In the media

Australia's housing crisis impacted by 'Nimby Paradox', Griffith University researcher says
Griffith Research Institute director, Paul Burton, says the Nimby paradox, impacting Australia's housing crisis, is when residents oppose changes that could increase houses in their suburbs, but complain when workers are priced out of an area (8 October 2023). Read more here.

First social housing accelerator in Riverwood
More people in NSW will have access to their own home with a $6.2 million redevelopment of residential dwellings in Riverwood – the first project in the state announced under the Federal Government's Social Housing Accelerator payment. The project is the first of many that will boost social housing supply and get more people into homes sooner in NSW (4 October 2023). Read more here.

Sydney continues longest stretch of rent rises, but signs point to market slowing
Sydneysiders are continuing to face the longest stretch of rent rises in the city's history, but there are signs the market is slowing as tenants reach the limits of their ability to meet increasing prices. The Domain Rental Report, released on 5 October 2023, shows the city is facing its lowest ever vacancy rate at 0.9 per cent, meaning fewer options and less bargaining power for those looking for a rental (5 October 2023). Read more here.

Property values are tripped to reach a new high. Here's how much prices have risen in each capital city
Since prices bottomed out in January, national values have increased faster than the rate of inflation. CoreLogic research director Tim Lawless said while home values were still 1.3 per cent below the record reached in April last year, a new national record could be reached by the end of November. Sydney home values are up 10.6 per cent since bottoming out in January 2023 (4 October 2023). Read more here.

Many Australian construction firms have collapsed. Here's what to do if your builder goes bust
According to ASIC data, between July 2022 and April 2023, 1,709 construction companies across the country entered administration. In NSW, the Home Building Compensation Fund provides a safety net for home owners faced with defective building work and non-completion of that work carried out by a builder or trades person (28 September 2023). Read more here.

New tool estimates 40,000 new social and affordable houses will have $4.4 billion benefit
Researchers at Swinburne University of Technology have developed a tool to calculate the social, economic and environmental benefits of social and affordable housing. New research estimates that 40,000 new social and affordable houses recently announced by the government will create an additional $4.4 billion benefit over the next 40 years (3 October 2023). Read more here.

Sustainable building reforms under the Sustainable Building State Environment Planning Policy (SEPP)
The NSW Government's SEPP is set to offer developers and homeowners a choice of measures to achieve new building standards. The SEPP commences on 1 October 2023. The new sustainable building (BASIX) energy standards are now in effect with changes including raising thermal performance standards, increasing emission reduction requirements and introducing mandatory assessment and reporting of building material emissions for every new home (1 October 2023). Read the ministerial release here. Read the SEPP here.


National Construction Code 2022 Volume Two Glazing Calculator
This version of the National Construction Code 2022 (NCC 2022) glazing calculator (the calculator) assists in understanding and applying the Volume Two ABCB Housing Provisions Standard part 13.3 External glazing DTS Provisions for energy efficiency (October 2023). View the calculator here. View Part 13.3 External Glazing of the NCC 2022 here.

Housing Industry Association's Consultation on Work Health and Safety Incident notification
The Housing Industry Association's take this opportunity to provide a submission in response to the Safe Work Australia's Consultation paper – WHS incident notification. HIA supports a greater emphasis on managing risks to prevent serious physical and psychological incidents in the workplace (29 September 2023). Read the HIA's submission here.

Australian Sustainable Built Environment Council's (ASBEC) submission: Senate Economics References Committee Inquiry into Australia's Residential Electrification Efforts
The ASBEC welcomes the Senate's Inquiry and calls on the Australian Government to adopt numerous "immediate priorities" and notes that urgent action on climate change is required (29 September 2023). Read the ASBEC's submission here.


Olcayto v Paintalo Group Pty Ltd [2023] NSWCATCD 95
BUILDING & CONSTRUCTION – Waiver Repudiation – defects – Section 79O of the Fair Trading Act 1987.
Fair Trading Act 1987; Home Building Act 1989; Home Building Regulation 2014.

Gilliland v Kingdom Building Pty Ltd [2023] NSWCATCD 87
COSTS – where proceedings not determined on the merits.
Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules (NSW) 2014; Home Building Act 1989 (NSW).

