In the media
HomeBuilder extension a big win for high vis and white
collar jobs across Australia
The Property Council of Australia has strongly welcomed
the Government's announcement to extend the HomeBuilder scheme
to 31 March 2021 with a 6 month commencement window and adjusted
price caps. This is a big win for hi vis construction jobs across
Australia and all the white collar jobs that support the sector (29
November 2020).
More...
Work in Progress accounting destroying building
companies
New home builders are running out of cash and going bust
because they don't understand how to correctly calculate their
work in progress liability and end up paying tax on profits they
don't make, according to Construction Financials Specialist and
Co-founder of The Association of Professional Builders
(APB) (25 November 2020).
More...
HIA: New housing starts declined in the September
quarter
Preliminary figures released by the ABS today on the value
of residential construction work done showed a decline in the
September 2020 quarter to its lowest level since 2014. This data
precedes the positive impact of the HomeBuilder program due to the
lag between purchasing a house and commencing construction (25
November 2020).
More...
'We need time to get all these jobs done':
Tradies appeal for HomeBuilder extension amid scramble to start
work
With the December 31 deadline approaching, tradies are
calling on the Federal Government to extend the HomeBuilder grant
(25 November 2020).
More...
Responsibility before profit
Increasingly builders are looking to maximise profits to
ensure the sustainability of the business. Cost to operate continue
to rise and competitors are constantly looking at ways to trump
competitor offerings and maintain profit margins (24 November
2020). More...
New cost prediction standard instils consistency in
construction markets
RICS has launched a new global professional statement to
support professionals working in cost management and give clients
confidence that RICS professionals are working to consistent and
high standards of professionalism for construction projects (19
November 2020).
More...
Grocon boss says company is battling for its life,
blames NSW Government for insolvency
The head of one of Australia's building giants says
the only reason the company is about to enter administration is due
to the lengthy legal stoush with the NSW Government over a central
Sydney project (19 November 2020).
More...
Iconic builder Grocon declares insolvency and is set to
go into administration
Melbourne's casino, Eureka Tower and the Rialto Towers
are among the iconic developments Grocon has delivered in recent
decades (19 November 2020).
More...
Insurers and builders joining forces to improve
Australian homes
Master Builders join with Insurance Council of Australia
to map way forward on resilience in Australian homes to natural
disasters following Royal Commission (13 November 220).
More...
New campaign shines light on electrical risks
The new campaign will be delivered with a number of
industry partners including unions, energy retailers and CHOICE to
educate and encourage NSW homeowners to install switches and to
undertake regular checks (24 November 2020).
More...
HIA: The abolition of stamp duty in NSW is a necessary
step
Stamp duty is an inefficient tax. It represents a
significant additional (though artificial) moving cost that
discourages the population moving to a more appropriate home (and
location) that best suits their changing needs (17 November 2020).
More...
Support for owners to remove high risk cladding
The NSW government will establish Project Remediate, a
three-year program to help remove combustible cladding on hundreds
of the most at-risk buildings, and pay the interest on loans by
commercial lenders to building owners and owners corporations,
fast-tracking the removal of unsafe cladding (17 November 2020).
More...
Practice and courts
ABCB: Improvements to the code's structure and
format will be implemented for NCC 2022
To guide users through the changes, the ABCB has developed
a range of supporting resources that will be released in stages
leading up to the publication of the NCC 2022 Public Comment Draft
on 10 May 2021. The first stage of articles and resources are being
released here (26
November 2020).
Adoption of NCC 2022 to be delayed
The delayed adoption will also see adjustments to key
dates in the amendment cycle process for NCC 2022 to allow
stakeholders time to participate. These adjusted dates
include:
May – July 2021: NCC 2022 Public Comment Draft released for
public consultation.
May 2022: NCC 2022 Preview published here.
If you have any questions regarding the delayed adoption of NCC
2022, please submit an
online enquiry.
ABCB consultations
Auditing and Compliance Publication
Framework
The Building Confidence Report (BCR),
published in 2018, identified there were regulatory and compliance
deficiencies in the regulatory oversight of the construction of
commercial buildings in Australia. The draft Framework is targeted
at state and territory building regulators with primary
responsibility for the regulation of the construction of Class 2
– 9 buildings. Closes on 17 January 2020.
Discussion paper: Building Design Acceptance – A
response to the Building Confidence
Report
In 2017, Building Minsters authorised an assessment of the
effectiveness of compliance and enforcement systems for the
building and construction industry across Australia. Amongst other
recommendations the resulting Building Confidence Report
(BCR) recommended that there be a statutory duty.
Opens 16 November 2020. Responses to questions on the discussion
paper, are invited until 7 February 2021.
