In the media
What Construction Material Will Disappear in the
Future?
Besides the infamous asbestos, there are some other
materials that can cause poisoning and diseases, and for which some
countries have already created stricter legislation regarding their
use (7 February 2023).
More...
Fixed Price Not Value
The nature of construction is that contractors and
subcontractors price projects months before actual costs are known.
They are given only a few months to quantify complex risks on
multi-billion-dollar projects and unsurprisingly, despite their
best efforts, there is often a difference between the initial
budget and the actual cost (8 February 2023). More...
New home forecasts paint bumpy road ahead
"The current environment is a difficult one for the
industry marked by rising interest rates, robust cost pressures and
labour shortages. Despite this, the total volume of construction
activity grew modestly (+1.5 per cent) to $215.1 billion during
2021–22," stated Master Builders Australia CEO Denita
Wawn (7 February 2023).
More...
Builders respond to December building approvals
Builders hope to see a sustained increase in high density
dwelling construction which are driving early signs of a rebound in
building approvals says Master Builders Australia Deputy CEO Shaun
Schmitke (2 February 2023).
More...
In practice and courts
Registration is open for the NCC 2022 Webinar
Series
The Australian Building Codes Board
(ABCB) invites you to a series of free online
webinars to learn about key changes and new provisions in NCC 2022
Volume One and Volume Two for energy efficiency, condensation
management and livable housing design. Read more
here.
The roller coaster ride set to continue as rates
rise
"Lending for new homes is down by 62.4 per cent since
its peak in January 2021, to its lowest level since November
2012," stated HIA's Chief Economist, Tim Reardon. Read
more
here.
Building approvals down 22 percent. Cash rate impact
still to come
The Australian Bureau of Statistics released its monthly
building approvals data for December for detached houses and
multi-units covering all states and territories. "This data
included a 2.4 per cent decline in house approvals in December
2022," stated HIA Chief Economist Tim Reardon. Read more
here.
Cases
Dyjecinska v Step-Up Renovations (NSW) Pty Ltd; Step-Up
Renovations (NSW) Pty Ltd v Dyjecinska [2023] NSWCATAP
36
APPEALS – Home Building Act 1989 (NSW) – enforceability
of contract – requirement for writing – whether
non-compliance with s 7 requirements renders contact unenforceable
by contractor – s10 – whether rectification work is a
reasonable course to adopt.
Builders Licensing Act 1971; Civil and Administrative Tribunal Act
2013 (NSW); Civil and Administrative Tribunal Regulation 2013
(NSW); District Court Act 1973 (NSW); Electronic Transactions Act
1999 (Cth); Home Building Act 1989 (NSW); Home Building Regulation
2014 (NSW).
The Owners-Strata Plan 86807 v Crown Group Constructions Pty
Ltd [2023] NSWSC 44
CIVIL PROCEDURE – originating process – amendment
– disallowance of amendment – claim under the Home
Building Act 1989 (NSW) s18B.
CIVIL PROCEDURE – originating process – amendment
– disallowance of amendment – claim under Design and
Building Practitioners Act 2020 (NSW) – opportunity to
replead.
Building Code of Australia; Civil Liability Act 2002 (NSW); Civil
Procedure Act 2005 (NSW); Design and Building Practitioners Act
2020 (NSW); Home Building Act 1989 (NSW).
Falzon v Lockrey [2023] NSWCATAP 32
APPEALS – from exercise of discretion – regard to
irrelevant considerations.
APPEALS – from exercise of discretion – disregard of
relevant considerations .
APPEALS – leave to appeal – principles governing
– leave to appeal refused.
APPEALS – procedural fairness – failure to give reasons
– adequacy of reasons.
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW)
– building dispute – where the builder breached
statutory warranties – work order made against the
builder.
Civil and Administrative Tribunal Act 2013 (NSW); Civil and
Administrative Tribunal Rules 2014 (NSW); Home Building Act 1989
(NSW); Home Building Regulation 2014 (NSW); Plumbing and Drainage
Act 2011 (NSW).
