In the media
AIBS: External Wall Cladding – A Warning for
Australia's Building Industry
Issues arising from external wall cladding are the
subject of investigations, insurance claims for rectification
works, litigation and a soon to be completed Senate Inquiry in the
Federal Parliament. They are causing great angst for building
industry professionals and building owners and feature in media
reports contributing to continuing public disquiet and a loss of
confidence in the existing governance framework (04 April 2018).
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Infrastructure List is big ticket item
Infrastructure Australia (IA) has published its latest
Infrastructure Priority List, identifying $55 billion worth of
nation-building projects across the country. For the first time,
the Priority List has been published alongside an interactive map
which provides an up-to-date view of the nationally significant
investments (02 April 2018).
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Blackmail case against CFMEU officials set to go ahead
after court judgement
The Supreme Court rules that secondary boycott laws do
not give two CFMEU officials, John Setka and Shaun Reardon,
immunity from criminal prosecution, meaning blackmail charges
against the pair will go ahead (28 March 2018).
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New South Wales
Right rail for Newcastle
Expected to be fully operational in 2019, the Newcastle
Light Rail will form the centrepiece of a fully integrated, vastly
improved public transport network for Newcastle, which will
stimulate urban revitalisation and provide a solution to transport
demand for years to come (03 April 2018).
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Millions for Hambledon Road upgrades to fast track new
homes
NSW Government has injected about $27 million of funding
for key road infrastructure in Schofields that will help deliver
new homes in the area sooner. The project is being funded by the
Government's Housing Acceleration Fund (HAF) initiative to
accommodate future traffic growth (03 April 2018).
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Company fined $80,000 after worker injured in building
site fall
A Macquarie Park civil engineering company has been fined
$80,000 after a worker suffered head, spinal and chest injuries
when he fell more than three metres at a Mascot building site,
where the man was a subcontractor (31 March 2018).
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Western Sydney's future transport corridors to be
preserved
The NSW Government has released draft corridors for four
major future road and rail infrastructure corridors which will help
establish the Western Sydney Parkland City (29 March
2018).
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Queensland
Gas continues to flow in south-west
Leading gas producer Santos has gained rights to explore
for more gas near Injune in Queensland's south-west. Mines
Minister Dr Anthony Lynham said Santos and its joint venture
partners - TOTAL, Petronas, KOGAS and APLNG - had been awarded
exploration rights to an 86 square kilometre area about 65 km north
of Injune in Queensland's Bowen Basin (06 April 2018).
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Ipswich Motorway Upgrade flying through
A mammoth roads project set to make life easier for
people living west of Brisbane is a step closer to completion, with
detailed design for the $400 million Ipswich Motorway Upgrade:
Rocklea to Darra—Stage 1, now finalised (03 April 2018).
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New FIFO law reinforces local jobs for local
communities
The Palaszczuk Government's Strong and Sustainable
Resource Communities Act was due to come into force on Friday 30
March. This means major resource projects adjacent to nearby
regional communities will no longer be able to employ 100 per cent
fly-in fly-out workforces in Queensland (29 March 2018).
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Victoria
Parliament approves Snowy Sale to benefit all
Victorians
The Victorian Parliament has approved the historic sale
of Victoria's share of Snowy Hydro Limited, ratifying the
agreement reached with the Commonwealth. As part of the historic
agreement, Victoria will receive more than $2 billion from the
Commonwealth that will benefit all Victorians (29 March 2018).
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Victoria's nation-leading building boom boosting
jobs
New figures show the Andrews Labor Government has
overseen an unprecedented building boom in Victoria, with
engineering construction growth the strongest in the nation since
December 2014 (28 March 2018).
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Builders invited to build homes of the future
The $2.18 million Zero Net Carbon Homes pilot aims to
recruit up to three partnerships between land developers and volume
home builders to facilitate the design, marketing and construction
of zero net carbon homes that will be sold and marketed in growth
areas (25 March 2018).
