Australia: Construction & Infrastructure News - 13 August 2018

Last Updated: 16 August 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

Major infrastructure contractor York Civil goes into administration
An Adelaide-based construction and engineering company, which employs more than 400 people in major infrastructure projects around Australia, goes into voluntary administration (06 August 2018). More...

MBA: Builders upbeat despite moderating housing market
Builders remain relatively upbeat despite the moderating housing market, according to the latest real time snapshot of business confidence in the building industry (02 August 2018). More...

Commonwealth moves to ensure subcontracts on Government projects are paid in 30 days or less
The Australian Small Business and Family Enterprise Ombudsman, Kate Carnell, commends the Department of Finance for listening to contributors and changing the "Subcontractor" clause in its Commonwealth standard payment terms to include payment terms of 30 days or less (02 August 2018). More...

Federal Court makes first personal payment order against CFMEU repeat offender
Following a landmark ruling by the High Court earlier this year the Full Federal Court has today ordered CFMEU official Joseph Myles to personally pay a penalty of $19,500. Today's order prevents Mr Myles from seeking any financial benefit from the CFMEU to pay the penalty (02 August 2018). More...

Building approvals rebound as property sector shows resilience
If the property sector was starting to feel the chilled winds of a slowdown it wasn't evident in June, with developers winning approval for more than 19,000 new dwellings (31 July 2018). More...

Prefab construction is a godsend for disaster response
Prefabricated construction techniques show promise as long-term solutions for rebuilding disaster zones in remote and rural locations, according to Monash University professor Mehrdad Arashpour (31 August 2018). More...

Victoria displaces New South Wales as nation's strongest economy, with Western Australia still lagging
Victoria eases ahead of New South Wales to number one spot in CommSec's "State of the States" economic rankings, while Western Australia continues to lag in last place as the mining boom unwinds (30 July 2018). More...

New South Wales

Proposed ban on the use of certain types of aluminium composite panels
New South Wales Fair Trading Commissioner, Rose Webb, has today given notice of her intention to impose a building product use ban under the Building Products (Safety) Act 2017. It is an offence for a person to contravene a building product use ban or to represent that a building product is suitable for use in a building if its use would contravene the ban. Corporations can be fined up to $1.1 million and individuals up to $220,000 (10 August 2018). More...

Fair Trading reforms set to deliver big benefits for New South Wales consumers
Consumers are set to save big on time and money, and have disputes with businesses resolved quicker, thanks to new Fair Trading powers. Minister for Better Regulation Matt Kean said the Fair Trading Legislation Amendment (Consumer Guarantee Directions) Bill, granting the new powers, would be introduced into Parliament this week (08 August 2018). More...


Regional Queensland continues comeback
Building approvals have surged across Queensland, with the latest figures from the Australian Bureau of Statistics showing house approvals up 27 per cent and units up 60 per cent for the month of June (09 August 2018). More...

Government moves ahead on Kangaroo Point pedestrian bridge
The Queensland government will put money toward developing a business case for the Kangaroo Point Green Bridge. The Palaszczuk government is working with 22 local governments and industry to assess 40 new infrastructure proposals including an Ipswich stadium business case and a business case for a Beaudesert Library (07 August 2018). More...


CBD and South East Light Rail: Key Sources
New South Wales Parliament; Issues Backgrounder 2/2018 by Lenny Roth: August 2018
This paper contains a collection of key sources on the CBD and South East Light Rail project, including government publications, parliamentary material, and media articles. More...

ACI Construction Briefs
A fortnightly communication highlighting key updates related to Australia's construction industry (06 August 2018). More...

In practice and courts

ABCC: Security of payments – nation-wide campaign commences
The ABCC has begun a nation-wide campaign to educate contractors on their responsibilities to pay their subcontractors on time under the Code for the Tendering and Performance of Building Work 2016. It's important that contractors meet their obligations under the Code, otherwise they risk possible sanctions from tendering for Commonwealth funded projects (02 August 2018). More...

ABCC: Information at your fingertips
The ABCC has now launched its free app for mobile devices. ABCC On Site enables people on building sites to have access to information at their fingertips. More...

Infrastructure Priority List - Call for submissions
Infrastructure Australia is seeking submissions for the next update of the Infrastructure Priority List (IPL), which will be published in February 2019. Proposals for all types of infrastructure, including programs of related works and programs for network optimisation must be received before 31 August 2018. More...

prefabAUS Conference 2018
11th - 12th September, 2018 Brisbane Convention & Exhibition Centre Early bird registration closes on 30 June. More...