Marks v Owners SP 30190 [2023] NSWCATAP 21
REAL PROPERTY – STRATA MANAGEMENT – changes to common
property – levies – Strata Schemes Management Act 2015
(NSW) ss 24, 106, 108, 232.
COSTS – nature of relief requires special circumstances
– no special circumstances – Civil and Administrative
Tribunal Act 2013 (NSW) s 60 – Civil and Administrative
Tribunal Rules 2014 (NSW) r 38.
Civil and Administrative Tribunal Act 2013 (NSW); Civil and
Administrative Tribunal Rules 2014 (NSW); Strata Schemes Management
Act 2015 (NSW).
Timilty Constructions Pty Ltd v Culina [2023] NSWCATAP
28
APPEAL – NCAT – leave to appeal from decision of
Consumer and Commercial Division of NCAT – whether Tribunal
failed to consider or give reasons for not accepting evidence
– no question of law – alternatively, whether findings
against the weight of evidence – new evidence – whether
excessive uplift for preliminaries, builder's margin and
contingencies – whether allowance for contingencies was not
fair and equitable – Tribunal's decision varied in part
– late application by appellant to vary Tribunal's money
order for a work order.
Civil and Administrative Tribunal Act 2013 (NSW); Civil and
Administrative Tribunal Rules 2014 (NSW); Home Building Act 1989
(NSW).
M and PG Projects
Pty Ltd v Robert Groombridge t/as Northern Beaches Bricklayer
[2022] NSWCATAP 392
APPEALS – leave to appeal – principles governing
– leave to appeal refused.
COSTS – Party/Party – application by the respondent
that the appellant pay the costs of the appeal dismissed.
Civil and Administrative Tribunal Act 2013 (NSW); Civil and
Administrative Tribunal Rules 2014 (NSW); Home Building Act 1989
(NSW).
McLeod v
Commissioner for Fair Trading [2022] NSWCATOD 179
Administrative Decisions Review Act 1997; Home Building Act 1989;
Licensing and Registration (Uniform Procedures) Act 2002.
Mehieddine v
Commissioner for Fair Trading [2022] NSWCATOD 178
ADMINISTRATIVE LAW – Home Building Act – contractor
licences – general building work – relevant
experience.
Administrative Decisions Review Act 1997; Home Building Act 1989;
Licensing and Regulation (Uniform Procedures) Act 2002.
Tohme v
Commissioner for Fair Trading [2022] NSWCATOD 177
ADMINISTRATIVE REVIEW – application for extension of time in
which to seek administrative review – factors relevant to the
exercise of that discretion – extension of time
granted.
Administrative Decisions Review Act 1997 (NSW); Civil and
Administrative Tribunal Act 2013 (NSW); Civil and Administrative
Tribunal Rules 2014 (NSW); Home Building Act 1989 (NSW).
McGufficke v
Commissioner for Fair Trading [2022] NSWCATOD 176
ADMINISTRATIVE LAW Owner Building Permit – s32(1A) Home
Building Act – special circumstances – dual
occupancy.
Administrative Decisions Review Act 1997 (NSW); Home Building Act
1989; Standard Instrument (Local Environmental Plans) Order
2006.
Doyle v
Commissioner for Fair Trading [2022] NSWCATOD 175
Administrative Decisions Review Act 1997 (NSW); Home Building Act
1989 (NSW).
James v Jandson Pty
Ltd [2022] NSWSC 1686
BUILDING AND CONSTRUCTION – NCAT – appeal of NCAT
Appeal Panel decision – application to extend time for this
appeal refused – summons dismissed – statutory
warranties as to residential building work – breach of
statutory warranty – whether new contract entered into or
original contract varied – offer and acceptance –
consideration – forbearance to sue – completion date of
building works – leave to appeal finding of facts –
interpretation of s 3B Home Building Act 1989 (NSW).
Civil and Administrative Tribunal Act 2013 (NSW); Environmental
Planning and Assessment Act 1979 (NSW; Home Building Act 1989
(NSW); Home Building Amendment Act 2011 (NSW); Uniform Civil
Procedure Rules 2005 (NSW).
