reopen case and tender fresh evidence – money withheld at settlement – money had and received - partnership was formed for the purpose of acquiring earth moving equipment for lease to property developers and civil engineering contractors and, on the plaintiffs' case, subsequently, for the purpose of land development and resale.

Pusey v Bayside Cabinet Makers [2018] VSC 28
JUDICIAL REVIEW AND APPEALS – Anshun estoppel – Abuse of process – Applicant failed to attend hearings – Leave to appeal from a decision of the Victorian Civil and Administrative Tribunal – No real or significant argument that error of law exists – No question of law of general or public importance – Application for leave to appeal dismissed – Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148(1)(b) - supply and install a kitchen at a residential property – defective work.

Ian Street Developer Pty Ltd v Arrow International Pty Ltd [2018] VSC 14
BUILDING CONTRACTS – Building and Construction Industry Security of Payment Act 2002 (Vic) – Principles of statutory construction considered.
BUILDING CONTRACTS – Building and Construction Industry Security of Payment Act 2002 (Vic) – Whether a special purpose vehicle 'in the business of building residences' – Section 7(2)(b) of the Act considered – Whether the Act applies – Plaintiff is 'in the business of building residences'.
BUILDING CONTRACTS – Building and Construction Industry Security of Payment Act 2002 (Vic) – Whether the maximum extension of time permitted under s 22(4) of the Act is a further 5 days or a further 15 days – Maximum permitted extension of time is a further 5 days.
BUILDING CONTRACTS – Building and Construction Industry Security of Payment Act 2002 (Vic) – Whether an adjudication determination given after the period permitted under s 22(4) of the Act is invalid – Out of time determination is not invalid – Requirements of s 22(4) of the Act not jurisdictional.
BUILDING CONTRACTS – Building and Construction Industry Security of Payment Act 2002 (Vic) – Whether a payment claim under s 14 of the Act may include the value of work performed before an earlier reference date – A person entitled to a progress payment, which is calculated by reference to a reference date under s 9 of the Act, may include the value of work performed before the previous reference date.

PHHH Investments No 2 Pty Ltd v United Commercial Projects Pty Ltd [2018] VSC 15
BUILDING CONTRACTS – Building and Construction Industry Security of Payment Act 2002 (Vic) – Whether an adjudication determination given after the period permitted under s 22(4) of the Act is invalid – Out of time determination is not invalid – Requirements of s 22(4) of the Act not jurisdictional.
BUILDING CONTRACTS – Building and Construction Industry Security of Payment Act 2002 (Vic) – Agreement to an extension under s 22(4) of the Act – Whether claimant's offer to agree to an extension of time constituted an implied agreement – No implied agreement for extension of time.

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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Suzy Cairney
Kyle Siebel
Scott Alden
Christine Jones
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