Australia: Construction & Infrastructure News – 6 June 2018

Last Updated: 9 June 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, September 2018

In the media

Business investment weakness continues, dragged down by construction
Weakness in construction investment leads to another disappointing batch of data, despite the fall in mining spending appearing to have bottomed out (31 May 2018). More...

Building sector softens as residential and commercial approvals fall again
While falling approvals point to residential building peaking, the commercial sector is in deeper strife with permits down 20 per cent over the year (30 May 2018). More...

Cladding and compliance scandal: the saga continues
While audits into cladding on high-rise buildings continue to deliver bad news, the long-awaited Shergold and Weir review of building regulations has thrown down the gauntlet to building ministers to step up and adopt a national approach to compliance and enforcement (30 May 2018). More...

First claim of unlawful picketing filed in Court over alleged CFMMEU blockade in Melbourne
The ABCC has commenced the first case alleging contraventions of the new unlawful picketing provisions against the CFMMEU and three of its representatives for an alleged blockade of two Melbourne sites in May 2017 (29 May 2018). More...

GBCA: It's time to think about biodiversity like we do climate and energy
The Green Building Council of Australia (GBCA) wants the building sector to start thinking about biodiversity and ecology the same way it does about climate change and energy (29 May 2018). More...

As costs rise, Australians are demanding energy-efficient buildings
Australian consumers are demanding energy efficiency in new buildings – and ignoring this trend could be dangerous for the building industry (24 May 2018). More...

James Hardie profit tumbles on mounting asbestos claims
Building materials maker James Hardie says compensation claims from its historical production of asbestos fibre are higher than expected and have dragged down its profits (22 May 2018). More...

National Review of Security of Payment Laws final report released
The Turnbull Government has released the final report of the Review of Security of Payment Laws, undertaken by Mr John Murray AM. The comprehensive report makes 86 recommendations to improve consistency in security of payment legislation and enhance protections to ensure subcontractors get paid on time for work they have done, regardless of which state or territory they operate in (21 May 2018). More...

In the media – Victoria

Planning reforms to boost affordable housing
Minister for Planning Richard Wynne today announced that new regulations have come into force that better define 'affordable housing' and make it easier for Councils and developers to negotiate voluntary agreements to include affordable homes in residential developments (01 June 2018). More...

Build Aware: Melbourne's northern suburbs the target of work site inspections
Five Victorian building regulators are taking part in a joint inspection program across building, construction and demolition sites in the cities of Moreland, Hume, Whittlesea and Darebin, to check whether operators are complying with the law (28 May 2018). More... More..

Ballarat's construction boom boosts employment
Minister for Regional Development Jaala Pulford outlined the opportunities for local businesses and contractors through construction of the GovHub, which is set to begin later this year and said it will support construction jobs and ongoing employment. "These projects are part of the most significant infrastructure investment and construction program in Ballarat's history" (28 May 2018). More...

Victoria's Ravenhall Prison Project named Australia's best infrastructure project
Victoria's $670 million Ravenhall Prison Project has been named as Australia's best infrastructure project at Infrastructure Partnerships Australia's National Infrastructure Awards (24 May 2018). More...

In the media – New South Wales

$587 million infrastructure plan for central and south Sydney
The City of Sydney is investing $587 million on major projects to transform central and south Sydney over the next 10 years (28 May 2018). More...

In the media – Queensland

Mackay primed for development boost
Mackay is set to undergo a job-creating and lifestyle-boosting revitalisation with the Queensland Government declaring a priority development area (PDA) on 170 hectares within the CBD and along the Pioneer River and Town Beach (01 June 2018). More...

Jobs flow as resources prices rise
Mines Minister Dr Anthony Lynham has welcomed the new jobs and business opportunities flowing in regional Queensland as coking coal mines reopen on the back of rising prices (30 May 2018). More...

Sunshift to develop Australia's second largest Solar Hybrid System
A new contract with Energy Developments Pty Ltd will see Sunshift build the nation's first hybrid gas-fired power station for South32 at its Cannington mine in North Queensland (29 May 2018). More...

Call for a more sustainable Queensland projects pipeline
Three of Queensland's leading industry bodies have released their key annual report, calling for greater collaboration from state and federal governments to accelerate infrastructure projects throughout Queensland in a bid to maintain the state's current economic momentum (25 May 2018). More...

Global solar leader adds Longreach to their portfolio
Queensland is taking another step to becoming Australia's solar state with the commissioning of Canadian Solar's $29 million Longreach solar farm, which is being progressively commissioned and is operating at 50 per cent capacity exporting 7 megawatts of power into the Ergon Energy grid (22 May 2018). More...

Published

Review of Security of Payments laws: final report
John Murray; Department of Jobs and Small Business (Australia): 21 May 2018 The purpose of the review was to identify legislative best practice, with a view to improving consistency in security of payment legislation and the level of protection afforded to construction industry subcontractors to ensure they obtain payment for work they have completed or for goods and services they have supplied. More...

Australian Bureau of Statistics
30 May 2018 Building Approvals, Australia, Apr 2018 (cat no. 8731.0)
23 May 2018 Construction Work Done, Australia, Preliminary, Mar 2018 (cat no. 8755.0)

In Practice and Courts

Commonwealth

New online portal launched by NERA (National Energy Resources Australia)
The portal is an electronic repository for environmental 'reference cases' – detailed reports that capture common content relating to the environmental impacts and risks of offshore petroleum activities. The portal has the potential to significantly reduce the assessment burden on companies in terms of cost, timeframes and uncertainty by simplifying the preparation and submission of new environment plans for future exploration (23 May 2018). More...

