In the media
Reserve Bank of Australia warns more insolvencies likely
in building industry
More insolvencies are likely in the residential
construction industry as builders struggle with rising costs, the
Reserve Bank of Australia has warned. The industry is facing major
problems from a steep rise in costs, as well as labour and material
shortages that have slashed profits on existing fixed-price
contract (7 October 2022). More...
Developer to pay $3 million to guarantee apartment
rectification
Australian YMCI will lodge a $3 million security with the
NSW government to guarantee the rectification work the developer
will complete on a 326-unit apartment development in western
Sydney's Lidcombe (7 October 2022). More...
Interest rates continue to weigh on new home sales
"New home sales declined by 15.7 per cent in the
three months to September, compared to the previous quarter,"
stated HIA Chief Economist Tim Reardon (13 October 2022). More...
NSW government to build confidence in defect fixes
The NSW Government is ramping up its commitment to
restoring consumer confidence in the residential building industry
with an investment in defect rectification, as new research finds
despite 39% of new strata buildings having serious defects, only
15% are reported to NSW Fair Trading (6 October 2022). More...
Final version of NCC 2022 now available
The ABCB has released the final version of NCC 2022 and is
now available on their website at NCC online (6 October 2022). Read
more More.
Understanding what counts as complying development
The NSW Government has recently published a Guide to
Complying Development. Homeowners and builders can use this guide
to understand the planning requirements for developing small scale
residential projects (6 October 2022). More...
In practice and courts
Australian Construction Achievement Award
Now in its 26th year, the ACAA black tie dinner will be
hosted in Melbourne at the Crown Palladium Wednesday 3 May 2023 in
conjuncture with the Future Construction Summit 2023 (FCON 2023).
Entries close 30 November 2022. Make a submission here.
New NCC 2022 requirements for gutters and
downpipes
Some gutters and downpipes requirements have a new home in
the ABCB Housing Provisions. 2022 has been a wet year for many
parts of the country, showing us how important working gutters and
downpipes are for a roof's drainage system. Equally as
important is knowing what requirements are new, or have changed in
NCC 2022. Read more here.
Cases
The Owners-Strata Plan No 90189 v
Parkview Constructions Pty Ltd [2022] NSWSC
1382
EVIDENCE - application for advance ruling - section 192A,
Evidence Act 1995 (NSW) - builder seeks ruling that expert reports
are inadmissible as irrelevant - case law review and principles
regarding advance rulings at [40]-[50] - premature to make rulings
sought where builder yet to serve evidence and trial date not
allocated.
Design and Building Practitioners Act 2020 (NSW); Evidence
Act 1995 (NSW); Home Building Act 1989 (NSW); Uniform Civil
Procedure Rules 2005 (NSW).
The Owners - Strata Plan No 90018 v
Parkview Constructions Pty Ltd [2022] NSWSC
1123
PRACTICE AND PROCEDURE - proposed amendment to Technology
and Construction List Statement - whether amendment will introduce
new causes of action under the Home Building Act 1989 (NSW).
BUILDING AND CONSTRUCTION - residential building work - whether
separate causes of action for each breach of the statutory
warranties under the Home Building Act 1989 (NSW) - whether single
cause of action for all breaches of those statutory warranties or
for each individual statutory warranty - application of Onerati
principle.
Kaye v The Owners - Strata Plan No
4350 [2022] NSWSC
1386
LAND LAW - strata title - common property - two by-laws to
obtain rights to exclusive use and enjoyment of common property -
first proposal offered repairs and maintenance - second proposal
offered monetary compensation - other lot owners concerned about
noise, loss of privacy, lack of compensation, floodgates for
applications - whether refusal of first proposal unreasonable under
Strata Schemes Management Act 2015 (NSW), s 149(1) - Tribunal not
required to weigh interests in determining whether refusal
unreasonable - other lot owners entitled to have regard to own
interests and rely on experience and beliefs.
LAND LAW - strata title - Strata Schemes Management Act 2015 (NSW),
s 149(2) - s 149(2) considerations addressed to whether to order
making of by-law - proponents' rights and expectations not to
be weighed against other lot owners' interests.
COSTS - party/party - appeal from NCAT Appeal Panel - finding of
special circumstances - no mandatory considerations - unsuccessful
appeal and fact of legal representation permissible considerations
- finding of complexity - Tribunal's power to award costs
absent special circumstances - Civil and Administrative Tribunal
Act 2013 (NSW), ss 35, 60 - Civil and Administrative Tribunal Rules
2014 (NSW), rr 38 and 38A.
Civil and Administrative Tribunal Act 2013 (NSW); Civil Procedure
Act 2005 (NSW); Strata Schemes Management Act 2015 (NSW); Supreme
Court Act 1970 (NSW).
Onslow v Cullen (No 2)
[2022] NSWSC 1363
COSTS - party/party - appeals - Suitors' Fund -
application for certificate granted.
Home Building Act 1989 (NSW); Suitors' Fund Act 1951 (NSW).
Dixonbuilding Pty Ltd v Everhard
Industries Pty Ltd [2022] NSWDC
464
CIVIL PROCEDURE - summary judgment - whether defendant
demonstrates the existence of a triable issue - whether there is no
real question to be tried - whether the ultimate outcome turns upon
the resolution of disputed issue or issues of fact
CIVIL PROCEDURE - pleadings - striking out - no reasonable defence
- whether the defence is so obviously untenable that it cannot
possibly succeed
Civil Liability Act 2002 (NSW); Home Building Act 1989 (NSW);
Uniform Civil Procedure Rules 2005 (NSW).
