In the media
There are lessons to be drawn from the cracks that
appeared in Sydney's Opal Tower, but they extend beyond
building certification
The reasons for the cracked concrete that triggered the
evacuation - twice - of residents from Sydney's Opal Tower over
Christmas and the New Year are unknown and will take time to
properly establish. Opal is unusual; very few residential buildings
in Australia have ever been evacuated due to construction defects,
and fewer still because of structural cracking (10 January 2019).
More...
Opal Tower failure reveals "broken
system"
Building defects aren't unusual in Australian
construction, but what the crumbling Opal Tower highlights is the
vulnerability of builders and subcontractors of defective buildings
and the lack of protections for consumers who buy them (9 January
2018). More...
Apartment building bust picks up speed, with
'further falls' predicted
Australian construction trends are looking bleak as the
number of building approvals fall by almost a third since last year
— with the number of new apartment development plans halving
(9 January 2019). More...
Master Builders: New home approvals at 5-year low as
credit crunch bites harder
Building approvals figures for November 2018 published by
the ABS today indicate that 15,465 new dwellings were approved
during the month – a decline of 9.1 percent on October and
almost one third lower than 12 months ago (-32.8 percent) (9
January 2019). More...
When almost 1,700 construction businesses went bust in a
year, people like Joe paid the price
Several large corporate collapses in the building industry
are causing a world of pain for smaller contractors further down
the chain. Now, with the property market busting in Sydney and
Melbourne, things are about to get worse (23 December 2018).
More...
COAG misses opportunity to cut costs for consumers
The Green Building Council of Australia
(GBCA) is disappointed that the Council of
Australian Governments (COAG) Energy Council at
its meeting this week deferred a critical decision on increasing
the energy efficiency requirements within the National Construction
Code (21 December 2018). More...
New South Wales
NSW Government vows to 'throw the book' at dodgy
building certifiers after Opal Tower fiasco
Up to 30 per cent of certification work will be audited
every year in NSW as part of a crackdown on dodgy operators
following Sydney's Opal Tower fiasco (30 December 2018).
More...
Undischarged bankrupt and banned NSW builder charged
with making false and misleading statements to ASIC
The allegations relate to Mr Rixon lodging forms with ASIC
to register companies and appoint directors without their consent
or using fictitious director names and, upon registration of those
companies, lodging forms with ASIC to register business names (19
December 2018). More...
In practice and courts
Interim report on Opal Tower released
The NSW Government has released the preliminary findings
of its independent investigation into Opal Tower, in an interim
report prepared by Professors Mark Hoffman, John Carter and Stephen
Foster. More...
ABCC Alert: Review of the Building
and Construction Industry (Improving Productivity) Act
2016
The formal report on the independent review of the Building and
Construction Industry (Improving Productivity) Act 2016
(BCIIP Act) was tabled in Federal Parliament on
Thursday 6 December 2018. The review concluded that a cautious
approach should be taken to the question of amending the BCIIP Act
and 2016 Code. A copy of the full report and recommendations, and
the Australian Government's response can be found on the
Department of Jobs and Small Business website (14 December 2018).
More...
ABCB: The WaterMark Point of Sale Feasibility Study
(Summary Report) has been published
The Summary Report outlines the process, assessment
approach, findings and recommendations of the feasibility study of
point of sale regulation for the WaterMark Certification Scheme. The
study, undertaken in 2018, was commissioned to consider the nature
and extent of the 'problem' and to access the feasibility
of, and provide recommendations for, possible point of sale options
(11 December 2018). More...
NABERS: New waste rating for whole buildings
The NABERS waste whole building rating for offices is now
available (13 December 2018). More...
NABERS plans for 2019
Preparation for the inclusion of Commitment Agreements as
a Verification Method for office buildings into the National Construction Code 2019 (18
December 2018).
Opal Tower – Information for residents and
landlords: Fair Trading NSW
A fact sheet outlining rights and responsibilities for
residents and landlords following the Opal Tower evacuations.
Owners are covered by the statutory warranty protections. All
residential or partially-residential properties that are four or
more storeys and commenced construction after 1 January 2018 will
be covered under the Strata Building Bond and Inspections Scheme (5
January 2019). More...
BPB: Certification data reporting- CertAbility
'app-grade'
In early 2019 a web-based CertAbility app will replace the
mobile version for more efficient data reporting (20 December
2018). More...
BPB: Cert Alert newsletter issue 9
'Cert Alert' is your regular update on work by the
Board, legislative change, events, training and consultation
opportunities (20 December 2018). More...
BPB Annual Report 2017-18
The Building Professionals Board's annual report for
2017-18 is now available (20 December 2018). More...
Combustible Cladding Regulation
Under the new Regulations, owners of certain buildings
with external combustible cladding are required to register their
building with the NSW Government through the Cladding Registration
portal. For buildings occupied before 22 October 2018, the deadline
for registration is 22 February 2019. Owners of new buildings will
be required to register their building within four months of the
building first being occupied. 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.