2020 National Housing Research Program commences
Research is underway for the suite of projects funded by
AHURI as part of the 2020 National Housing Research Program
(NHRP). The research will be undertaken by
collaborative teams from AHURI's eight national university
research partners. For more details of the 2020 NHRP projects
please click
here.
More...
New mandatory standards for building rectification
The standard helps all registered certifiers turn the
requirements under the
Building and Development Certifiers Act and the
Environmental Planning Assessment Act into practice. The Guide
is already being used to assist certifiers working on projects that
are being audited under the new powers that were under the
Residential Apartment Buildings (compliance and enforcement powers)
Act 2020. The standard will be reviewed and updated prior to
the 1 July 2021 commencement of the Government's game changing
building reform agenda underpinned by the
Design and Building Practitioners Act 2020. The first Practice
Standard will initially apply to certifiers working on residential
apartment buildings, where the majority of problems and complaints
have been received. The
Practice Standard for registered certifiers is available on the
Fair Trading NSW website.
Design and Building Practitioners Act 2020: Consultation
November 2020
The NSW Design and Building Practitioners Act 2020 was
enacted in June 2020, introducing statutory registration for
professional engineers. The provisions of the Act will commence on
1 July 2021. The draft Design and Building Practitioners Regulation
includes registration schemes for design and building practitioners
and engineers who work on multistorey, multi-unit residential
apartment buildings. The Government will finalise the Regulations
in early 2021, ready to be implemented on 1 July 2021.
More...
Engineers Australia
Now is your opportunity to provide feedback on new laws
requiring statutory registration for professional engineers, plus a
range of reforms to the process of designing and constructing
buildings. Engineers Australia have compiled information
compiled information on
what's happened so far and
a policy paper.
NSW Revenue: HomeBuilder program
HomeBuilder will provide eligible owner-occupiers
(including first home buyers) with a grant of $25,000 to build a
new home or substantially renovate an existing home where the
contract is signed between 4 June 2020 and 31 December 2020.
Construction must commence within three months of the contract
date.
More...
Cases
Perfax Builders Pty Ltd v Narain
[2020] NSWCATAP 252
APPEAL – building claim – decision said to be
against the weight of the evidence – evidence excluded by
Member sought to be relied upon on appeal – no substantial
miscarriage of justice – leave to appeal refused.
Balde v AAI
Ltd t/as GIO [2020] NSWSC
1623
ADMINISTRATIVE LAW – decisions made under Motor
Accidents Compensation Act 1999 (NSW) – whether third
defendant applied incorrect test in determining causation –
whether third defendant applied incorrect test in determining
whether proposed treatment was reasonable and necessary –
whether fourth defendant failed to identify error.
Bandelle Pty Ltd v Sydney Capitol Hotels Pty
Ltd [2020] NSWCA
303
BUILDING AND CONSTRUCTION – limitation period
– limitation period for actions arising out of defective
building work more than ten years after completion of work –
limitation period originally contained in s 109ZK of Environmental
Planning and Assessment Act 1979 – section renumbered as s
6.20 – as originally enacted, s 109ZK applied only
prospectively – defendant's building work done before
enactment of s 109ZK – whether limitation period applied to
building work done before section enacted – whether s 6.20
replaced s 109ZK – whether limitation period applied to loss
of the kind alleged by the plaintiff. STATUTORY CONSTRUCTION
– amending legislation – limitation section renumbered
and reworded – transitional and savings regulations –
regulations deferred commencement and qualified scope of limitation
period – effect of repeal of regulation – further
regulations including amended regulations preserving repealed
sections and qualifying renumbered section – whether effect
of legislation and amendment was a period of time during which
limitation period did not apply – whether legislation
displaced operation of Interpretation Act 1987 – observations
on undesirability of regulations affecting operation of
statute.
Duzenli Developments Pty Ltd ACN 623 852 031 trading as
Zen Group Constructions v Benuga Pty Ltd ACN 001 131
997 [2020] NSWSC
1667
EQUITY – equitable remedies – injunctions
– serious question to be tried – balance of convenience
– plaintiff builder executes building work under a building
contract with the defendant upon land owned by the defendant
– plaintiff's building work does not reach practical
completion – disputes break out about allegedly defective
work and the rate of completion of the work – defendant
purports to terminate the contract and to exclude the builder from
the site – the plaintiff commences proceedings in the NSW
Civil and Administrative Tribunal (NCAT) seeking
remedies under the Home Building Act 1989 – NCAT gives
directions, allowing both parties access to the site with their
experts to prepare for a hearing before NCAT – the defendant
seeks possession of the site on the basis that the plaintiff's
license to be on the site has been terminated – whether the
defendant should be let into possession – whether the parties
should both be excluded from the site pending resolution of the
NCAT proceedings.
