Australia: Residential Focus - 9 October 2018: Part 2

Last Updated: 12 October 2018
Article by Christine Jones and Divya Chaddha
Most Read Contributor in Australia, November 2018

In the media

New home sales signal downturn in building to continue in 2019
HIA New Home Sales are among a string of housing indicators signalling the national downturn in new home building will continue in 2019, commented HIA Economist, Diwa Hopkins (04 October 2018). More...

Residential approvals at lowest levels in two years
Recent data by the ABS reveals monthly housing construction approvals in August are at the lowest level since October 2016 (04 October 2018). More...

Off-the-plan apartment pain as property prices fall
Off-the-plan apartment buyers are being hit with the double-whammy of tougher home loan rules and falling property prices, leaving many struggling to complete their purchases (03 October 2018). More...

HIA: Bi-partisan support for a Federal Housing Minister
Appointing a Housing Minister is one of 37 recommendations contained in the "Building Up and Moving Out" report released yesterday by the House of Representatives Standing Committee on Infrastructure, Transport and Cities. The Report also lists a number of actions that a new Minister for Housing would be responsible for (20 September 2018). More...

Tradies to save $52 million thanks to Better Business reforms
Tradies will save $52.3 million over 10 years from not having to renew their licenses every three years, as part of the NSW Government's Better Business reforms. Minister for Better Regulation Matt Kean said it followed extensive public consultation, which also showed significant support for retaining 13 home building licenses (04 October 2018). More...

Dodgy certifiers on notice with new laws
Conflicts of interest between building certifiers and developers will be stamped out by tougher regulations being proposed in NSW. Minister for Better Regulation Matt Kean said an options paper is being released which sets out new ways of improving transparency around the appointment of certifiers (02 October 2018). More...

Published - articles, papers, reports

Housing diversity: Adapting 1.0 infrastructure for 3.0 lives
Alysia Bennett; ArchitectureAU
For greater housing diversity, new typologies can be designed to support emerging household needs over time. Additionally, architects can explore the notion of creating more diversity in available housing stock (2 October 2018). More...

Australian Bureau of Statistics
03/10/2018 Building Approvals, Australia, Aug 2018 (cat no. 8731.0)
26/09/2018 Engineering Construction Activity, Australia, Jun 2018 (cat no. 8762.0)

In practice and courts

Senate Inquiry into the Treasury Laws Amendment (Improving the Energy Efficiency of Rental Properties) Bill 2018 (295KB) (27 September 2018).

Report for Achieving Low Energy Homes (367KB) (25 September 2018).

Building and Construction Industry Security of Payment Amendment Bill 2018 and Securing Payments in the Building and Construction Industry - A Proposal for 'Deemed' Statutory Trusts - NSW (970KB) (21 September 2018).

ABCB Accessible Housing Options Paper: consultation
The ABCB's Accessible Housing Options Paper has been released for public consultation. The Options Paper provides a preliminary menu of options and costings on the possible inclusion of a minimum accessibility standard for housing in the NCC. Feedback on the Options Paper is invited until Friday 30 November 2018. More...

BPB: Options to improve and strengthen certifier independence
Public consultation on the Options Paper – 'Improving Certifier Independence' is open until 30 October 2018. The options paper is seeking feedback on three methods for appointing certifiers that will increase certifier independence. NSW consumers can check the register of accredited certifiers through the BPB website.

New dates for Environmental Planning & Assessment Act Updates
Councils, certifiers and other industry practitioners have more time to implement some of the recent EP&A Act updates. Changes affect new provisions for building and subdivision certification, Local Strategic Planning Statements for councils in the Greater Sydney Region and Community Participation Plans. While most of the changes will commence on 1 March 2018, there will be a number of other changes that will involve further design and consultation from mid to late 2018 outlined here.


The Owners - Strata Plan 81837 v Multiplex Hurstville Pty Ltd [2018] NSWSC 1488
BUILDING AND CONSTRUCTION – separate questions – "owner" – Home Building Act 1989 – whether development manager and another party named in development management agreement were owners and thus developers of land for the purposes of the Home Building Act 1989.
BUILDING AND CONSTRUCTION – separate questions – " contract to do residential building work" – Home Building Act 1989 – development management agreement – whether development management agreement is a contract to do residential building work.
MISLEADING OR DECEPTIVE CONDUCT – separate questions - representations made to principal certifying authority under Environmental Planning and Assessment Act 1979 – whether made in trade or commerce.
Building Professionals Act 2005 (NSW). Separate questions each answered "No".
Environmental Planning and Assessment Act 1979 (NSW); Fair Trading Act 1987 (NSW).
Home Building Act 1989 (NSW); Home Building Amendment (Warranties and Insurance) Act 2010 (NSW); Home Building Amendment Act 2011 (NSW).