Lamproglou v CTY
Construction Pty Ltd [2022] NSWCATCD 165
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW)
– statutory warranties – due care and skill –
materials – limitation period – minor defects –
preferred outcome.
Home Building Act 1989 (NSW).
Patel v Southern
Cross Joinery Pty Limited [2022] NSWCATCD 162
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW)
– defective work.
Home Building Act 1989 (NSW).
Effective Building
& Construction Pty Ltd v Commissioner for Fair Trading
[2022] NSWCATOD 180
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW)
– disqualification – fit and proper person.
Administrative Decisions Review Act 1997 (NSW); Home Building Act
1989 (NSW); Work Health and Safety Act 2011 (NSW).
Rocking Horse
Constructions Pty Ltd v Equa Building Services Pty Ltd [2022]
NSWSC 1751
PROCEDURE – costs – security for costs –
application by plaintiff for security for costs of defending cross
claim –exercise of discretion.
Competition and Consumer Act 2010 (Cth)' Civil Procedure Act
2005 (NSW); Corporations Act 2001 (Cth); Home Building Act 1989
(NSW); Uniform Civil Procedure Rules 2005 (NSW).
Green v Brown
[2022] NSWCATAP 380
APPEAL – residential tenancy – failure to repair and
consequent mould – appeal filed out of time – no legal
error – no substantial miscarriage of justice –
extension of time refused.
Civil and Administrative Tribunal Act 2013; Civil and
Administrative Tribunal Rules 2014; Residential Tenancies Act 2010;
Residential Tenancies Regulation 2010.
Boutenko v The
Owners – Strata Plan No 77480 [2022] NSWCATCD
166
LAND LAW – Strata title – duty of owners corporation to
repair common property – breach – damages –
limitation period – knowledge of loss – whether
applicant within limitation period-s 106 (6) Strata Schemes
Management Act 2015 (NSW).
LAND LAW – Strata title – Compulsory appointment of
strata manager-s 237 Strata Schemes Management Act 2015 (NSW)
– Principles applicable.
LIMITATION OF ACTIONS – strata title – statutory cause
of action – Failure to repair common property
–Knowledge of loss-s 106 (6) Strata Schemes Management Act
2015 (NSW).
Civil and Administrative Tribunal Act 2013 (NSW); Home Building Act
1989 (NSW); Strata Schemes Management Act 2015 (NSW); Trade
Practices Act 1974 (Cth).
Whitehouse v
Paradise Pools & Solar Pty Ltd [2022] NSWCATCD
161
COSTS – whether there are special circumstances warranting an
award of costs.
Civil and Administrative Tribunal Act 2013 (NSW); Civil and
Administrative Tribunal Rules 2014 (NSW); Home Building Act 1989
(NSW).
O'Loughlin v
Commissioner for Fair Trading [2022] NSWCATOD 168
ADMINISTRATIVE LAW – administrative review – licensing
– endorsed contractor licence – restoration of
authority – whether failure to renew due to inadvertence
– whether just and equitable to allow restoration of
authority – whether Applicant meets requirements for issue of
licence – application of Instrument –
qualifications.
Administrative Decisions Review Act 1997; Civil and Administrative
Tribunal Act 2013; Home Building Act 1989; Interpretation Act 1987;
Licensing and Registration (Uniform Procedures) Act 2002; Property
and Stock Agents Act 2002.
Harris v White
[2022] NSWCATAP 395
APPEAL – procedural fairness – notice of hearing.
Civil and Administrative Tribunal Act 2013 (NSW); Civil and
Administrative Tribunal Rules 2014; Home Building Act 1989
(NSW).
Filliston v
Quickspec Modular Pty Ltd [2022] NSWCATCD 169
BUILDING AND CONSTRUCTION – whether contract between owner
and individual or company – defective work – whether to
make work order or money order – reasonable cost of
rectification.
Civil and Administrative Tribunal Act 2013 (NSW); Civil and
Administrative Tribunal Rules 2014 (NSW); Home Building Act 1989
(NSW).