Cascading deemed statutory trusts in the construction
sector
Australian Small Business and Family Enterprise
Ombudsman: 18 December 2018
Statutory trusts have been considered and proposed by a number
of inquiries as a means of ensuring prompt progress payments to
subcontractors, and ring-fencing payments in the event of
insolvency of their contractor. The ASBFEO has considered the
various arguments for and against cascading deemed statutory trusts
and, on balance, supports their implementation in the construction
sector. More...
ACI Construction Briefs
A fortnightly communication highlighting key updates
related to Australia's construction industry (26 November
2018). More...
Cases
Garside v Carroll
[2019] NSWCATAP 4
The application to adduce fresh evidence is refused.
The application for leave to appeal is refused and the appeal is
dismissed.
PRACTICE AND PROCEDURE – Leave to appeal – substantial
delay – inadequate explanation of delay – no
substantial prospects of success – fresh evidence –
evidence reasonably available at time or original hearing.
EVIDENCE – Dismissal of claim as evidence inadequate.
CONTRACTS – Finding of repudiation – no basis to set
aside.
This appeal concerns home building proceedings HB 16/36627
(original application).
Long v Metromix Pty
Ltd [2019] NSWCATAP 8
(1) A hearing of the application for legal representation
is dispensed with pursuant to s 50(2) of the Civil and
Administrative Tribunal Act 2013.
(2) Leave is granted to all parties to be legally
represented.
PRACTICE AND PROCEDURE – Representation – applicable
principles.
Civil and Administrative Tribunal Act 2013 (NSW);
Civil and Administrative Tribunal Rules 2014 (NSW);
Fair Trading Act 1987 (NSW); Home Building
Act 1989 (NSW)
Edwards v Department of Fair
Trading [2019] NSWCATOD 5
The decision under review is affirmed.
PROFESSIONS AND TRADES – Licensing and regulation –
whether a fit and proper person to hold a contractor licence
– whether convictions should be ignored because of passage of
time.
Home Building Act 1989 (NSW); Administrative
Decisions Review Act 1997 (NSW).
Quigg v O'Leary trading as
Building Habitats [2018] NSWCATAP
298
BUILDING AND CONSTRUCTION – Home building –
owners contracted separately with builder, waterproofer and tiler
– builder penetrated waterproofing while installing
balustrade – waterproofer not called to undertake second
stage waterproofing – responsibility of owners to arrange
contractors – no error of law – decision not against
the weight of evidence.
Eden Co Construction Pty Ltd v
Leed Engineering and Construction Pty Ltd
[2018] NSWSC 1882
CONTRACTS - Termination - breach of term - summons seeking
leave to appeal judgment for defendant in the Local Court -
plaintiff engaged as subcontractor to undertake construction work -
where clause of contact provided for procedure to terminate upon
breach, including three-day notice period to allow for
rectification of breach - plaintiff did not comply with safety
policy and directions - where defendant terminated under common law
- whether observance of safety policy essential condition or
intermediate term - whether clause stipulating procedure for
termination excluded common law right to terminate - summons
dismissed.
McIntyre v DRW Constructions Pty
Ltd; DRW Constructions Pty Ltd v McIntyre
[2018] NSWCATCD 58
Costs – apportionment of costs – Calderbank
letter – whether settlement offer unreasonably refused.
Wassim Hijazi by his tutor the
NSW Trustee and Guardian v SRY Constructions Pty Ltd; SRY
Constructions Pty Ltd v Wassim Hijazi [2018]
NSWCATCD 53
BUILDING AND CONSTRUCTION - Rectification of defects and
completion of incomplete works - termination of contract -
repudiation of contract - damages claim by home owner and by
builder - variations - quantum meruit - preferred outcome.
Wykes v MS & SJ Schols Pty
Ltd; MS & SJ Schols Pty Ltd v Wykes
[2018] NSWCATCD 50
HOME BUILDING – Residential building work –
contract – whether fixed price or cost plus – whether
written or oral – hybrid arrangement – whether sham
– terms of contract – builder's defects –
quantum meruit.
Pearce v Jamatt Constructions
Pty Ltd [2018] NSWCATCD 44
CONTRACTS — Formation — agreement —
battle of the forms – construction contracts.
Moustapha v Nelson
[2018] NSWSC 1816
EQUITY – Injunctions – interlocutory
injunction – prima facie case – constructive trust
claim based on the failure of a joint endeavour – where
parties to the joint endeavour agree to share the proceeds of the
sale of property – strength of proprietary claim.
EQUITY – Injunctions – interlocutory injunctions
– balance of convenience – impact of delay in seeking
injunctive relief – where proprietary relief sought at late
stage in the proceedings – where the plaintiff failed to
defend an earlier opportunity to assert their proprietary claim by
application to extend caveat over the property.
PRACTICE AND PROCEDURE – Applications – freezing orders
– whether purchasing expensive assets using money from a
disputed fund is a relevant consideration in awarding a freezing
order – no basis for order identified.
Legislation
Gas and Electricity (Consumer Safety) Amendment (Gas Installations) Regulation 2018 (2018-757) — published LW 21 December 2018.
Conveyancing (Sale of Land) Regulation 2017 (NSW)
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.