Australia: Residential Focus - 23 May 2018: Part 2

Last Updated: 31 May 2018
Article by Christine Jones, Stefanie Dunnicliff and Divya Chaddha
Most Read Contributor in Australia, September 2018

In the media

Trucking company fined over 'preventable' deaths of Irish construction workers
The deaths of two workers were preventable because there were "simple and practical steps" the trucking company, Axedale Holdings, could have taken to ensure the panels were secure, the deputy chief magistrate says (17 May 2018). More...

Rising weather risk hits construction industry
The construction industry is facing rising risks from more frequent extreme weather events, Gallagher says in a white paper. Population increases and the cost of building in the current economy are also adding to the impact of weather events and placing more importance on mitigation and preparation (14 May 2018). More...

Building and construction sector to peak soon
Recent infrastructure-heavy State and Federal Budgets will not prevent a peaking in the public investment cycle over 2018/19, according to leading construction industry analyst and economic forecaster, BIS Oxford Economics, officially launching its civil construction report, Engineering Construction in Australia 2018 – 2032 (13 May 2018). More...

Couple had to uncover dodgy builder on own
The failings of the NSW building regulator have been laid bare in an ombudsman's report after a couple left with a $528,000 repair bill uncovered a builder's dodgy past with a simple internet search (16 May 2018). More...

Strengthening of noise management for housing around Western Sydney Airport
Recent media reports concerning the noise restrictions for housing around the Western Sydney Airport are inaccurate. NSW Government policy on the standard for noise around Western Sydney Airport has not changed (10 May 2018). More...

Published

ACI Construction Briefs
A fortnightly communication highlighting key updates related to Australia's construction industry.
ACI Construction Brief: Budget sprinkles a dose of fairy dust...but is it enough to win an election? (14 May 2018).

Australian Bureau of Statistics
11 May 2018: Housing Finance, Australia, March 2018 (cat no. 5609.0).

Practice and courts

More housing options for NSW: Low Rise Medium Density Housing Code
The new Code will allow one and two storey dual occupancies, manor houses and terraces to be built under fast-track complying development approval across NSW and also promotes good design for medium density housing. Low-rise medium density housing as complying development is only allowed where medium density development is already permitted under a council's local environmental plan. The Medium Density Housing Code will commence on 6 July 2018.

Greenfield Housing Code
The changes start on 6 July 2018, the new Code will be included in the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008. In essence; it is a simplifying of the development process and aligning the requirements for development across greenfield areas; the planning rules and the code are also presented in plain English to clearly explain planning rules (11 April 2018). More...

Note: There will be a three-year transitional period, where applicants can choose whether to use the Greenfield Code, or the new simplified Housing Code or Transitional Code (until 13 July 2019).

Cases

Singh v Mohibi t/as Spotless Finishes Painting and Decorating [2018] NSWCATAP 115
The appeal is allowed and the decision made on 23 February 2018 is set aside.
The proceedings are remitted for rehearing by the Tribunal, the parties being permitted to adduce further evidence.
PROCEDURAL FAIRNESS- absence of relevant evidence to support adjournment application- adequacy of reasons for conclusions.
RESIDENTIAL BUILDING WORK - unenforceable contract - requirements for written contract- licence number- statutory warranties- quantum meruit as alternative claim.
Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW); Home Building Act 1989 (NSW). More...

Precise Builders (NSW) Pty Ltd v Jones & Krel [2018] NSWCATAP 112
APPEAL - Home building – Work order – Order to perform or procure performance of remedial work. Appeal dismissed. Civil and Administrative Tribunal Act 2013 (NSW); Home Building Act 1989 (NSW). More...

Reozone Pty Ltd v Rene Santoro & Ors [2018] NSWSC 650
Orders made for payment out of Court. Orders stayed pending the making of final attempts to locate the mortgagor. Funds in Court paid out notably among the applicants.
FUNDS - IN - COURT - surplus funds paid into Court after sale of real property by mortgagee - Trustee Act 1925, s.95 - Uniform Civil Procedure Rules 2005, r.55.11 - mortgagor/registered proprietor cannot be found - orders for substituted service upon mortgagor/registered proprietor made - mortgagor/registered proprietor primarily entitled to fund in Court - orders made for additional notice to be given to mortgagor/registered proprietor - three groups of unsecured creditors apply for payment out of the funds in Court - one has a judgment against the mortgagor/proprietor and the others have unresolved claims - whether payment out of Court should be ordered and if so on what basis - what steps should be taken to determine he unresolved claims.
Civil Procedure Act 2005, ss.98(4)(c), 106(1)(c); Conveyancing Act 1919, ss.23C and 54A; Federal Court of Australia Act 1976, s.52; Home Building Act 1989.

Zeait v Singh [2018] NSWCATAP 109
COSTS – Application of r.38(2) of the Civil and Administrative Tribunal Rules 2014 – meaning of "the amount claimed or in dispute in the proceedings is more than $30,000" - The Costs Decision concerned the costs of matters HB 15/07518 (the homeowners' application) and HB 15/32783 (the builder's application). The Tribunal ordered the builder to pay the homeowners' costs in both applications.

Access Housing Pty Ltd v Rayfield [2018] NSWSC 599
APPEAL – appeal from Appeal Panel of New South Wales Civil and Administrative Tribunal – appeal under s.83 of the Civil and Administrative Tribunal Act 2013 – appeal by leave – appeal "on a question of law" – no basis for alleged errors giving rise to a question of law – leave refused.

Knox v Bollen; Bollen v Knox [2018] NSWCATAP 106
APPEAL – costs where proceedings settled – adequacy of reasons.

Grant v Gillham; Christopher J Grant Pty Ltd v Gillham [2018] NSWCATAP 104
APPEAL: Home building – Identity of contracting parties – Breach – Determination of compensation – Adequacy of reasons.

Islam v Metricon Homes Pty Ltd [2018] NSWCATAP 116
APPEAL – Costs – Gross sum costs orders.

Lucchese v McDonell [2018] NSWCATAP 120
APPEALS – building engineering and related contracts – general contractual principles – termination – accrued rights – remuneration – deposit – cost of rectification – proof of claim – departure from the rules of evidence.
CIVIL PROCEDURE – inferior tribunal – Civil and Administrative Tribunal (NSW) – multiple appeals – practice and procedure – decisions and orders – set-off of amounts found to be owed in separate appeals.

GPM Constructions Pty Limited v Baker [2018] NSWCATAP 119
CONTRACT – whether building contract on foot – whether owner lost entitlement to damages for defective building work in such a case – whether the owner had failed to act reasonably or failed to mitigate her loss by not requesting the builder to return to rectify defects.
HOME BUILDING ACT – s.48MA, preferred outcome principle, relevant considerations, what order is appropriate.
FAIR TRADING ACT – s.79U – applicability in determination of claims under the Home Building Act – modifications required by Home Building Act – relevance of s.48MA of Home Building Act.
DISCRETION – order – making power under s.48O of Home Building Act – application of preferred outcome principle.

Gregorio v Cheadle [2018] NSWCATAP 118
HOME BUILDING ACT – Statutory construction – s.18E proceedings for breach of statutory warranty – limitation period for bringing claim by a successor in title against owner builder – effect of amendment on limitation period – nature of right of successor in title under section 18C of the Home Building Act to bring proceedings for breach of statutory warranties.

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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