Effective Building
and Construction Pty Ltd v Jangoshian [2022] NSWCATAP
401
APPEAL – costs of appeal relating solely to apportionment of
costs received by applicant at first instance as between
respondents – "submitting appearance" by party
successful party at first instance – whether that party ought
succeed on costs where the appeal was resolved by consent.
Civil and Administrative Tribunal Act 2013 (NSW); Civil and
Administrative Tribunal Regulations 2013 (NSW); Civil and
Administrative Tribunal Rules 2014 (NSW); Home Building Act 1989
(NSW).
Champion Homes
Sales Pty Ltd v Fawzi [2022] NSWCATAP 399
APPEALS – leave to appeal – decision not fair and
equitable – decision against the weight of the evidence
– no question of principle.
Civil and Administrative Tribunal Act 2013 (NSW).
Austral Built Pty
Limited v Khan & Sultana [2022] NSWCATAP 403
APPEAL – whether error of law demonstrated – whether
grounds for leave to appeal demonstrated – whether new
evidence should be admitted.
Civil and Administrative Tribunal Act 2013; Home Building Act 1989
(NSW).
Nassif v
Commissioner for Fair Trading; Toplace Pty Ltd v Commissioner for
Fair Trading [2022] NSWCATOD 188
ADMINISTRATIVE LAW – REVIEW OF DECISION BY EXTERNAL
DECISION-MAKER – decision to cancel contractor licence and
disqualify a licence holder pursuant to the Home Building Act 1989
(NSW).
PRACTICE AND PROCEDURE – INTERLOCUTORY ORDER – interim
decision – factors relevant to exercise of the power to make
the interim decision under section 60 of the Administrative
Decisions Review Act 1997 (NSW).
Administrative Decisions Review Act 1997 (NSW); Civil and
Administrative Tribunal Act 2013 (NSW); Civil and Administrative
Tribunal Rules 2014 (NSW); Home Building Act 1989 (NSW);
Residential Apartment Buildings (Compliance & Enforcement
Powers) Act 2020 (NSW).
Gold Emporium Pty
Ltd t/as Cordony Constructions v Anderson [2023] NSWCATAP
7
APPEAL – expert evidence-criticisms of the conduct of the
expert and whether the expert evidence should be accepted –
refusal to allow further evidence and whether there was procedural
unfairness – whether leave to appeal should be granted in
respect of findings of fact concerning defects.
Civil and Administrative Tribunal Act 2013 (NSW); Civil and
Administrative Tribunal Rules 2014 (NSW); Home Building Act 1989
(NSW) – ss 18B, 18G; National Construction Code.
The Owners –
Strata Plan No 89005 v Stromer (No 3) [2022] NSWSC
1707
CIVIL PROCEDURE – summary disposal under UCPR r 13.4 –
dismissal of cross-claim – defective pleading concerning
statutory duty under s 37 of the Design and Building Practitioners
Act 2020 (NSW) – whether Scott Schedule provided by the
cross-claimant adequately identifies the precautions the building
supervisor should have taken to manager the risk of harm.
Design and Building Practitioners Act 2020 (NSW); Home Building Act
1989 (NSW); Uniform Civil Procedure Rules 2005 (NSW).
Rehman v F&F
Smart Homes Pty Ltd [2023] NSWCATCD 12
BUILDING AND CONSTRUCTION – claims for defective, incomplete
work, and delay – whether work order or money order should be
made.
Civil and Administrative Tribunal Act 2013 (NSW); Civil and
Administrative Tribunal Regulation 2013 (NSW); Civil and
Administrative Tribunal Rules 2014 (NSW); Home Building Act 1989
(NSW).
Egan v Egan
[2023] NSWCATCD 10
BUILDING AND CONSTRUCTION – application to adjourn
proceedings – application to file further evidence –
application for summary dismissal – the guiding principle of
the Civil and Administrative Tribunal Act 2013 (NSW).
Civil and Administrative Tribunal Act 2013 (NSW); Home Building Act
1989 (NSW).
Russell v Perri
t/as Ferral Concreting [2023] NSWCATCD 7
COSTS – Party/Party – general rule that costs follow
the event.
COSTS – Party/Party – self represented litigant.
Civil and Administrative Tribunal Act 2013 (NSW); Home Building Act
1989 (NSW).