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Cases
Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in
liq); Ostwald Bros Pty Ltd (in liq) v Seymour Whyte Constructions
Pty Ltd [2018] NSWSC 412
CONTRACTS – Rectification – Intention –
Common intention – where contract comprised formal instrument
and additional conditions – where special conditions
contained clause purporting to replace clause in formal instrument
– where clause in formal instrument was said to be
"non-negotiable" prior to agreement – whether
contract should be rectified by deleting clause in special
condition BUILDING AND CONSTRUCTION – CORPORATIONS –
where subcontractor wound up after obtaining adjudication
determination under Building and Construction Industry Security of
Payment Act 1999 (NSW) – whether Building and Construction
Industry Security of Payment Act remains available to subcontractor
– whether subcontractor remains a "claimant" after
being wound up – whether decision of Court of Appeal of
Victoria on this question is plainly wrong – effect of s 553C
of the Corporations Act 2001 (Cth) on subcontractor's rights
– whether there should be a stay of any judgment obtained by
subcontractor based on an adjudication certificate issued under the
Building and Construction Industry Security of Payment Act pending
the taking of accounts under s 553C of the Corporations Act
Watkins
Contracting Pty Ltd v Hyatt Ground Engineering Pty Ltd [2018] QSC
065
CONTRACTS – BUILDING, ENGINEERING AND RELATED
CONTRACTS – REMUNERATION – STATUTORY REGULATION OF
ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS –
ADJUDICATION OF PAYMENT CLAIMS – where the applicant
(Watkins) and the first respondent (Hyatt) entered into a
construction contract – where Watkins alleges it terminated
the contract for Hyatt's breach arising out of an onsite
incident – where the terms of the contract are in dispute
– where the alleged termination of the contract is in dispute
– where Hyatt denies that the alleged termination was
effected – where the Hyatt served a payment claim under the
Building and Construction Industry Payments Act 2004 – where
the adjudicator found in Hyatt's favour and determined the
adjudicated amount – whether the adjudicator refused to
consider Watkins' submission that the construction contract had
been terminated – whether jurisdictional error or denial of
natural justice – whether the adjudicator denied natural
justice in making his decision on a basis not raised by either
party – whether the Court could determine jurisdictional fact
– whether alternative reference date available
Civil
Mining & Construction Pty Ltd v Wiggins Island Coal Export
Terminal Pty Ltd (No 3) [2018] QSC 060
CONTRACTS – BUILDING, ENGINEERING AND RELATED
CONTRACTS – THE CONTRACT – CONSTRUCTION OF PARTICULAR
CONTRACTS AND IMPLIED CONDITIONS – DETERMINATION OF COSTS
– QUANTIFICATION OF DELAY CLAIM – where the parties had
identified on-Site overheads by reference to an Overheads
Spreadsheet – where the plaintiff sought to depart from the
Overheads Spreadsheet – where the plaintiff sought leave to
re-open its case to lead expert evidence as to the quantification
of the delay claim – where on subsequent appeal the Court of
Appeal set aside the grant of leave to re-open – the effect
of the decision of the Court of Appeal on the quantification of the
delay claim
INTEREST – RECOVERABILITY OF INTEREST – AWARD OF INTEREST ON DEBTS AND SUMS CERTAIN – INTEREST ON MONEYS SECURED BY BANK GUARANTEE – MONEY – GENERALLY AND WHAT CONSTITUTES – whether interest was payable on moneys secured by bank guarantee pursuant to section 58 of the Civil Proceedings Act 2011 (Qld) – the meaning of 'money' in section 58 – the purpose of an award of interest
INTEREST – RECOVERABILITY OF INTEREST – AWARD OF INTEREST AS DAMAGES – IN QUEENSLAND – where the Court had previously held interest to be payable under section 67P of the Queensland Building and Construction Commission Act 1991 (Qld) – whether section 67P provided for 'penalty interest', entitling the plaintiff not only to interest under the QBCC Act, but also contractually agreed interest – the meaning of 'penalty rate' in section 67P
INTEREST – RATE OF INTEREST – RATE IN OTHER CASES – where the parties had agreed the plaintiff was entitled to interest under the Contract – where the defendant later submitted that neither the contractual rate of interest, nor the statutory rate of interest under the QBCC Act, was applicable – whether the plaintiff's claims were more accurately characterised as claims for unliquidated damages, or as moneys owed under the Contract – whether, if a determination of a court or arbitrator results in an adjustment of a claimed sum, interest accrues retrospectively or only from the date of the determination – the effect of certification of a claim under the Contract
PHHH
Investments No 2 Pty Ltd v United Commercial Projects Pty Ltd (No
2) [2018] VSC 92
CONTRACT – Specific performance – Building
and construction contract – Contract required the contractor
to provide two unconditional bank guarantees of an approved type
– Where guarantees with expiry dates provided – No
express approval – Whether approval can be inferred from
conduct – Guarantees 'approved' by conduct within the
meaning of the contract – Proceeding dismissed.
Legislation
Bills
High Speed Rail Planning Authority Bill 2017
Senate Second reading debate 26/03/2018 - The Bill
establishes a High Speed Rail Planning Authority to advise on, plan
and develop high speed rail on the east coast of Australia.
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