Rawson Homes Pty Ltd v Allianz Australia Insurance
Limited [2020] NSWSC
1654
INSURANCE – annual construction insurance policy
– where hailstorm caused damage to residential development
being constructed by plaintiff – whether one deductible
payable for plaintiff's claim for cover or whether a deductible
is payable in respect of each building works contract –
meaning of "one event" and "claim" – held
that hailstorm was the one event that gave rise to the
plaintiff's claim and one deductible payable. INSURANCE –
calculation of interest under s 57 of the Insurance Contracts Act
1984 (Cth) – where defendant rejected plaintiff's claim
for cover to replace damaged tiled roofs until second day of
hearing – date from which it was unreasonable for defendant
to withhold payment – held that 13 month period to
investigate claim and determine position was reasonable and
interest payable from 29 March 2018.
CIC Projects Pty Ltd v Eyre Kingston Pty
Ltd [2020] NSWSC
1658
CONTRACT – construction – provision in a
co-owners agreement, being one of a suite of agreements entered
into for the purposes of a large construction project, requiring
partition of land representing the residential component and
commercial component of the project respectively between the first
defendant (joint vehicle) and the second defendant, and requiring
the second defendant to pay to the first defendant Expenses
incurred in connection with the commercial component –
whether the land partition is conditional upon or interdependent
with payment of the Expenses – HELD – it is not.
Hammond v Commissioner for Fair Trading
[2020] NSWCATOD 132
ADMINISTRATIVE REVIEW – occupational licensing
– builders licence – whether offence of demanding
property with menaces with intent to steal is an offence involving
dishonesty – whether offence should be ignored –
whether acts or omissions trivial – whether sufficient
passage of time.
Louise
Haselhurst v Toyota Motor Corporation Australia Limited trading as
Toyota Australia [2020] NSWSC
1607
COSTS – security for costs – appropriate
quantum of security – when tranches of security ought to be
paid – where applicant is the defendant in one of seven
Takata Air Bag Class Action Proceedings – where extent of the
evidence and how the remainder of the proceedings will be case
managed yet to be determined – consideration of
conflicting approaches employed by plaintiff 's and
defendant's experts.
The Owners – Strata Plan No 94267 v DEC Engineering &
Construction Pty Ltd & Anor [2020] NSWSC
1647
Application for security for costs dismissed.
COSTS – security for costs – where developer and
builder made cross claims against each other – where
builder's cross claim based on deed of indemnity – where
developer's cross claim sought to impugn that deed –
where developer sought security for costs of builder's cross
claim – where security sought was in substance for costs of
developer's cross claim.
Corporations Act 2001 (Cth); Design and Building Practitioners Act
2020 (NSW); Home Building Act 1989 (NSW).
Uniform Civil Procedure Rules 2005 (NSW).
Morgan v
Director of Public Prosecutions [2020] NSWSC
1605
ADMINISTRATIVE LAW – whether there has been
jurisdictional error – Local Court decision –
Magistrate refused application for professional costs – seeks
prerogative relief – whether Magistrate failed to correctly
apply s 214 Criminal Procedure Act.
Haertsch v
Whiteway (No 2) [2020] NSWCA
287
COSTS – party/party – general rule that costs
follow the event – application of the rule and discretion
– family provision proceedings – where plaintiff
successful at first instance but lost on appeal – whether to
make no order as to costs of first instance and appeal
proceedings.
Application
of Rinehart: 2020/142504 [2020] NSWSC
1624
CONFLICTS OF LAWS – trust law – administration
of trust – judicial advice – Western Australian trust
– inherent equitable jurisdiction – whether New South
Wales statutory advice provision applies – court relies on
cross-vested Western Australian statutory power.
EQUITY – trusts and trustees – judicial advice –
appeal – applicable principles – proposed appeal from
judgment referring trustee's claim to arbitration and otherwise
staying proceedings – proposed appeal from adverse costs
order.
Thiess Pty
Ltd v Sheehan [2020] FCAFC
198
INDUSTRIAL LAW – construction of enterprise
agreement project working hours – hours for which an employee
should be paid – dispute as to when project working hours
ended – whether on departure from crib hut in particular
location at which day's work takes place or on exit through
access gates to whole site.
INDUSTRIAL LAW – principles of construction.
PRACTICE AND PROCEDURE – recusal – apprehension of bias
– whether prior professional relationship between judge and
party should disqualify the former from sitting – whether
bias is reasonably apprehended – recusal not appropriate.