Boulus Constructions Pty Ltd v
Warrumbungle Shire Council [2022] NSWSC
1368
BUILDING AND CONSTRUCTION - where no valid development
consent or construction certificate in relation to building works -
whether defence of illegality available in relation to claim for
breach of statutory duty under s 37 of the Design and Building
Practitioners Act 2020 (NSW) - whether managing director and
project site supervisor of builder capable of being persons for the
purposes of s 37 of that Act.
PRACTICE AND PROCEDURE - whether cross-claimant should have leave
to amend Cross-Claim List Statement - where cross-claimant seeks to
introduce claim for breach of statutory duty under s 37 of the
Design and Building Practitioners Act 2020 (NSW) - whether leave
should be refused because of availability of defence of illegality
- whether amendment should be disallowed against proposed
individual cross-defendants because they are not persons for the
purposes of s 37 of that Act - whether amendment should be
disallowed on the basis of prejudice to the proposed
cross-defendants.
Civil Liability Act 2002 (NSW); Corporations Act 2001 (Cth); Design
and Building Practitioners Act 2020 (NSW); Environmental Planning
and Assessment Act 1979 (NSW); Interpretation Act 1987 (NSW).
No 1 Victoria Dragons Pty Ltd v AEN
Developments Pty Ltd [2022] NSWSC
1345
CONTRACTS - construction - interpretation - interpretation
of a clause in a nomination deed for the development of a
residential apartment building - where the clause provided for a
specific mix of one, two and three bedroom apartments but included
a proviso that the mix "may be varied pursuant to"
statutory and council requirements - whether the inclusion of
studio apartments was a variation falling within that proviso.
Krolczyk v Winner t/as J Winner
Building Services [2022] NSWCA
196
BUILDING AND CONSTRUCTION - defective work - duty to
mitigate loss - whether appellants acted reasonably to mitigate
loss.
Civil Procedure Act 2005 (NSW); Civil and Administrative Tribunal
Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW);
Design and Building Practitioners Act 2020 (NSW); Home Building Act
1989 (NSW); Uniform Civil Procedure Rules 2005 (NSW).
Wood v Commissioner for Fair
Trading [2022] NSWCATOD
114
HOME Building Act - whether evidence establishes a wide
range of building construction work experience - whether experience
relevant industry experience - individual contractor licence -
general building work - whether evidence that work performed can be
verified by witnesses who are not supervisors - supervision level
of experience required for licence.
Administrative Decisions Review Act 1997 (NSW); Civil and
Administrative Tribunal Act 2013 (NSW); Home Building Act 1989
(NSW).
Hoare v Taylormade Residential Pty
Ltd [2022] NSWSC
1359
APPEALS - appeal from NSW Civil and Administrative
Tribunal ("NCAT") to Supreme Court - whether Appeal Panel
costs decision should be set aside - where underlying NCAT
proceedings resolved by consent orders.
Civil and Administrative Tribunal Act 2013 (NSW); Civil and
Administrative Tribunal Rules 2013 (NSW); Home Building Act 1989
(NSW).
Legislation
New South Wales
Environmental Planning Instruments
Parramatta Local Environmental Plan 2011 (Map
Amendment No 4) - published LW 14 October 2022
Port Stephens Local Environmental Plan 2013
(Amendment No 41) - published LW 14 October 2022
Shoalhaven Local Environmental Plan 2014 (Map
Amendment No 5) - published LW 14 October 2022
Woollahra Local Environmental Plan 2014 (Amendment
No 27) - published LW 14 October 2022
Ballina Local Environmental Plan 2012 (Amendment No
52) - published LW 7 October 2022
Campbelltown Local Environmental Plan 2015
(Amendment No 32) - published LW 7 October 2022
Carrathool Local Environmental Plan 2012 (Amendment
No 1) - published LW 7 October 2022
Dungog Local Environmental Plan 2014 (Amendment No
11) - published LW 7 October 2022
Fairfield Local Environmental Plan 2013 (Amendment
No 42) - published LW 7 October 2022
Georges River Local Environmental Plan 2021
(Amendment No 4) - published LW 7 October 2022
Queanbeyan-Palerang Regional Local Environmental
Plan 2022 - published LW 7 October 2022
Wagga Wagga Local Environmental Plan 2010
(Amendment No 46) - published LW 7 October 2022
Willoughby Local Environmental Plan 2012 (Amendment
No 28) - published LW 7 October 2022
Willoughby Local Environmental Plan 2012 (Amendment
No 29) - published LW 7 October 2022
Standard Instrument (Local Environmental Plans)
Amendment (Agritourism) Order 2022 - published LW 6 October
2022
State Environmental Planning Policy (Exempt and
Complying Development Codes) Amendment (Agritourism) 2022 -
published LW 6 October 2022
Bills
Government
Building and Other Fair Trading Legislation
Amendment Bill 2022
Property Tax (First Home Buyer Choice) Bill
2022
Wingecarribee Local Environmental Plan 2010
(Amendment No 64) - published LW 23 September 2022
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.