Martignago v Visual
Building Construction Pty Ltd [2022] NSWCATCD 219
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW)
– defects in building work – whether a work or a money
order should be made in respect of defects in building work –
assessment of the quantum of damages.
Civil and Administrative Tribunal Act 2013 (NSW); Home Building Act
1989 (NSW).
Babhoota v AMT
Grand Homes Pty Ltd [2022] NSWCATCD 217
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW)
– defective building work – variation of contract
– whether exchange of emails satisfied requirement for
variation to be in writing and signed – expert
evidence.
Electronic Transactions Act 2000 (NSW); Home Building Act 1989
(NSW).
Tran v Buildarch
Pty Ltd [2022] NSWCATCD 214
BUILDING AND CONSTRUCTION – Home building – limitation
period – s 48K(8) Home Building Act 1989 – whether to
transfer proceedings to the District Court.
Civil and Administrative Tribunal Act 2013 (NSW); Home Building Act
1989 (NSW).
Hua Nan Trading Pty
Ltd v The Owners – Strata Plan No 32396 [2022] NSWCATCD
213
LAND LAW – strata titles – section 106(6) of the Strata
Schemes Management Act 2015 – applicability of s41 of the
Civil and Administrative Tribunal Act 2013 to s106(6).
Civil and Administrative Tribunal Act 2013; Strata Schemes
Management Act 2015; Home Building Act 1989; Residential (Land
Lease) Communities Act 2013.
In-Style
Developments Pty Ltd v La & Anor [2023] NSWDC 23
BUILDING AND CONSTRUCTION – whether notice to rectify
defective or incomplete works invalid – whether owners'
termination of contract unlawful – whether the conduct by the
owners (or the architect on their behalf) prevented the builder
from substantially complying with his obligations to complete
– whether cap on compensation under contract excludes or
modifies right to compensation for defective works supplied in
breach of statutory warranties – whether costs for strip out
or structural works necessary and reasonable.
Home Building Act 1989 (NSW); Uniform Civil Procedure Rules 2005
(NSW).
Roberts v Goodwin
Street Developments Pty Ltd [2023] NSWCA 5
BUILDING AND CONSTRUCTION – contract – defects –
duty of care – whether statutory duty of care under the
Design and Building Practitioners Act 2020 (NSW) applies in
relation to "boarding houses" – meaning of
"building work" – Meaning of "construction
work".
BUILDING AND CONSTRUCTION – contract – damages –
whether proper measure of damages to reversionary interest in
property is the rectification of the damage or the diminution in
value of the reversionary interest – CIVIL PROCEDURE –
commercial List, Technology and Construction List – procedure
– list statements – where respondent failed to plead
action on the case in trespass in List Statement – whether
denial of procedural fairness to determine the matter on that
basis.
American Restatement (First) of Torts; Civil Procedure Act 2005
(NSW); Community Land Management Act 1989 (NSW); Community Land
Management Act 2021 (NSW); Conveyancing Act 1919 (NSW);
Corporations Act 2001 (Cth); Design and Building Practitioners Act
2020 (NSW); Design and Building Practitioners Regulation 2021
(NSW); Environmental Planning and Assessment Act 1979 (NSW); Home
Building Act 1989 (NSW); Interpretation Act 1987 (NSW); Landlord
and Tenant Act 1927 (UK); Uniform Civil Procedure Rules 2005
(NSW).
Denmeade v
Travers [2023] NSWCATCD 3
REAL PROPERTY – HOME BUILDING – defective and
incomplete works – work order or money order – Home
Building Act 1989 ss 18B, 18F, 48MA.
Home Building Act 1989 (NSW); Home Building Regulation 2014
(NSW).
Coscuez
International Pty Ltd v The Owners – Strata Plan No 46433;
The Owners – Strata Plan No 46433 v Coscuez International Pty
Ltd [2022] NSWCATCD 201
LAND LAW – strata title – whether proposed by-law
unreasonably refused – whether by-laws are harsh,
unconscionable, or oppressive.