Sunrise Pools Australia Pty Ltd v Gregory [2018] NSWCATAP 232

  • The appeal is dismissed.
  • The appellant is to pay the respondent's costs of the appeal as agreed or assessed.

APPEAL – costs – substantive proceedings settled before hearing – discretion to order costs.
Civil and Administrative Tribunal Act 2013; Civil and Administrative Tribunal Rules 2014; Home Building Act 1989.

Bartel v Ryan [2018] NSWCATAP 231
BUILDING AND CONSTRUCTION – whether Tribunal erred in denying procedural fairness to a party who was legally represented at the hearing. In the Decision, the Tribunal dismissed the Builder's proceedings. In the Homeowner's proceedings, the Builder was ordered to pay Ms Ryan $62,300.00.

White v Department of Fair Trading [2018] NSWCATAD 231
HOME BUILDING ACT – application for a contractor licence in the category building – standards issues under clause 28(1) - requirement to demonstrate practical experience – "gained as an employee of or a person otherwise lawfully engaged by, the holder of a contractor licence" – evidence of referees.

Syed Ahmad Shoaib Ali Pty Ltd v Jandson Pty Ltd; Jandson Pty Ltd v Syed Ahmad Shoaib Ali Pty Ltd [2018] NSWCATAP 228
APPEALS – Arguments not addressed – failure to accord natural justice – damages – liability under contract - whole contract not in evidence – proper construction of contract - deposit – implied term - repudiation by depositor – forfeiture of deposit BUILDING AND CONSTRUCTION – meaning of "residential building work" in ss 92 and 94 of the Home Building Act 19898 (NSW) – requirements for insurance – issue and cancellation of insurance – argument raised in final submissions – procedural fairness - quantum meruit GUARANTEE AND INDEMNITY – construction and effect.
Civil and Administrative Tribunal Act 2013 No 2 (NSW); Home Building Act 1989 (NSW), ss 48A, 48K, 92, 94, 98(1), 99(1), 102, 103B, sch 1 cl 2(1); Home Building Amendment Act 1999 (NSW); Home Building Regulation 2014, reg 40; Insurance (Application of Laws) Act 1986 (NSW), s 5; Insurance Contracts Act 1984 (Cth), s 59
Interpretation Act 1987 (NSW), ss 33, 34

Ghazal v Masterton Homes Pty Ltd [2018] NSWCATAP 227
APPEAL: Leave to appeal, challenge to interlocutory decision affecting final decision, refusal to grant adjournment, leave refused.

Islam v Javam [2018] NSWSC 1430
CIVIL PROCEDURE – appeal from Local Court – application for leave to appeal – application for leave to appeal out of time – where amount in issue is disproportionate to the costs incurred – where appeal is arguably not in the best interests of the parties.

Stevenson v Ashton [2018] NSWCATCD 25
BUILDING AND CONSTRUCTION – Home Building – successor in title seeking compensation for allegedly defective work from owner-builder – when work was complete – defective work – whether major defect – whether defect in a major element – what constitutes waterproofing – cost of rectification – whether work order should be made in respect of defective work carried out pursuant to owner-builder permit
WORDS AND PHRASES – "major defect" - "major element" - "waterproofing".

Tom v Jenkins (No. 2) [2018] NSWCATCD 24
Costs – 'Calderbank' offers.
Jurisdiction to make costs orders.

Bellerive Homes Pty Ltd v FW Projects Pty Ltd [2018] NSWSC 1435
CIVIL PROCEDURE – Judgment obtained by plaintiff upon the filing of an adjudication certificate under Building and Construction Industry Security of Payment Act 1999 (NSW) – Application by defendant to stay execution of judgment pending determination of proceedings in the Equity Division – Whether stay should be granted – Discretionary factors.

Petropoulos v CPD Holdings Pty Ltd t/as The Bathroom Exchange (No 2) [2018] NSWCATAP 233
HOME BUILDING – where statutory warranty breached in relation to size of showers – whether damages or rectification appropriate remedy.


Regulations and other miscellaneous instruments
Conveyancing (General) Amendment (Optus Fixed Infrastructure Pty Limited) Regulation 2018 (2018-573) — published LW 5 October 2018 - The object of this Regulation is to prescribe Optus Fixed Infrastructure Pty Limited as a prescribed authority for the purposes of section 88A of the Conveyancing Act 1919 so that easements without dominant tenements may be created in favour of that corporation.

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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