Residential Focus: Part 2 - In the media, In practice and courts, Published articles, Cases and Legislation - Real Estate

In the Media

Is there a way out? Construction insolvencies must stop
Construction industry insolvencies have reached their highest levels in almost a decade, with recent figures from ASIC showing companies going into external administration for the first time hit 1672, with 71 of those occurring in April. The industry must reform (20 June 2023). More...

National Precast calls for quality assurance transparency
The National Precast Concrete Association Australia is calling on construction stakeholders to improve efficiency and reduce waste by seeking smarter ways to build. While the construction industry in Australia is a major contributor to the economy, it faces an intractable labour productivity challenge (19 June 2023). More...

New planning rules mean more affordable housing
The NSW Government has announced changes to the planning system to encourage and incentivise the construction of additional homes, including more social housing. The plan will achieve more affordable housing and will come into force later this year (15 June 2023). More...

In practice and courts

Decisions reserved as at 16 June 2023
The Court of Appeal maintains a list of matters before the Court for which judgment is reserved. Read more here.

Australian Building Codes Board advisory note on EV Charging
To support Australians making the switch to electric vehicles (EV), the National Construction Code (NCC) is requiring new buildings to be ready for EV charging. To help industry, the ABCB has published a new advisory note (13 June 2023). Read more here.

Australian Building Codes Board overview of assessment methods
The ACAB has provided an overview of the Assessment Methods used when determining compliance with the National Construction Code's mandatory Performance Requirements (June 2023). Read more here.

Published – articles, papers, reports

Housing Industry Association: Statutory warranties for home building work in NSW
When you carry out residential building work in New South Wales for an owner where the value is more than $5000 you are deemed to make certain promises to the owner (and possible future owners of the property) in relation to that work. These take the form of statutory warranties. Read more here.

Housing Industry Association: New home sales increase for second month in May
The HIA New Home Sales report – a monthly survey of the largest volume home builders in the five largest states – is a leading indicator of future detached home construction. "Sales of new homes increased by 9.4 per cent in the month of May 2023 compared to the previous month, leaving sales in the last three months higher by 4.4 per cent on the previous quarter," added Mr Devitt (16 June 2023). Read more here.

Cases

Middleton v Wrona [2023] NSWCATAP 158
BUILDING AND CONSTRUCTION – lump sum contract – additional work – payment of progress payments – effect of progress payments – overpayment of contract sum – entitlement to recover overpayment – breach of contract – obligation to account.
RESTITUTION – entitlement to recovery – money had and received – need to prove "qualifying or vitiating" factor – onus of proof.
BUILDING AND CONSTRUCTION – order to demolish and rebuild garage – competing evidence – challenge to Tribunal's evaluation of evidence.
Australian Consumer Law (NSW); Civil and Administrative Tribunal Act, 2013 (NSW); Civil and Administrative Tribunal Rules, 2014 (NSW); Contracts Review Act 1980 (NSW) and Home Building Act 1989.

The Owners – Strata Plan No 91016 v Upright Builders Pty Ltd [2023] NSWSC 649
CIVIL PROCEDURE – application for separate question – application to amend summons and list statement.
Encroachment of Buildings Act 1922 (NSW); Environmental Planning and Assessment Act 1979 (NSW); Home Building Act 1989 (NSW); Local Government Act 1919 (NSW); Roads Act 1993 (NSW) and Uniform Civil Procedure Rules 2005 (NSW).

Drummond v Gordian Runoff Ltd [2023] NSWSC 607
INSURANCE – "delayed claim" under "last resort" home warranty insurance policy – s 103BB, Home Building Act 1989 (NSW) – insured risk, being builder's insolvency, materialises three years after end of period of cover – insured does not give notice under s 103BB(3) – whether s 54 Insurance Contracts Act 1984 (Cth) applies – s 103BB directly alters parties' rights and obligations – s 54 provides relief against "the effect of a contract of insurance" not the effect of State law.
CONSTITUTIONAL LAW – inconsistency of Commonwealth and State laws – whether s 103BB, Home Building Act 1989 (NSW) inconsistent with s 54, Insurance Contracts Act 1984 (Cth) – no inconsistency – s 54, Insurance Contracts Act not engaged as the "effect" is not "the effect of a contract of insurance" but of State law.
Home Building Act 1989 (NSW); Home Building Amendment (Insurance) Act 2009 (NSW); Home Building Amendment Act 2011 (NSW); Home Building Regulation 2004; Insurance Contract Act 1984 (Cth); NSW Self Insurance Corporation Amendment (Home Warranty Insurance) Act 2010 (NSW) and Retail Leases Act 1994 (NSW).

Paul Voutef v Commissioner for Fair Trading [2023] NSWCATOD 79
ADMINISTRATIVE REVIEW – whether Applicant is disqualified under sections 20(1)(c) and 33A of Home Building Act 1989 (NSW) – whether offence involving honesty should be ignored under section 33A(2) of Home Building Act 1989 (NSW) because of the time that has passed – whether Applicant is a fit and proper person to hold contractor licence under sections 20(1)(a) and 20(1A) of Home Building Act 1989 (NSW).
Administrative Decisions Review Act 1997 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Crimes (Sentencing Procedure) Act 1999 (NSW); Home Building Act 1989 (NSW) and Home Building Regulation 2014 (NSW).

BlueSky Property Builders Australia Pty Ltd v Dey [2023] NSWCATAP 153
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – statutory warranty – defences – section 18F – whether plans and specifications constitute an "instruction given in writing" for the purposes of s 18F.
BUILDING AND CONSTRUCTION – defective building work – assessment of damages – consequential loss – cost of alternative accommodation while rectification work being undertaken – first limb in Hadley v Baxendale – loss flowing naturally from the builder's breach of statutory warranty.
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – section 48MA preferred outcome – not inappropriate to take into account the builder's failure to follow an instruction from the private certifier.
Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW); Environmental Planning and Assessment Act 1979 (NSW); Environmental Planning and Assessment Regulation 2000 (NSW) and Home Building Act 1989 (NSW).

Legislation

New South Wales legislation

Regulations and other miscellaneous instruments
Notice under the Land Acquisition (Just Terms Compensation) Act 1991 – published LW 16 June 2023.
Environmental Planning and Assessment Amendment (Fees) Regulation 2023 – published LW 9 June 2023.
Environmental Planning and Assessment Amendment (Sydney Terminal Building (Central Station) Revitalisation Project) Order (No 2) – published LW 9 June 2023.

Bills assented to
First Home Buyer Legislation Amendment Act 2023 No 4 – assented to 08 June 2023.

Commonwealth legislation

Bill
Freeze on Rent and Rate Increases Bill 2023 20/06/2023.

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.

Australia: Residential Focus: Part 2 - In the media, In practice and courts, Published articles, Cases and Legislation

In the Media

In practice and courts

Published – articles, papers, reports

Cases

Legislation

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