Australia: Residential Focus – 29 August 2018: Part 2

Last Updated: 31 August 2018
Article by Christine Jones and Divya Chaddha
Most Read Contributor in Australia, September 2018

In the media

Policymakers push for cladding standard
Ministers have asked Standards Australia to develop an Australian Standard for permanent labelling of aluminium composite panels. A Building Ministers' Forum (BMF) meeting, also attended by industry representatives – has agreed the issue is "critical" and the labelling will be mandated through the National Construction Code (20 August 2018). More...

Police issue warning after truckloads of waste containing asbestos goes missing
A NSW man faces criminal charges after about 17,000 tonnes of asbestos-filled material disappears from a major Sydney development site (23 August 2018). More...

In practice and courts

ABCB: Save the date: Accessible Housing National Consultation Forums 2018
National consultation forums relating to accessible housing are coming. The forums will focus on the ABCB's Accessible Housing Options Paper, which will be released in advance of the consultation forums (22 August 2018). More...

NCC 2019 energy efficiency provisions
The current draft of the NCC 2019 energy efficiency provisions is broadly consistent with the Public Comment Draft. The current draft of the NCC 2019 energy efficiency provisions remains subject to the ABCB's committee-in-confidence processes until it is provided to the Board for approval later this year (14 August 2018). More...

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...

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

New South Wales

BPB: New certification provisions of the EP&A Act postponed until 2019
Commencement of Part 6 of the Environmental Planning and Assessment (EP&A) Act 1979, which covers building and subdivision certification, has been postponed until 1 September 2019 (17 August 2018). More...

BPB: Read our Cert Alert newsletter issue 4
'Cert Alert' is your regular update on work by the Board, legislative change, events, training and consultation opportunities (16 August 2018). More...

BPB: New A1, A2, A3 and B1 certification responsibilities under the Infrastructure SEPP
The Building Professionals Regulation 2007 has been amended to allow A1, A2, A3 and B1 certifiers to certify water and sewerage lead-in infrastructure as complying development under the Infrastructure SEPP (14 August 2018). More...

Proposed ban on the use of certain types of aluminium composite panels
Under the Building Products (Safety) Act 2017, the intended ban will prohibit the use of aluminium composite panels with a core comprised of more than 30 per cent polyethylene by mass in any external cladding in certain multi-storey buildings. There are exceptions for products that can pass stringent tests that meet certain Australian Standards. The ban is intended to come into force on 15 August 2018 (10 August 2018). More...

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...

Cases

Mawbey v Commissioner for Fair Trading [2018] NSWCATOD 141
(1) The decision that the applicant is guilty of improper conduct is affirmed.
(2) The decision to take disciplinary action against the applicant is varied so that the applicant is disqualified from holding any contractor licence or authority under the Home Building Act 1989 until 1 January 2019.
ADMINISTRATIVE REVIEW – Home Building – disciplinary action – whether electrician effected reverse polarity – whether guilty of improper conduct – whether fit and proper person – penalty to be imposed.
Electricity (Consumer Safety) Act 2004; Home Building Act 1989; Home Building Regulation 2004.

Magerovski v Commissioner for Fair Trading, Department of Finance, Services and Innovation; Service Today NSW v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2018] NSWCATAD 192
(1) The Respondent's Reviewable Decisions of 19 July 2017 are set aside.
ADMINISTRATIVE REVIEW – Home Building – Disciplinary action – improper conduct – knowledge - fit and proper person – grounds for refusal - penalty.
Administrative Decisions Review Act 1997; Civil and Administrative Tribunal Act 2013; Crimes Act 1900.
Home Building Act 1989
; Licensing and Registration (Uniform Procedures) Act 2002.

Jones v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2018] NSWCATOD 142
ADMINISTRATIVE LAW – Administrative Review - Home Building Act 1989 – application for contractor licence endorsed to be equivalent to a supervisor certificate – application of Instrument issued by the respondent Commissioner – whether the Tribunal is satisfied the applicant has the necessary breadth of experience – need for third party verification of experience. Decision affirmed.
Administrative Decisions Review Act 1997 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Home Building Act 1989 (NSW); Home Building Regulation 2014 (NSW).

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).

Forrest v Jordan [2018] FamCA 625
FAMILY LAW – PROPERTY – Where the husband seeks an order that the wife be solely liable for all future claims under the Home Building Act 1989 (NSW) – Where renovation of the property was a joint undertaking by the parties – Where the Court considers it to be a shared responsibility – Where an order is made for the parties to share the costs of any future claim. Family Law Act 1975 (Cth) ss 75, 79; Home Building Act 1989 (NSW).

Anderson v J W Lanfranchi Pty Ltd [2018] NSWCATAP 195
APPEAL – whether error of law – failure to provide proper reasons.
HOME BUILDING CLAIM – whether Schedule of Works formed part of the contract.

Golden International Trading Pty Ltd v Independent Pricing and Regulatory Tribunal [2018] NSWCATAD 189
ADMINISTRATIVE LAW – merits review – failure to conduct audit as required – cancellation of accreditation – appropriate sanction.

Gallagher v Start Construction Pty Limited [2017] NSWDC 440
ASSESSMENT – building contract – defects – omissions – assessment of damages – only one co-owner a party – no electrical plan – builder's expertise – costs of individual defects not specified.

Legislation

New South Wales

Consultation or Exposure Bills – 10 August 2018
Building and Development Certifiers Bill 2018

Fair Trading Legislation Amendment (Consumer Guarantee Directions) Act 2018 (NSW)

Home building compensation (contribution) AIP guidelines (2018-445) (17 August 2018)

Strata Schemes Management Amendment (Building Defects Scheme) Bill 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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