Australia: Construction & Infrastructure News - 29 August 2018

Last Updated: 31 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

ABCC officers visit Pacific Complete project to talk about security of payment responsibilities
Australian Building and Construction Commission officers will be in northern New South Wales talking to contractors involved in the $4.3 billion Pacific Complete project about their security of payment responsibilities. While visiting the area the officers will also conduct compliance checks of contractors involved in the project to make sure they are doing the right thing by their subcontractors (21 August 2018). More...

New South Wales

Western Sydney Airport preparing for take-off
Western Sydney Airport has reached another major milestone, with companies now invited to bid for a major contract to undertake the mammoth task of clearing and levelling the site (16 August 2018). More...

Queensland

Adani Queensland mine rail line financing 'close'
Adani is close to locking in the finance for a rail line to service its $16.5 billion Queensland coal mine, the son of the company's owner says. Previously, Australia's big four banks refused to put up money for the mine, forcing the company to look for funding overseas (18 August 2018). More...

Adani Indigenous challenge dismissed by Federal Court, Government could cancel mine native title
Traditional owners who oppose the Adani mine have appealed to the Queensland Government not to permanently extinguish their native title rights before they take their case to the High Court (17 August 2018). More...

Building regulation for cladding
From 1 October 2018 new regulation will come into force requiring building owners to take action to address combustible cladding. The QBCC will enforce the program and ensure that building owners undertake the appropriate assessments within the required time frames (16 August 2018). More...

Victoria

New solar jobs in the valley to keep powering Victoria
A re-elected Andrews Labor Government will put the Latrobe Valley at the centre of the booming solar industry with a new Morwell-based government agency, Solar Victoria, to deliver our $1.3 billion Solar Homes program (24 August 2018). More...

VBA wins right to appeal Federal Court ruling on Mutual Recognition
The Victorian Building Authority (VBA) has won the right in the High Court of Australia to appeal a decision of the Federal Court that overturned the AAT decision to permit character to be taken into account in relation to applications for registration under the Mutual Recognition Act 1992 (Cth) (24 August 2018). More...

$5bn welcome contribution to make MARL a reality
The infrastructure sector has welcomed the Andrews Government's $5bn commitment to build the Melbourne Airport Rail Link (23 August 2018). More...

Published

BMF Communique August 2018
The Building Ministers Forum have issued a communique following their meeting on 10 August 2018. The Forum discussed their views on the 'Building Confidence – Improving the effectiveness of compliance and enforcement systems for the building and construction industry across Australia' Report (Building Confidence Report). The Building Confidence Report makes 24 recommendations fundamental to the effective delivery of Australia's National Construction Code (NCC). Ministers also continued their discussion of the national Review of Security of Payment Laws: Building Trust and Harmony. The BMF agreed to work collaboratively to consider ways to improve consistency between security of payment regimes across jurisdictions(21 August 2018). More...

In practice and courts

ABCC Reminder: Security of payments – nation-wide campaign commences in August
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. More...

New South Wales

BPB: Building and Development Certifiers Bill 2018
The Building and Development Certifiers Bill 2018 seeks to strengthen the certification system in NSW. Comments are invited on the proposed Building and Development Certifiers Bill 2018 by 4 September 2018. More...

Queensland

QBCC: Contractors urged to follow product manufacturer's instructions
Technical Standards officers from the QBCC regularly visit active building sites across Queensland to audit the compliance of works with the National Construction Code, relevant Australian Standards and product manufacturer's installation requirements. Ensuring that sub-contractors engaged were appropriately licensed to perform the contracted works can be easily done online by conducting a licensee search (24 August 2018). More...

QBCC: Licences required for those who install and service gaseous fire suppression systems
Queensland technicians and companies who install, decommission, service or maintain gaseous fire suppression systems or portable extinguishers containing ODS or SGG must ensure they also hold the necessary licences and permits as required by the Australian Government. This is in addition to the QBCC licensing requirements (22 August 2018). More...