National Community Engagement for Infrastructure Forum 2018
The Forum will provide insight on advancing community consultation in the infrastructure and natural resources space; discovering new industry trends and policies which may impact the community engagement framework and the development of infrastructure projects now and in the future; and exploring new tools and the latest research to support community and stakeholder engagement in infrastructure. Date: 19 – 20 July 2018 at the Crown Conference Centre in Melbourne. More...

New South Wales

More housing options for New South Wales: 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 New South Wales 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.
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). More...

Cases

Commonwealth

Robinson v 470 St Kilda Road Pty Ltd [2018] FCAFC 84
DAMAGES – loss or damage – assessment of damages – causation – where the claim for damages was run as an "all or nothing" case – whether the primary judge erred in concluding that the consequence of the appellant's failure to disclose its financial position was that the respondent would not have paid a sum in respect of the payment claim – where the primary judge's conclusion at trial was open on the evidence adduced and the case as pleaded.
CONSUMER LAW – misleading or deceptive conduct – loss or damage – assessment of damages – proportionate liability – application of Competition and Consumer Act 2010 (Cth) Pt VIA, Proportionate liability for misleading and deceptive conduct – "apportionable claim" – "concurrent wrongdoer" – Tesco liability – whether the director's liability for an act should be reduced from 100% to 50% to be shared with the company - moneys due and payable to subcontractors in respect of works the subject of payment claim.

New South Wales

In the matter of Powerpark Systems Pty Ltd [2018] NSWSC 793
CORPORATIONS – statutory demand – application to set aside creditor's statutory demand – demand based on judgment arising upon filing of adjudication certificate under Building and Construction Industry Security of Payment Act 1999 (NSW) – whether genuine dispute as to the existence of the debt – whether debt is subject to offsetting claim – whether "some other reason" to set aside demand – whether foreshadowed curial proceedings to quash the adjudicator's determination for jurisdictional error of law amounts to a "genuine dispute" or "some other reason" to set aside demand.

Cockram Construction Ltd v Fulton Hogan Construction Pty Ltd [2018] NSWCA 107
BUILDING AND CONSTRUCTION – adjudication of payment claim – review of adjudicator's decision –content of the reasons to be included in determination – where adjudicator concluded that contractual condition precedent to extension of time was not legitimate or workable because it depended on something happening under another contract – whether the determination failed to include the reasons for the determination – whether the adjudicator departed from the statutory function by so concluding.

Victoria

Brighton Australia Pty Ltd v Multiplex Constructions Pty Ltd [2018] VSC 246
BUILDING AND CONSTRUCTION – Claim based on alleged misleading conduct – Whether implied representation arose from tender documentation incorporating a construction program.
PRACTICE AND PROCEDURE – Purpose of pleadings – Whether a claim based on a continuing representation was pleaded – Whether the case conducted on the basis of a continuing representation – Failure to plead non-disclosure – Whether claim was a drastic departure from the pleading.
PRACTICE AND PROCEDURE – Principles to be applied on application to adopt the report of a special referee under r 50.04 – Whether a finding with respect to the making of a representation is a question of law.
CONSUMER LAW – Misleading conduct – Meaning of a 'continuing representation' considered – Consideration of test to be applied in determining whether a representation was made.
PUBLIC POLICY – Juridical basis for the unenforceability of contractual bars to claims under Australian Consumer Law considered – Whether a clause regulating the time a claim could be brought under s.236 of the Australian Consumer Law is unenforceable.

Valeo Construction v Pentas [2018] VSC 243
BUILDING CONTRACTS – Progress payment claims – Revision and correction and withdrawal of progress payment claim – Compliance with statutory requirements – Whether revised payment claim constituted a prohibited second claim in relation to same reference date – Building and Construction Industry Security of Payment Act 2002 (Vic), s.14(8).
BUILDING CONTRACTS – Progress payment claims – Payment schedule served out of time – Application for recovery of debt - Building and Construction Industry Security of Payment Act 2002 (Vic), s.16(2)(a)(i).

Casenote: Multiplex Constructions Pty Ltd [2018] VSC 246 Summary of Justice Riordan's judgment delivered on 17 May 2018. Justice Peter Riordan in the Victorian Supreme Court has found the practice of formulating private contracts that limit the period in which parties can claim for misleading or deceptive conduct is contrary to the public policy of the Australian Consumer Law.
The Court appointed a special referee to report on the subcontractor's claims. Justice Riordan found the special referee's opinion should be adopted, but His Honour determined that the special referee made an error in finding that the plastering company was barred by the terms of its contract from bringing a claim under the Australian Consumer Law.

Other

Hanson Construction Materials Pty Ltd v Saliba & Anor [2018] SADC 50
CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - THE CONTRACT
The plaintiff supplies products to the building industry. The defendants are in partnership and operate a concreting business. Unpaid amount.
The plaintiff relies upon a clause in the Credit Contract that includes these words '...In addition, the Customer will be liable for all transactions involving the Customers credit account, including fraudulent use of that account by the Customer or its employee'. Held: Claim dismissed.

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
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