Australia: Residential Focus – 4 July 2018: Part 2

Last Updated: 6 July 2018
Article by Christine Jones, Stefanie Dunnicliff and Divya Chaddha
Most Read Contributor in Australia, September 2018

In the media

Brendan Crotty appointed inaugural National Housing Finance and Investment Corporation chair
Director of Brickworks, General Property Trust and Dennis Family Holdings Brendan Crotty has been appointed the inaugural chair of the federal government's National Housing Finance and Investment Corporation (NHFIC) (26 June 2018). More...

Construction industry safety blitz underway
Figures from SafeWork NSW revealed falls from heights incidents had more than tripled in the last five years, prompting a 12 month safety blitz that kicked off in November last year. SafeWork inspectors have so far visited more than 460 construction sites in NSW, and issued $115,000 in fines over breaches to safety laws (29 June 2018). More...

Newcastle and Hunter residents warned about unlicenced asbestos removalist
Consumers are being warned about an unlicenced asbestos removalist targeting Newcastle and Hunter Valley residents. From 1 July 2018, residents can check if a licenced asbestos removalist has received any penalty notices on the SafeWork NSW Licence Register (20 June 2018). More...


ACI Construction Briefs
A fortnightly communication highlighting key updates related to Australia's construction industry (25 June 2018). More...

Australian Bureau of Statistics
27/06/2018 Engineering Construction Activity, Australia, Mar 2018 (cat no. 8762.0)

Nathers Newsletter No 6 2018
Published 28 June 2018 – Chenath updates for 2019; NatHERS Assessor Handbook; Split heating and cooling loads for NCC 2019; Trajectory for Low Energy Homes and NCC 2022.

In practice and courts

NTC Reminder: New changes for the transport of dangerous goods
The Australian Code for the Transport of Dangerous Goods by Road and Rail is set to be updated with changes designed to reduce the burden on industry when transporting low-risk items and bring into line with new United Nations transport requirements. In May, Transport ministers approved version 7.6 of the Code, with the changes effective from 1 July 2018 and compulsory from 1 July 2019. More...

prefabAUS Conference 2018
11th - 12th September, 2018 Brisbane Convention & Exhibition Centre. More...

New Building Standards

AS/NZS 1577:2018
Scaffold decking components - Standards Australia

AS 2050:2018
Installation of roof tiles - Standards Australia

AS/NZS 3000:2018
Electrical installations (known as the Australian/New Zealand Wiring Rules) - Standards Australia

AS 4386:2018
Cabinetry in the built-in environment - Commercial and domestic - Standards Australia

AS 3600:2018
Concrete structures - Standards Australi

New South Wales

NSW BPB: Certification data reporting – compliant software available now
Building Certification Systems (BCS) certification software is fully compliant with the data reporting requirements. As of 1 July 2018, local councils and accredited certifiers (A1, A2 and A3) are now required to report certification data for principal certifying authority (PCA) work. Data must be reported from the commencement of building work through to the issue of the final occupation certificate (25 June 2018). More...

NSW BPB: Building Certification Systems (BCS) clients
BCS certification software is now fully compliant with NSW data reporting requirements through use of an API. Existing clients should already have been contacted by BCS. As products are verified by the NSW Government as fully compliant they will be listed on the Building Professionals Board website. Other products are expected to be verified very soon and all certifiers and councils will be directly notified (25 June 2018).

NSW BPB: Certification data reporting mandatory from 1 July 2018
The Secretary's Order to introduce mandatory data reporting by A1-A3 certifiers and local councils has been gazetted. Data reporting is now mandatory as of 1 July 2018. To enforce compliance, the Building Professionals Board will focus on education in the first six months to help certifiers and councils meet requirements (25 June 2018). More...

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 for clearer explanation. 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...

BPB: Certification data reporting commenced 1 July 2018
To strengthen certification and building regulation in NSW, accredited certifiers and local councils are now required to report data on building certification to the NSW Government. More...


Carlisle Homes Pty Ltd v Tick Homes Pty Ltd [2018] FCA 973
COPYRIGHT – application for an interlocutory injunction restraining reproduction and sale of house plans and building houses in accordance with the plans – allegation of copying house plans in infringement of copyright in the plans – prima facie case established – damages an adequate remedy – balance of convenience against grant of interlocutory injunction – application dismissed. Copyright Act 1968 (Cth).

Simpson & anor trading as Almar Pioneer Interiors v Griffiths [2018] NSWSC 1010
CIVIL PROCEDURE – jurisdiction – where building claim brought in Local Court – where Magistrate refused plaintiffs' application to transfer proceedings to Civil and Administrative Tribunal – plaintiffs sought interlocutory orders in Supreme Court – no appearance by defendant – matter to be heard in Local Court day after interlocutory hearing – Home Building Act 1989 (NSW) s 48L requires Magistrate to transfer proceedings on application to the Civil and Administrative Tribunal – plaintiff has an arguable case as to error – Local Court proceedings stayed until further orders.
Building and Construction Industry Security of Payment Act 1999 ss 15, 16, 25; Civil and Administrative Tribunal Act 2013 Sch 4; Home Building Act 1989 (NSW) s 48L; Supreme Court Act 1970 (NSW) s 66.