Civil and Administrative Tribunal Act 2013 (NSW); Civil Procedure
Act 2005 (NSW); Legal Profession Uniform Law 2014 (NSW); Strata
Schemes Management Act 1996 (NSW); Strata Schemes Management Act
2015 (NSW); Strata Schemes Management Regulation 2016 (NSW).
Fayazi v
Commissioner for Fair Trading [2023] NSWCATOD 15
OCCUPATIONS – builders – licences and registration
– whether the applicant is a fit and proper person to hold a
licence.
Administrative Decisions Review Act 1997 (NSW); Home Building Act
1989 (NSW); Work Health and Safety Act 2011 (NSW).
Nu-Stone Building
Pty Ltd v McInerney [2023] NSWSC 67
PRACTICE AND PROCEDURE – application for a stay of
proceedings pending determination of application for leave to
appeal and any appeal from a decision of the Appeal Panel of the
Civil and Administrative Tribunal of New South Wales –
whether there is an arguable ground of appeal on a question of law
– Whether arguable that leave to appeal would be granted
– where there is a risk of substantial prejudice to the
plaintiff if that the orders are not stayed – where there is
no or limited risk of substantial prejudice to the defendants if
the orders are stayed – balance of convenience and the
interests of justice favour the granting of a stay.
Civil and Administrative Tribunal Act 2013 (NSW); Home Building Act
1989 (NSW); Uniform Civil Procedure Rules 2005 (NSW).
Cully v
Chaseling [2022] NSWCATCD 191
BUILDING and CONSTRUCTION – assessment of damage –
precise evidence of loss not provided – mitigation of
damages.
Civil and Administrative Tribunal Act 2013; Fair Trading Act 1987;
Home Building Act 1989.
Micevski v SK
Roofing Pty Ltd [2022] NSWCATCD 195
BUILDING & CONSTRUCTION: Home Building – statutory
warranty claim.
Home Building Act 1989.
The Owners –
Strata Plan No 92183 v Samdora Pty Ltd [2023] NSWSC
41
SUMMARY DISMISSAL – principles at [4]-[5] – building
defects claim – earlier proceedings settled – whether
settlement agreement included a release barring these proceedings
– release in draft deed circulated without instructions to
'open discussions' – draft deed fell by the wayside
in subsequent negotiations – ascertaining contractual terms
at [6] – post-contractual conduct at [7].
Design and Builders Practitioners Act 2020 (NSW); Home Building Act
1989 (NSW); Strata Schemes Management Act 2015 (NSW); Uniform Civil
Procedure Rules 2005 (NSW).
Legislation
NSW Legislation
Regulations and other miscellaneous instruments
Environmental
Planning and Assessment (Development Certification and Fire Safety)
Amendment (Construction Certificates) Regulation 2023 –
published LW 3 February 2023
Environmental
Planning and Assessment Amendment (Water Supply Systems) Regulation
2023 – published LW 3 February 2023
Law
Enforcement (Powers and Responsibilities) Amendment (Organised
Crime) Regulation 2023 – published LW 1 February
2023
NSW
Reconstruction Authority Regulation 2023 – published LW 3
February 2023
Referable
Debt Order – published LW 3 February 2023
Water
Management (General) Amendment (Floodplain Harvesting Access
Licences) Regulation 2023 – published LW 3 February
2023
Environmental Planning Instruments
Bega
Valley Local Environmental Plan 2013 (Amendment No 42) –
published LW 3 February 2023
State
Environmental Planning Policy (Transport and Infrastructure)
Amendment (Water Supply Systems) 2023 –published LW 3
February 2023
The
Hills Local Environmental Plan 2019 (Amendment No 29) –
published LW 3 February 2023
Cth Legislation
Federal
Safety Commissioner Act 2022 06/02/20223 – Act No. 87 of
2016 as amended
Jurisdiction
of Courts (Cross-vesting) Act 1987 06/02/2023 – Act No.
24 of 1987 as amended
Fair Work
(Registered Organisations) Act 2009 06/02/2023 – Act No.
86 of 1988 as amended
Fair Work Act 2009 03/02/2023 – Act No. 28 of 2009 as
amended
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.