Goodwin Street Developments Pty Ltd v DSD Builders Pty Ltd [2018] NSWSC 1229
BUILDING AND CONSTRUCTION – application to quash adjudicator's determination under Security of Payment Act – whether payment claim invalid as attachment to supporting statement not included – no requirement for such attachment on the facts of this case.
BUILDING AND CONSTRUCTION – whether adjudicator failed to discharge her statutory functions in good faith – statutory formulation requires certain specified matters be given weight as fundamental elements in the determination – necessary to consider adjudicators' reasoning in light of the compressed time constraints in which they are created – importance of not overzealously or mechanically applying the description of the adjudicators' task explained in SSC Plenty Road v Construction Engineering (Aust) [2015] VSC 631 – fair reading of the adjudicator's reasons in context demonstrates no jurisdictional error.
BUILDING AND CONSTRUCTION – whether builder should be prevented from receiving adjudicated amount – where owner claims to have a substantial offsetting claim – whether owner would be prejudiced if payment out of court is ordered due to insolvency risk of builder – where Security of Payment Act effects a statutory transfer of risk from builder to owner pending final determination – necessary to point to a further risk than that inherent in the statutory allocation to justify the granting of a stay – no such grounds established.

Mineralogy Pty Ltd v BGP Geoexplorer Pte Ltd [2018] QCA 174
GUARANTEE AND INDEMNITY DISCHARGE OF SURETY ALTERATION OF OBLIGATION GENERALLY where the respondent entered into a contract to provide services for reward to a third party where the appellant entered into a guarantee with the respondent guaranteeing the third party's obligation under the contract where the respondent made demand under the guarantee for debts owing under the contract where, in the proceeding below, the appellant argued that variations made to the contract had the effect of discharging it from the guarantee where the learned primary judge found that variations made to the contract did not have the effect of discharging the appellant from the guarantee where the appellant argued the primary judge erred by failing to construe the guarantee strictissimi juris whether the primary judge erred in finding that variations made to the contract did not have the effect of discharging the appellant from the guarantee.
CONTRACTS GENERAL CONTRACTUAL PRINCIPLES CONSTRUCTION AND INTERPRETATION OF CONTRACTS INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS where the respondent entered into a contract to provide services for reward to a third party where the appellant entered into a guarantee with the respondent guaranteeing the third party's obligation under the contract where the respondent made demand under the guarantee for debts owing under the contract where, in the proceeding below, the appellant alleged that the third party was not liable under the contract because there was unsatisfactory performance of the respondents obligations under the contract where the contract between the respondent and the third party contained a provision enabling the third party to withhold payment due to the respondent for unsatisfactory performance of the contract where the learned primary judge found that the third party, and therefore the appellant, was obliged to pay the amount due under the contract whether the primary judge erred in finding that the respondent was not guilty of unsatisfactory performance and that its conduct did not amount to a breach or anticipatory breach of the principal contract.
GUARANTEE AND INDEMNITY THE CONTRACT OF GUARANTEE MISREPRESENTATION OR NON-DISCLOSURE where the respondent entered into a contract to provide services for reward to a third party where the appellant entered into a guarantee with the respondent guaranteeing the third partys obligation under the contract where the respondent made demand under the guarantee for debts owing under the contract where the appellant alleged that the respondent misrepresented to the third party and the appellant that the respondent had the skill and competence to provide a report as to the prospective existence and volume of resources of oil and condensate where, in the proceeding below, the appellant argued that it was entitled to relief under s 87 of the Trade Practices Act 1974 (Cth) declaring the contract to be void ab initio where the learned primary judge found that the respondent did not engage in misleading and deceptive conduct whether the primary judge erred in rejecting the claim of misleading or deceptive conduct.

Coliban Heights Pty Ltd v Citisolar Vic Pty Ltd [2018] VSCA 191
CONTRACTS – Australian Consumer Law – Contract for supply of services – Right to terminate contract for 'major failure' pursuant to Australian Consumer Law, s 267(3)(a) – Whether right to terminate contract exercised – Goods connected with services deemed rejected on termination of contract pursuant to Australian Consumer Law, s 270(1)(c) – Acceptance of goods connected with services inconsistent with termination of contract – Australian Consumer Law, ss 267, 269, 270; Australian Consumer Law and Fair Trading Act 2012, s 8.
JUDICIAL REVIEW – Appeal on question of law – Question of law founds jurisdiction of Court to hear appeal – No question of law articulated in originating process – Notice of appeal requires setting out of questions of law – Victorian Civil and Administrative Tribunal Act 1998, s 148; Supreme Court (Miscellaneous Civil Proceedings) Rules 2008, r 4.06(1)(b)(v).

Vanguard Development Group Pty Ltd v Promax Building Developments Pty Ltd & Anor [2018] VSC 386
BUILDING CONTRACTS – Building and Construction Industry Security of Payment Act 2002 (Vic) – Where 'final claim' issued after termination of contract – Whether valid reference date – No reference date existed such that jurisdictional error made – Whether further error committed in failing to assess alleged defects which existed at time of earlier adjudication but only identified subsequently – Further jurisdictional error found.

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
Scott Alden
Christine Jones
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