Brown v Max Pattison Pty Ltd and Travis-Almond [2023] NSWCATCD 86
REAL PROPERTY – BUILDING and CONSTRUCTION – HOME BUILDING – rights on termination of contract – entire contract with progress payments on account – substantial failure of consideration – refund of monies paid.
Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW); Home Building Act 1989 (NSW); Home Building Regulation 2014 (NSW).

Vasan v Georges Construction & Building Services Pty Ltd [2023] NSWCATCD 84
BUILDING & CONSTRUCTION: Residential building work – work by unlicensed Builder – work incomplete and in breach of warranties in Home Building Act.
Home Building Act 1989; Civil and Administrative Tribunal Act 2013.

Chalboub v Commissioner for Fair Trading [2023] NSWCATOD 142
ADMINISTRATIVE LAW – REVIEW OF DECISION BY EXTERNAL DECISION-MAKER – decision to refuse contractor licence pursuant to the Home Building Act 1989 (NSW) – fit and proper person.
Administrative Decisions Review Act 1997 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW); Firearms Act 1996 (NSW); Home Building Act 1989 (NSW).

Lee v Taylor [2023] NSWCATAP 267
APPEAL – whether appellant establishes error on question of law – whether appellant establishes grounds for leave to appeal – whether "new evidence" relied on by appellant was not reasonably available at time of original hearing.
Civil and Administrative Tribunal Act 2013 (NSW), s 80, cl 12 of Sch 4; Residential Tenancies Act 2010 (NSW), ss 19, 21, 38, 39, 40, 41, 47; Residential Tenancies Regulation 2019 (NSW), cl 34.

Hamdan v Commissioner for Fair Trading [2023] NSWCATOD 147
OCCUPATIONS – other occupations – electrical contractors and electricians – whether the Applicant is a fit and proper person to hold the licence.
Administrative Decisions Review Act 1997 (NSW) Home Building Act 1989 (NSW); Home Building Regulation 2014 (NSW).

SafeWork NSW v Denbrok Constructions Pty Limited [2023] NSWDC 407
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury – maximum penalty.
SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – appropriate discount for the utility of the plea – general deterrence – specific deterrence – remorse and contrition – maximum penalties.
COSTS – prosecutor's costs – capacity to pay.
Crimes (Sentencing Procedure) Act 1999 (NSW); Criminal Procedure Act 1986 (NSW); Fines Act 1996 (NSW); Work Health and Safety Act 2011 (NSW).

Mazurek v Fisniku [2023] NSWCATCD 81
BUILDING AND CONSTRUCTION – whether costs plus contract replaced by fixed price contract – validity of termination – finding of mutual termination.
ESTOPPEL – promissory estoppel – estoppel by convention.
BUILDING AND CONSTRUCTION – cost of completion – alleged overcharging – storage costs.
Civil and Administrative Tribunal Act 2013 (NSW) – ss 38, 60; Civil and Administrative Tribunal Regulation (NSW); Civil and Administrative Tribunal Rules 2014 (NSW) – rr 38, 39; Civil Procedure Act 2005 (NSW) – s 100; Home Building Act 1989 (NSW) – s 18B.

Anand and Anand v Macasa Homes Pty Ltd; Anand and Kaur v Macasa Homes Pty Ltd; Anand v Macasa Homes Pty Ltd; Singh v Macasa Homes Pty Ltd [2023] NSWCATCD 76
HOME BUILDING – recovery of payment under a preliminary agreement.
Civil and Administrative Tribunal Act 2013 (NSW); Home Building Act 1989 (NSW).

Jones v The Owners – SP 93087 [2023] NSWCATCD 73
LAND LAW – Strata scheme – s 237 Strata Schemes Management Act 2015 (NSW) – appointment of compulsory strata manager – where compulsory strata manger already appointed – whether circumstances justify a further appointment of compulsory strata manager – whether circumstances justify extension of the existing order.
Civil and Administrative Tribunal Act 2013; Civil and Administrative Tribunal Rules 2014; Home Building Act 1989; Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020; Strata Schemes Management Act 2015.

Goodman v Commissioner for Fair Trading [2023] NSWCATAP 260
OCCUPATIONAL – Home Building Act 1989 (NSW) – application for restoration of supervisor certificate previously held by appellant – whether appellant took all reasonable steps to avoid external administration – whether appellant is a fit and proper person – whether error established.
Administrative Disputes Review Act (NSW) 1997 s63; Civil and Administrative Tribunal Act 2013 (NSW) s 80(2); Home Building Act 1989 s25(1)(a), s33B, 33D.

