Australia: Inside track: Construction & Infrastructure - 24 October 2018

Last Updated: 29 October 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, October 2018

In the media

CFMMEU fined $313,000 and ordered to take out advertisement for threatening to "smash" contractors
The Federal Court has ordered the CFMMEU and seven of its officers to pay penalties totalling $313,000 for their unlawful conduct against a number of concreting companies at construction sites in Sydney in 2014 and 2015 (18 October 2018). More...

New report shows need for greater transport infrastructure investment
The Australian Automobile Association has released the country's first congestion benchmarking report which has shown a need for greater investment in transport infrastructure. The Road Congestion in Australia report uses mapping and location data to monitor and benchmark road congestion in all capital cities, revealing that average speeds have slowed by up to eight per cent since January 2013 (16 October 2018). More...

New South Wales

$20m in compensation to be paid to losing WestConnex bidder
The loser of the tender to build an underground motorway junction in Sydney's inner west as a part of WestConnex will receive up to $20 million in compensation from New South Wales taxpayers (17 October 2018). More...

Sydney's transport planning fundamentally flawed
Referring to a number of projects currently underway, including Westconnex, the Metro Northwest and CBD and South East Light Rail projects, John Austen, a transport specialist, claims that planners are either ignoring or are ignorant of the basic principles of transport planning (16 October 2018). More...

Queensland

$600 million Works for Queensland program supports 12,000 regional jobs
The Palaszczuk Government's $600 million Works for Queensland program is supporting 12,152 jobs and delivering important new infrastructure in regional Queensland (17 October 2018). More...

Central Queensland building company goes into administration
Devastated tradesmen are told they no longer have jobs at a major central Queensland builder. Sub-contractors say they never expect to be paid money owed (17 October 2018). More...

QBCC to commence industry ban action against John Murphy; suspends JM Kelly building licences
The QBCC has begun action to exclude company director John Murphy from the building industry, after related entities entered administration. QBCC Commissioner, Brett Bassett, said the QBCC had started exclusion action against Mr Murphy in 2016, following the liquidation of another company (17 October 2018). More...

Victoria

AECOM secures AU$70 million lead designer role to deliver Melbourne's Metro Tunnel Project
AECOM, a premier, fully integrated global infrastructure firm, will provide the full range of design services as part of the Rail Infrastructure Alliance which signed a contract with the Victorian Government worth approximately AU$1 billion (18 October 2018). More...

Construction tender awarded for Ballarat GovHub
The Victorian Government has awarded the tender for the construction of the $100 million GovHub in Ballarat (16 October 2018). More...

Published - articles, papers, reports

ABCC Industry update September - October 2018
Industry update is our bi-monthly online newsletter. It provides updates on the latest activities of the ABCC, industry trends, and emerging issues (09 October 2018).

In practice and courts

Victoria

VBA: Builder insolvency - Information sheet
Do you know what to do if your builder becomes insolvent while building or renovating your home? The VBA has published a step-by-step guide for consumers to help them navigate this challenging and stressful situation (19 October 2018).

New South Wales

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. New South Wales consumers can check the register of accredited certifiers through the BPB website. More...

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.

Queensland

MBQ: New plumbing framework for Queensland
The new Plumbing and Drainage Act 2018 is now in force. The Act replaces the Plumbing and Drainage Act 2002 and establishes a new legislative framework for plumbing and drainage in Queensland (19 October 2018). More...

Cases

Australia Avenue Developments Pty Ltd v Icon Co (NSW) Pty Ltd [2018] NSWSC 1578
BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) ("SOP Act") – payment claims – validity of payment claim – supporting statement under SOP Act, s 13(7) and (9) – whether validity of payment claim requires that the supporting statement be "made" on the same day as the payment claim – whether validity of payment claim requires that the supporting statement declare that all subcontractors have been paid up to the date on which the payment claim is "served".
BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) ("SOP Act") – adjudication of payment claims – scope and parameter of payment claim – allowances made by adjudicator that were not raised in the payment claim – whether the adjudicator erred in making allowances not raised in payment claim – whether the adjudicator exceeded their jurisdiction in making allowances.

Cenric Group v TWT Property Group [2018] NSWSC 1570
CONTRACT – Where parties entered into various contractual arrangements to harvest sandstone – which party is entitled to share in royalties from that harvesting – on what terms must the royalties be paid – when must payment of royalties be made. CONTRACT – whether an oral agreement or variation was made – enforceability and effect of that variation – whether contracts validly terminated – construction of the terms of contracts and subcontracts – importance of not using a hindsight view of commerciality to disregard the terms of the contract. BUILDING AND CONSTRUCTION – where milestone dates were missed – liquidated damages – application of prevention principle prevents award of such damages.

Cragcorp Pty Ltd v Qld Civil Engineering Pty Ltd & Ors [2018] QSC 203
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – OTHER MATTERS – Where the applicant seeks a declaration that the adjudication application of the first respondent to the third respondent is void, either in whole or in part - where the applicant seeks a declaration that the adjudication decision of the second respondent pursuant to the Building and Construction Industry Payments Act 2004 (Qld) is void, either in whole or in part – where the applicant seeks a declaration that the payment claim made by the first respondent to the applicant is void or is of no effect for the operation of the Building and Construction Industry Payments Act 2004 (Qld) – where the second respondent was engaged by the applicant as a subcontractor for a construction project – where the second respondent lodged a payment claim that was subsequently disputed by the applicant – where the applicant argues that the Adjudication Decision is affected by jurisdictional error – whether the decision was affected by jurisdictional error – whether the adjudicator failed to perform the statutory task of valuation – whether the adjudicator denied the applicant natural justice and failed to give proper written reasons.

Bourne v Queensland Building and Construction Commission [2018] QSC 231
ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES – GENERALLY – Where the respondent paid money to a former client of the applicant's company pursuant to a statutory insurance scheme – where the applicant owed that money as a debt to the respondent – where the respondent commenced proceedings to recover that debt – where the applicant sought judicial review of the respondent's decision to commence those proceedings – where the respondent brought an application to have the applicant's judicial review application dismissed pursuant to s 48 of the Judicial Review Act 1991 (Qld) – whether the decision to commence proceedings was judicially reviewable – whether the decision to commence proceedings was of an administrative character made under an enactment.

Cheshire Contractors Pty Lt v Everett [2018] QSC 228
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – REPUDIATION AND NON-PERFORMANCE – where there was an oral contract for works – where full payment for works was not made – where there were complaints of non-compliance of works performed – where there were complaints of other breaches of implied terms – whether the works were compliant – whether there were remedial works required – whether there was loss or damage occasioned.
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – where there was an oral contract for the commencement of works – where there were two phases to the works involved – where phase one was a work for pay engagement – where phase two had no substantive pay arrangement – where payment was to be by reference to hourly rates for phase two – where there existed a promise to delay the seeking of payment – whether that promise amounted to a promissory estoppel.
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – CONSTRUCTION OF PARTICULAR CONTRACTS – where there were two phases to the works involved – where there existed an oral contract for phase one works – whether a further oral contract, joint venture or new contract existed for further works – where there were works completed after payment in full was not received for phase one and other works completed– whether there existed any agreement for payment for the further works.

Legislation

Bills

National Housing Finance and Investment Corporation Amendment Bill 2018
18/10/2018 - The National Housing Finance and Investment Corporation Amendment Bill 2018 (the Bill) amends the National Housing Finance and Investment Corporation Act 2018 (the NHFIC Act) to establish a $1 billion special account to support the National Housing Finance and Investment Corporation (NHFIC).

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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