Cases

Europlex Pty Ltd v Unique Living Australia Pty Ltd; Unique Living Australia Pty Ltd v Europlex Pty Ltd [2018] NSWSC 1291
BUILDING AND CONSTRUCTION – agreement to develop property at Terrigal - agreement to share any profit – whether any profit yet achieved – whether like agreement exists in relation to further property at East Gosford.
CONTRACTS — formation — consideration – where parties entered oral agreement to develop property and share profit – where agreement confirmed by email – where parties subsequently executed formal building contract – whether formal contract is binding – whether formal contract is a sham.
COMMERCE – misleading or deceptive conduct —whether directors of builder made representations that were misleading or deceptive – whether representee understood those representations were made on behalf of company of which representor a director –whether representations relied on.

Owners of Strata Plan 80458 v TQM Design & Construct Pty Ltd [2018] NSWSC 1304
BUILDING AND CONSTRUCTION – ss 18B, 18D of the Home Building Act 1989 (NSW) – statutory warranties as to quality of home building work – where plasterboarding, air conditioning and acoustic installation work in apartments is defective – whether the defendant builder did defective building work – the defendant suspended building work under the Building and Construction Industry (Security of Payment) Act 1999 (NSW) before being excluded from the site and not being allowed to complete the work – whether the defects are 'temporary disconformities' and therefore not in breach of the implied warranties contained in s 18B – loss or damage occasioned by defective building work is to be assessed by reference to established contractual principles of breach and causation – whether the plaintiffs' loss was caused by the defendant's building work.
STATUTORY CONSTRUCTION – s 18D(1) – meaning of the phrase 'the same rights as the person's predecessor in title in respect of the statutory warranty' – whether s 18D gives a successor in title no rights where loss was not suffered by the predecessor in title caused by breaches of s 18B.
DAMAGES – rule against double compensation – the plaintiffs entered into a Deed of Settlement with the developer's home building insurer and received payment in respect of defective work to the apartments – concurrent claim – claims made against the defendant were made in the same terms as those against the developer's insurer – whether plaintiffs have already been compensated for the loss which they allege was caused by the defendant.
HELD – plaintiffs failed to establish that defective work the subject of their claim was done by the defendant and the extent of the defects attributable to the defendant – defective work was not a temporary disconformity – the developer suffered no loss because it broke the chain of causation between any defective work done by the defendant and damage suffered by the developer, by taking the work out of the hands of the defendant – the right of the plaintiffs to sue the defendant for breach of the implied warranties is unaffected by the position between the developer and the defendant under their building contract. Dismissed.
Home Building Act 1989 (NSW) – Building and Construction Industry (Security of Payment) Act 1999 (NSW).

Intensia Pty Ltd v Nichols Constructions Pty Ltd [2018] QCA 191
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – where the parties contracted for the sale of the land – where it was held at first instance that the appellant's termination of the contract was not justified – where the appellant argued on appeal that its termination was justified as the respondent had breached cl 7.4(3)(a)(ii) of the standard REIQ contract in its warranty that it was not aware of any facts or circumstances that may lead to the land being classified as contaminated land under the Environmental Protection Act 1994 (Qld) at the time of contract – where the respondent had demolished dwellings on the land before entry into the contract – where, after the date of contract, the demolition of the buildings caused the contamination of the land with asbestos – whether the phrasing "may lead to" should be construed broadly to incorporate mere possibility – whether the respondent had breached cl 7.4(3)(a)(ii) such as to give the appellant a right to terminate.

Legislation

Building and Other Legislation (Cladding) Amendment Regulation 2018 (Qld)
The Regulation is made under the Building Act 1975, and the State Penalties Enforcement Act 1999. The policy objectives of the Regulation are to determine the extent of the use of potentially combustible cladding on existing private buildings in Queensland and raise awareness with building owners of the risks associated with potentially combustible cladding. The Regulation commences on 1 October 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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Authors
Suzy Cairney
Kyle Siebel
Scott Alden
Christine Jones
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