Australia: Residential Focus: Recent media releases, reports, cases and legislation relating to residential property in NSW

Last Updated: 18 March 2019
Article by Christine Jones and Divya Chaddha
Most Read Contributor in Australia, March 2019

In the media

Building quality fiasco: The fallout rumbles into dangerous zones as governments fail to govern
As the building quality fiasco continues to bite, insurers are starting to insert inconvenient exclusions into their policies, forcing private certifiers in NSW to warn that building in the state could grind to a halt (7 March 2019).  More...

RICS: It’s time to call for outcomes not more red tape: construction industry non-compliance
The recent Building Ministers Forum (BMF) in Hobart was noteworthy for proposing the need for more red tape, more checkers checking the checkers and avoiding any measurable outcomes that would really make a difference (28 February 2019).  More...

HIA: Home building slows
Figures released by the ABS show that the residential building industry did $68.7 billion worth of work on new homes during 2018 which was an all-time high. This implies that the pipeline of new residential building work is thinning out and as the homes that are currently under construction reach completion there are likely to be fewer new projects to replace them (27 February 2019).  More...

Published - articles, papers, reports

Australian Bureau of Statistics
04/03/2019 Building Approvals, Australia, Jan 2019 (cat no. 8731.0).

In practice and courts

AIBS Member Information - Lacrosse VCAT Judgement
AIBS Legal Advisers - Kelledy Jones, have provided a summary of the Victorian Civil Administrative Tribunal's judgement on the Lacrosse Apartment fire in Melbourne’s Dockland in 2014 (07 March 2019).  More...

ABCB reminder: NCC 2019
All three volumes of the NCC 2019 preview, as well as The Guide to Volume One, are now available to download. To get your copy, log into your NCC account through the NCC online or create your NCC account and login to access. NCC 2019 will be adopted from 1 May 2019. If you’d like an overview of the key changes and dates, please check out the latest ABCB Connect article.  More...

New standards
AS/NZS 1576.1:2019
Scaffolding - General requirements -  Standards Australia.

Cases

Treble v Building Professionals Board [2019] NSWCATOD 34
(b) Pursuant to s 31(4)(f) of the Building Professionals Act 2005 the applicant is to pay to the Building Professionals Board a fine of $8,000 within 28 days of the date of this decision.
ADMINISTRATIVE REVIEW – Accredited certifier – findings of unsatisfactory professional conduct – disciplinary orders varied as to amount of fine. Administrative Decisions Review Act 1997; Building Professionals Act 2005.

D&K Developments Pty Ltd v Tchetchenian [2019] NSWCATAP 47
ADMINISTRATIVE LAW – Denial of procedural fairness – directions for service of submissions on costs application – no submissions filed – no steps taken to comply with directions or seek an extension of time.
Appeal is against a costs order made on 3 December 2018 (Costs Order) in favour of the respondents who were applicants in home building proceedings HB 17/36629.

Owners Corporation No.1 of PS613436T v LU Simon Builders Pty Ltd (Building and Property) [2019] VCAT 286
BUILDING AND CONSTRUCTION – Fire at Lacrosse tower on La Trobe St - aluminium composite panels (ACPs) – compliance with the Building Code of Australia (BCA) – construction of the BCA – International Fire Engineering Guidelines (IFEG) – consultant agreements with building professionals – history and use of ACPs – causes of damage by fire – compliance of ACPs with the BCA – construction of BCA clause C1.12(f) “bonded laminated materials” – construction of BCA clause C2.4 of specification C1.1 “attachments to a wall” – breach of warranties under the Domestic Building Contracts Act 1995 (Vic) – role of relevant building surveyor – whether obligations under consultant agreements coextensive with duty to exercise reasonable care – failure by building professionals to exercise reasonable care under construction agreements – whether building surveying a “profession” – Wrongs Act 1958 (Vic) s59 peer professional opinion defence – relevance of D&C Contract to construction of consultant agreements – breach of consultant agreements – construction of specification forming part of D&C Contract – meaning of “indicative to” – role of fire engineer – meaning of “full fire engineering assessment” under IFEG – failure to warn of non-compliant ACP – liability of smoker – role of superintendent – liability of owners in relation to items stored on balconies – causation and remoteness in relation to failures of building surveyor, architect and fire engineer to exercise reasonable care – would a warning have avoided harm – proportionate liability – allocation of responsibility between building surveyor, architect, fire engineer and smoker – quantum – sufficiency of evidence establishing loss – reliance on assessments by insurance adjuster – loss associated with increased insurance premiums.

Bitar Pty Ltd v Hebbel Constructions Pty Ltd [2019] NSWCA 38
APPEAL – Leave to appeal from interlocutory decision not to discharge court appointed receiver – where complaints of delay by the receiver – whether error of principle in approach to removal of receiver – whether manifest injustice in refusing to remove the receiver – where futility of an appeal given receivership almost complete – where other remedies available.
CORPORATIONS – Receivers and managers – appointment by court – application for removal of receiver – conduct of receivership – powers – where receiver makes commercial judgments as to timing and staging of sale of assets.

Bellerive Homes Pty Ltd v FW Projects Pty Ltd [2019] NSWSC 193
CONTEMPT – Civil contempt – where parties entered into design and construction contract – where application made under the Building and Construction Industry Security of Payment Act 1999 (NSW) for adjudication of contractual dispute – where adjudication was that plaintiff entitled to judgment for $1,110,063.83 – where adjudication certificate filed as judgment for a debt pursuant to s 25(1) of the Building and Construction Industry Security of Payment Act 1999 (NSW) – where adjudicated sum unsatisfied – where plaintiff seeks defendant be punished for contempt by declaration, sequestration order, fine or other orders – where defendant made no case submission – whether prima facie case respondents guilty of contempt – May v O’ Sullivan (1955) 92 CLR 654; [1995] HCA 38 – whether failure to pay a judgment debt is capable of constituting civil contempt – whether relevant distinction between a judgment debt and other order to pay money.
CIVIL PROCEDURE – Civil contempt – where adjudication certificate filed as a judgment for a debt pursuant to s 25(1) of the Building and Construction Industry Security of Payment Act 1999 (NSW) – where judgment given file number – where contempt proceedings commenced by notice of motion – whether proceedings should have commenced by way of summons – Supreme Court Rules 1970 (NSW), Part 55, rule 6(2) – Civil Procedure Act 2005 (NSW), s 63, 133(2).

Legislation

New South Wales

Proclamations commencing Acts
Fair Trading Legislation Amendment (Reform) Act 2018 No 65 (2019-115) — published LW 28 February 2019
The Architects Act 2003 to remove the minimum age requirement for registration and to enable applications for registration as an architect to be made electronically.

Regulations and other miscellaneous instruments
Home Building Amendment (Miscellaneous) Regulation 2019 (2019-76) — published LW 15 February 2019

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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