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, September 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.

Cases

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.

Legislation

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Christine Jones
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions