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.
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