Actol Pty Ltd v Rise Products Pty Ltd; Rise Product Pty Ltd v Actol Pty Ltd [2023] NSWCATAP 259
APPEALS – statutory interpretation – when amendment increasing Tribunal's monetary jurisdictional limit in claims under the Fair Trading Act 1987 (NSW) takes effect – questions of law – adequacy of reasons as a question of law – need to identify questions of law with clarity.
Australian Consumer Law (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW); Corporations Act 2001 (Cth); Design and Building Practitioners Act 2020 (NSW); Fair Trading Act 1987 (NSW); Fair Trading Amendment (Monetary Limit on Orders) Regulation 2022 (NSW); Home Building Act 1989 (NSW); Interpretation Act 1987 (NSW); Subordinate Legislation Act 1989 (NSW); Worker's Compensation Act 1987 (NSW).

Benson v NSW Self Insurance Corporation [2023] NSWCATCD 103
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – insurance – claims.
Home Building Act 1989 (NSW); Home Building Regulation 2014 (NSW); Residential Tenancies Act 2010 (NSW) Act 2013 (NSW).

Hardwicke v Paul Richards Plumbing Pty Ltd [2023] NSWCATCD 102
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – warranties implied into residential building contracts – due care and skill – compliance with specifications – fitness for purpose – applicant repudiated contract by refusing respondent access to complete work – scope of work in contract not fit to achieve the purpose disclosed by the applicant – applicant had not paid full contract price – no evidence to establish what it would have cost the applicant to achieve the disclosed purpose – Tribunal unable to assess whether respondent entitled to any further payment – order made that applicant not liable for further payment.
Home Building Act 1989 (NSW); Home Building Regulation 2014 (NSW).

The Owners Strata Plan 92156 v Professional Construction Services Pty Ltd [2023] NSWCATCD 100
BUILDING & CONSTRUCTION; Home Building – breach of statutory warranties – where work involved the conversion to residential use of a commercial space – scope of contract – effect of implied warranties.
Home Building Act 1989.

Playpoint Pty Limited v Gerflor Australasia Pty Ltd [2023] NSWCATCCD 110
CONSUMER LAW – supply of services – guarantee of due care and skill – advice and information – guarantee of fitness for purpose – misleading and deceptive conduct – causation.
Australian Consumer Law; Fair Trading Act 1987 (NSW); Fair Trading Regulation 2019 (NSW); Home Building Act 1989 (NSW).

Champion Homes Sales Pty Ltd v Biggs; Biggs v Champion Homes Sales Pty Ltd [2023] NSWCATCD 117
BUILDING AND CONSTRUCTION – contract – termination – repudiation.
BUILDING AND CONSTRUCTION – contract – agreed damages – penalty.
Home Building Act 1989 (NSW).

Scozza v Jih Building Design Pty Ltd [2023] NSWCATCD 120
CONSUMER LAW – consumer guarantees – supply of services – guarantee as to due care and skill – guarantee as to fitness for a particular purpose – guarantee as to reasonable time for supply.
Australian Consumer Law 2010 (NSW); Fair Trading Act 1987 (NSW); Fair Trading Regulation 2019 (NSW); Home Building Act 1989 (NSW).


Assented to
Treasury and Revenue Legislation Amendment Act 2023 No 26 – assented to 27 September 2023
Civil and Administrative Tribunal Amendment Act 2023 No 22 – assented to 20 September 2023

Regulations and miscellaneous instruments
Transport Legislation Amendment (Penalties, Fees and Charges) Regulation 2023 (SI 550) – commenced 1 October 2023
Civil Liability (Non-economic Loss) Amendment Order 2023 (SI 546) – commenced 1 October 2023
Public Interest Disclosures Regulation 2022 (SI 549) – Published 1 October 2023
Administrative Arrangements (Administrative Changes – Minister for Domestic Manufacturing and Government Procurement) Order 2023 (SI 544) – commenced on 28 September 2023

Planning instruments
Byron Local Environmental Plan Amendment (Housing) 2023 (EPI 541) – LW 29 September 2023
Guyra Local Environmental Plan 2012 (Amendment No 5) (2023 EPI 553) – LW pushed 29 September 2023
Sutherland Shire Local Environmental Plan (Exempt and Complying Development Codes) Amendment 2023 (EPI 555) – LW published 29 September 2023

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.