Australia: Residential Focus – 1 August 2018: Part 2

Last Updated: 2 August 2018
Article by Christine Jones, Stefanie Dunnicliff and Divya Chaddha
Most Read Contributor in Australia, September 2018

In the media

AIBS Senate hearing - Inquiry Into non-conforming building products
Australian Institute of Building Surveyors (AIBS) appeared before Senate Economics Reference Committee Inquiry into Non-conforming building products (NCBP) Wednesday 19 July in Sydney. This third inquiry into NCBP was focussed on the use of external cladding (26 July 2018). More...

Driving down deaths in construction industry
A new plan has been launched today to reduce deaths and accidents in the NSW construction industry. Minister for Better Regulation Matt Kean said it was critical to get construction safety right, with $80 billion to be spent on NSW infrastructure over the next four years (27 July 2018). More...

In practice and courts

AIBS Industry Alert - Air conditioners on balconies
A serious safety issue with apartment balconies has been identified by members of the Australian Institute of Building Surveyors (AIBS). In relation to the restriction of the location of an air conditioner condenser unit or other fixed items that could facilitate climbing in proximity to a balcony balustrade, AIBS believes the National Construction Code is not adequately clear in respect of the acceptable construction manual (27 July 2018). More...

ABCC: Security of payments for subcontractors in the building and construction sector.
The ABCC has produced new resources, including security of payment guides for contractors and subcontractors and new website content (17 July 2018). More...

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

Current Consultations
Non-conforming building products
Status: Submissions Closed Date Referred: 11 October 2016 Next Hearing: 02 August 2018 Reporting Date: 16 August 2018


Beveridge v Style Tiles and Bathrooms Pty Ltd [2018] NSWCATAP 183
CONTRACT LAW – formation of contract – "refundable" deposit – uncertainty.
HOME BUILDING ACT – Unenforceable contract – claim by homeowner – requirements of s 7AAA of Home Building Act 1989 (NSW).
COSTS – special circumstances – original orders set aside due to non-appearance of respondent – subsequent rehearing – party partially successful.

Woodward v D J & T L Mellross Pty Ltd [2018] NSWCATAP 179
BUILDING AND CONSTRUCTION – Home Building – Construction of contracts – precedence of documents – assessment of damages – whether rectification a reasonable course to adopt.

TTM Investment Corporation Pty Ltd v Hua Chang Pty Ltd [2018] NSWSC 1078
Security for costs order and freezing order to be granted.
CIVIL PROCEDURE – security for costs – discretionary considerations – where party resisting order not acting purely defensively in main proceedings – relevance of the strength of a party's claim.
CIVIL PROCEDURE – security for costs order – quantum of security – ascertaining quantum where neither party is acting purely defensively in main proceedings – difficulty in ascertaining quantum where claims and cross-claims are interconnected.
CIVIL PROCEDURE – interlocutory application – freezing order – risk of removing assets out of jurisdiction – where party has little to no connection with jurisdiction – where party has commercial incentive to remove assets from jurisdiction.
Home Building Act 1989 (NSW), s 92(1).

Champion Homes Sales Pty Ltd v Commissioner for Fair Trading [2018] NSWCATOD 114
ADMINISTRATIVE REVIEW – Home Building – Disciplinary action – Where respondent imposed fine on applicant in respect of breaches of statutory warranty to exercise due care and skill – Whether different standards of liability should apply in proceedings for breach of warranty and in disciplinary proceedings.

Sproule v D P James Carpet Laying Pty Ltd [2018] NSWCATAP 177
Leave to appeal on a ground other than a question of law is refused.
APPEALS – admission of fresh evidence – rules of evidence – weight of evidence – no question of principle.

El Howot v Moss [2018] NSWCATAP 173
(1) The extension of time to lodge the appeal under sec 41 Civil and Administrative Tribunal Act 2013 is refused.
(2) The Appeal is dismissed.
APPEAL – extension of time – inadequate explanation of delay – weak prospects and lack of substantive merit – additional considerations taken into account in applications for leave to appeal from decisions of the Consumer and Commercial Division.
COSTS – special circumstances.
Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Regulation 2013; Civil and Administrative Tribunal Rules 2014; Corporations Act 2001 (Cth); Home Building Act 1989 (NSW).

Lane Cove Council v The Owners – Strata Plan No 88649 [2018] NSWCATAP 171
HOME BUILDING CLAIM – defects and statutory warranties – no evidence or no reasonable basis for conclusion – failure to provide proper reasons – whether rectification work was a necessary and reasonable course to adopt – failure to provide procedural fairness – Civil and Administrative Tribunal Act 2013 (NSW); Home Building Act 1989 (NSW).

Andy and Patrick Floor Covering Pty Ltd t/as Silver Trading Timber Floor v Li [2018] NSWCATAP 172
By consent, pursuant to s 80(3) of the Civil and Administrative Tribunal Act 2013 (NSW) the appeal is to be dealt with by way of a new hearing.
PRACTICE AND PROCEDURE – Section 80(3) of the Civil and Administrative Tribunal Act 2013 (NSW) – determination of appeal by way of rehearing.
CONSUMER LAW – whether Expert Report – whether sufficient to prove claim.
Australian Consumer Law (NSW); Civil and Administrative Tribunal Act 2013 (NSW).

Owners Corporation 1 PS523454S v L.U Simon Builders Pty Ltd (Building and Property) [2018] VCAT 987
Domestic building – s75 Victorian Civil and Administrative Tribunal Act 1998 – standing of owners corporation to bring proceeding on behalf of private lot owners – s9 Domestic Building Contracts Act 1995 – s12 Owners Corporations Act 2006 – whether architect owes duty of care to the owners corporations.
By 2 August 2018 the applicants must file and serve substituted Points of Claim having regard to these Reasons.

The Owners – Strata Plan No. 80751 v AV Jennings (Cammeray) [2018] NSWSC 1080
CIVIL PROCEDURE – application for leave to rely on expert reports and affidavits served out of time – whether in interests of justice to grant leave – where hearing date is upcoming – impractical for defendant to deal with some of the reports in that time – whether hearing date should be vacated – where plaintiff had advance notice of necessity of expert evidence – no satisfactory explanation for delay given – vacation of hearing would create wasted court time – leave partially granted and partially refused.

Kang v Bishop (No 2) [2018] NSWSC 1073
ADMINISTRATIVE LAW – judicial review – appeal from Local Court– application to quash orders made by Magistrate – jurisdiction of Local Court – whether prosecution in Local Court authorised – whether delegate authorised under Fair Trading Act 1987(NSW) required to bring prosecution under s 192E and s 192 G of the Crimes Act 1900 (NSW) – proper construction of s 14 and s 173 of the Criminal Procedure Act 1986 (NSW) – consideration of the interaction between Criminal Procedure Act, Crimes Act and Fair Trading Act – application dismissed.


Regulations and other miscellaneous instruments
Community Housing Providers (Adoption of National Law) Regulation 2018 (2018-385) — published LW 20 July 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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