Lee v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2018] NSWCATOD 101
ADMINISTRATIVE LAW – home building – supervisor certificate – where respondent refused applicant's application for a supervisor certificate on grounds that he was not a fit and proper person – where applicant had convictions for drug supply and possession committed about four years ago – where applicant claimed to have been rehabilitated – whether applicant had deliberately concealed criminal history on his application form – whether a person may be fit and proper whilst still serving a sentence in the community.

Zeait v Singh (No 2) [2018] NSWCATAP 159

  1. A hearing is dispensed with pursuant to s 50(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW).
  2. The appellant is to pay the respondent's costs of the appeal, as agreed or as assessed.

COSTS – application of r 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) – no question of principle.
Civil and Administrative Tribunal Rules 2014 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Home Building Act 1989 (NSW).

Catapult Constructions Pty Ltd v Denison [2018] NSWCATAP 158
APPEAL – Home Building Act – s 48O, extent of jurisdiction, nature and extent of order making power, "perform any specified work or service or obligation under Act or agreement" – breach of statutory warranties – breach of contract – discretion – order to perform any "specified act".

Wilson v Dash (No.2) [2018] NSWCATAP 155
2. The appellants must pay the respondent's costs of the appeal such costs if not agreed to be assessed on a party/party basis pursuant to the provisions of the Legal Profession Uniform Law Application Act 2014.
Costs - gross sum cost order.
Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014; Home Building Act 1989 (NSW); Legal Profession Uniform Law Application Act 2014 (NSW).

Clements v Murphy [2018] NSWCATAP 152
BUILDING AND CONSTRUCTION – home building – whether the preference for rectification of defective work by the responsible contractor arising from s48MA of the Home Building Act applies in relation to incomplete work. WORDS AND PHRASES – "defective work".
Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW); Home Building Act 1989 (NSW) ss 48MA, 48O.

Harris v Morabito Holdings [2018] NSWSC 912
BUILDING AND CONSTRUCTION – adoption of referee's report – discretion to adopt to be exercised judicially and with regard to the purpose for which discretion to refer is given – where report is factually thorough and reaches conclusions open on the evidence – where most errors complained of involve an attempt to reargue on the merits – exception regarding conclusions on delay and variations where there was a denial of natural justice – referee's report adopted in whole with the exception of conclusions regarding delay and variations.
CONTRACT – interpretation of building contract –distinction between the interpretation of the terms of a contract and standard or extent of performance required to satisfy those terms.
Civil Procedure Act 2005 (NSW); Home Building Act 1989 (NSW); Supreme Court Rules 1970 (NSW).
Uniform Civil Procedure Rules 2005 (NSW).

Tom v Jenkins [2018] NSWCATCD 7
Time for bringing proceedings – section 48K(3) of the Home Building Act 1989.

Webster v Tom [2018] NSWCATCD 6
Reasonably fit for occupation as a dwelling.

Jandson Pty Ltd v Syed Ahmad Shoaib Ali Pty Limited As Trustee for Syed Family Trust and Ors [2018] NSWCATCD 5
BREACH OF CONTRACT - repudiation– cause of action arising under contract – whether s94(1A) of the Home Building Act 1989 is a bar to a claim for damages for breach of contract in circumstances where no home warranty insurance policy was issued - quantum meruit.


Regulations and other miscellaneous instruments
Heavy Vehicle (Adoption of National Law) Amendment (Penalties) Regulation 2018 (2018-353) — published LW 29 June 2018
Heavy Vehicle (Adoption of National Law) Amendment Regulation 2018 (2018-354) — published LW 29 June 2018
Road Transport (Vehicle Registration) Amendment (Heavy Vehicles) Regulation 2018 (2018-335) — published LW 29 June 2018
Road Transport Legislation Amendment (Fees, Penalty Levels and Charges) Regulation 2018 (2018-334) — published LW 29 June 2018
Work Health and Safety Amendment (Fees) Regulation 2018 (2018-338) — published LW 29 June 2018
Heavy Vehicle (Registration) National Regulation (2018-298) — published LW 22 June 2018
Heavy Vehicle National Legislation Amendment Regulation 2018 (2018-299) — published LW 22 June 2018
Road Transport (Minimum Toll Expenditure Calculation) Amendment Order 2018 (2018-281) — published LW 22 June 2018
Surveying and Spatial Information Amendment (Fees and Deposits) Regulation 2018 (2018-283) — published LW 22 June 2018

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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