Australia: Residential Focus - In the media, Reports, Practice and courts, and Cases

In the media

Fears wharf strikes will bring construction to its knees The construction industry has been dealt another blow as industrial action cripples ports across Australia, adding pressure to an already constrained construction materials supply chain (27 September 2021). More...

$15 million to combat timber shortages The Federal Government has invested an additional $15.1 million to combat the structural timber shortage faced by the housing and construction industry. The investment will be used to deliver bushfire-affected softwood to underutilised timber mills, targeting timber on Kangaroo Island that could provide enough timber for between 8,000 and 10,000 new houses (22 September 2021). More...

NSW construction the exemplar industry Australian Constructors Association CEO Jon Davies said the removal of the workforce cap reflects the positive response by construction workers to the call to get vaccinated but also the collaborative approach taken to reduce the risks of COVID transmission (21 September 2021). More...

Industry welcomes decision to lift construction work force caps Infrastructure Partnerships Australia welcomes the NSW Government's announcement to lift construction workforce caps on sites from Monday next week (21 September 2021). More...

Practice and courts

Culture in construction The Cost of doing nothing report calculates that the estimated economic cost of lost wellbeing from work-related fatalities, injuries and illnesses in 2018 was $6.1 billion; the productivity cost of employees consistently working overtime was $708 million; the cost of mental ill-health was $643 million and the cost of higher incidence of male construction worker suicides compared to other industries was $533 million. This report and other information about the culture standard are available on the new culture in construction website.

HIA submissions Proposed Wilton housing complying development code explanation of intended effect – 24 September 2021.

Guide for design practitioners and engineers Consult Australia, Engineers Australia and the Australian Institute of Architects have joined forces to develop the Guide for design practitioners and engineers to help their members tackle the recent NSW building confidence reforms. There are multiple new obligations on design practitioners, engineers and building practitioners throughout the life of a building under the NSW Design and Building Practitioners Act 2020 and the Design and Building Practitioners Regulation 2021.

Conflicts of interest – savings and transitional arrangements Clause 71 of the regulation introduces savings provisions for certain conflict of interest situations where the certifier was appointed before 1 July 2020 and the work will be completed before 1 July 2022. The provisions relate to council-certified developments and to developments where the certifier gave advice on how to comply with the BCA deemed to satisfy provisions. For all the changes, access the amendment regulation.

Cases

Tanios v Baserite Constructions Pty Ltd [2021] NSWCATCD 85 BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – whether a building works agreement arose out of a compromise of prior proceedings – whether a consent work order in the prior proceedings was beyond the tribunal's jurisdiction – renewal application by home owner on remitter from appeal panel – oral variation of building works agreement alleged by builder – whether oral variation is enforceable – cross application by builder for quantum meruit sum in respect of some building works performed following compromise of prior proceedings.

Jayasooriah v Wisdom Properties Group Pty Ltd [2021] NSWCATCD 84 BUILDING AND CONSTRUCTION – renewal of proceedings after work order – whether applicant can raise a fresh claim not the subject of the previous orders.

Addbuild Master Builders Pty Ltd v Stern [2021] NSWCATCD 83 BUILDING AND CONSTRUCTION – proper construction of payment provisions in clauses 12 and 14 of New South Wales Fair Trading residential building contract – damages – mitigation – work order – section 48MA of the Home Building Act 1989 (NSW).

Dodd v Balmain Projects Group Pty Ltd [2021] NSWCATCD 82 BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – major defect – whether any defects are a major defect – whether a work or a money order should be made in respect of major defects as agreed or found.

Bourke v Wincrest Group Pty Ltd [2021] NSWCATCD 81 COSTS – no issue of principle.

Betts v Harman [2021] VCC 1349 SALE OF LAND – sale by owner builder – failure to annex required insurance as provided by section 137B of the Building Act 1993 – whether parties contracted out of the purchaser's entitlement to rescind – whether purchaser elected to affirm contract – whether precluded from rescission by waiver estoppel – whether time for provision of insurance material extended by terms of contract – whether purchaser's failure to settle on time precludes purchaser from rescinding.

Bajimaya v Reward Homes Pty Ltd [2021] NSWCATAP 297 HOME BUILDING – jurisdiction – agreement to enter into a building contract. Civil and Administrative Tribunal Act 2013 (NSW), sections 60, 80, 81, Scheme 4 clause 12; Civil and Administrative Tribunal Rules 2014 (NSW), rr 38, 38A.

Day v Quince's Quality Building Services Pty Ltd [2021] NSWCATAP 296 BUILDING AND CONSTRUCTION – construction and interpretation of home building contract – clause 14 of the BC4 residential building contract – whether tribunal erred in interpretation and application of the clause.

Hume Plasterboard Pty Ltd v Best Interiors Aust Pty Ltd & Ors (No.2) [2021] NSWDC 514 COSTS – whether part of successful defendant's costs should not be paid because of non-compliance with procedural directions – whether costs payable by unsuccessful defendant should be paid on indemnity basis – whether Bullock order should be made.

De Marco v Macey [2021] NSWCATAP 291 HOME BUILDING – alleged procedural unfairness – alleged inadequate consideration of evidence – no issue of principle.

Mick Fabar Constructions Pty Ltd v Nicholls; Nicholls v Mick Fabar Constructions Pty Ltd [2021] NSWCATAP 290 HOME BUILDING – jurisdiction of Tribunal – appeal on a question of law – breach of contract – breach of statutory warranty – method of rectification – assessment of cost of rectification – indemnity costs.

Dyna Constructions Pty Ltd v Bocco Developments Pty Ltd [2021] NSWDC 507 BUILDING AND CONSTRUCTION – Australian consumer law. BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – insurance – false or misleading applications.

Nova Home Developments Pty Ltd v Manzala [2021] NSWCATAP 287 PROCEDURAL FAIRNESS – failure to allow cross-examination. APPEALS – leave to appeal – whether decision against the weight of evidence. Civil and Administrative Tribunal Act 2013 (NSW); Home Building Act 1989 (NSW).

Leahy v Watermin Drillers Pty Ltd [2021] NSWCATAP 281 APPEAL – written contract for water drilling – oral variation – whether tribunal erred in preferring oral evidence of contractor – appellant claiming denial of natural justice due to lack of waterflow evidence – no expert evidence provided before tribunal of waterflow to support appellant's claims – appeal dismissed.

Allianz Australia Insurance Limited v Rawson Homes Pty Ltd [2021] NSWCA 224 CONTRACTS – construction – construction of insurance contract – where policy insured against damage to construction projects – where houses under construction damaged in hailstorm – where policy provided for application of "deductible" – whether "deductible" to be applied in respect of each house under construction, or whether to be applied only once to the total sum to be paid for damage caused by the hailstorm.

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