Thunder
Studios Inc (California) v Kazal (No 11)
[2020] FCA 1656
PRACTICE AND PROCEDURE – application during trial
for leave to discontinue cross-claim under r 26.12(2)(c) of the
Federal Court Rules 2011 – where cross-claimant did not lead
evidence regarding his motivation or reasons for seeking leave to
discontinue – where parties had an extensive history of
litigation in various courts around the world – principles
for exercise of discretion in allowing party to discontinue
proceeding where hearing has commenced – not appropriate to
grant leave to discontinue – cross-claim dismissed.
CVP16 v
Minister for Immigration, Citizenship, Migrant Services and
Multicultural Affairs [2020] FCA
1651
MIGRATION – appeal from Federal Circuit Court
– where court dismissed application for judicial review of
Immigration Assessment Authority ('the Authority') decision
to uphold delegate's refusal of protection visa – where
Appellant seeks to advance argument not pursued in court below
– where Appellant submits Authority erred in not considering
new information 'credible personal information' under s
473DD(b)(ii) Migration Act 1958 (Cth) – where Appellant
submits Authority's reasoning illogical and irrational –
whether leave to advance new ground granted.
Maygood Australia Pty Ltd v The Owners – Strata
Plan No 85338 [2020] NSWCATAP
237
BUILDING AND CONSTRUCTION – Home Building Act 1989
(NSW) – building dispute – Tribunal powers –
whether the Tribunal had jurisdiction to determine an application
which had been accepted despite the absence of an investigation by
Fair Trading NSW or a direction by the President. PRACTICE AND
PROCEDURE – whether it was an error of law for the Tribunal
to refuse a party leave to amend its Points of Defence at the final
hearing.
CPB
Contractors Pty Limited v Heyday5 Pty Limited
[2020] NSWSC 1625
BUILDING AND CONSTRUCTION – Building and
Construction Industry Security of Payment Act 1999 (NSW) ss 22(2),
(3), (5) – an adjudication determination upheld a claim for a
variation of a building contract consisting of a direction by a
head contractor to a sub-contractor to provide spotters for mobile
elevated work platforms – challenge to the determination on
the grounds that it discloses no evident or intelligible
justification for upholding the claim and that the adjudicator
denied the plaintiffs procedural fairness because he found them on
bases not the subject of submission duly made – HELD –
challenges not made out – importance of recognising that
adjudicators' determinations are not judgments of a court, that
the procedural behaviour of adjudicators and determinations should
not be examined with an overcritical or pedantic eye but should be
viewed with common sense and without undue legality and should not
be scrutinised with a fine-tooth comb approach.
Modaressi v
Aarf [2020] NSWSC
1627
CIVIL PROCEDURE – summary disposal – dismissal
of proceedings – frivolous or vexatious proceedings –
abuse of process – where plaintiff commenced proceedings
seeking same relief as prior dismissed proceedings – where
prior proceedings were dismissed due to plaintiff's failure to
appear – where plaintiff has not paid costs of earlier
proceedings – whether proceedings constitute an abuse of
process.
Pursell v
Eversham Close Pty Ltd [2020] NSWDC
372
LEASES AND TENANCIES – strata title –
leasehold strata scheme – common property – maintenance
and repair of common property – obligations of owner and
occupiers – continual water damage – renewal of lease
despite water damage.
RESIDENTIAL AGREEMENT – purported breach of lease –
failure to fix damaged property – whether defendants failed
to act reasonably in the circumstances – whether making an
application under s 140 of the SSMA Act 1996 would have been a
reasonable step in fixing property.
ANMAR &
DEMERLY [2020] FCCA
2645
FAMILY LAW – children – parents agree on equal
time regime – four discrete issues remain – mother
Muslim – father Christian – children raised as
Christians – the likely effect of any changes in the
children's circumstances including the likely effect on the
children of any separation from their parents – the culture
and traditions of the children and the children's parents
– the parents' co-parenting relationship –
extra-curricular participation.
PROPERTY – balance sheet issues – contributions
assessed to be equal – disparity in income earning capacity
– 60%/40% adjustment to wife – wife to retain
home.
DEPARTURE ORDER – departure order made as sought by wife.
Legislation
NSW
Regulations and other miscellaneous instruments
Environmental Planning and Assessment Amendment (Moorebank Avenue
Realignment) Order 2020 (2020-675) – published LW 20
November 2020
Planning and Environment Legislation Amendment (COVID-19)
Regulation 2020 (2020-672) – published LW 19 November
2020
Water Management (General) Amendment (COVID-19) Regulation 2020
(2020-673) – published LW 19 November 2020
WA
Regulations and other miscellaneous instruments
Building Services
(Registration) Regulations 2011 (WA)
Bills revised following amendment in Committee –
19 November 2020
Bushfires Legislation Amendment Bill 2020
Electricity Infrastructure Investment Bill 2020
Bills passed by both Houses of Parliament
Bushfires Legislation Amendment Bill 2020
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.