In the media
Dodgy builders will have to take tests to keep licenses
in Canberra
Problem builders will be forced to undergo skill and
technical knowledge tests under a stricter licencing regime being
introduced next year, as the ACT Government moves to crack down on
poor quality in the building industry (15 April 2018).
More...
HIA: States and Renters in Capital Gains Tax Firing
Line
According to research released today, an increase in
Capital Gains Tax would result in a $1bn reduction in revenue to
state Governments, increase the cost of renting and exacerbate the
housing affordability challenge, stated Tim Reardon, HIA's
Principal Economist (15 April 2018).
More...
Flammable cladding prompts Melbourne lawyers to prepare
for class action over 'ticking time bomb' buildings
Lawyers are preparing a class action against construction
companies who have installed dangerous combustible cladding on
buildings, in a move a Melbourne law firm has dubbed a
"Goliath versus Goliath" battle (11 April 2018).
More...
New South Wales
NSW to harness power of water for energy
The Minister for Energy and Utilities, Don Harwin, today
announced the NSW Department of Planning and Environment is
entering into a partnership with WaterNSW to help boost the
state's energy security, seeking interest from private
companies to look at both large and small-scale opportunities
utilising our WaterNSW infrastructure (19 April 2018).
More...
Plans to revitalise Gosford
The NSW Government has released plans that will improve
Gosford's commercial, retail, lifestyle and cultural life. The
NSW Government Architect has provided recommendations to revitalise
Gosford's city centre, with Kibble Park as the "civic
heart" of the city (18 April 2018).
More...
Social enterprise real estate agency launches in
Sydney
A real estate agency launched in Sydney last week aims to
change the game on affordable housing by connecting those in need
with investment property owners keen to be part of the solution (17
April 2018).
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Georgious secures $40 million contract in NSW
National building construction, engineering and property
development company Georgiou Group has been awarded the New England
Highway Upgrade (17 April 2018).
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Strata legislative changes should clarify mixed use
buildings
The proposed amendments to the Strata Act clarify a
number of issues but raise further concerns about the practical
implementation of the building defects scheme, says Urban Taskforce
CEO, Chris Johnson (13 April 2018).
More...
NSW Won't be Held to Ransom on Light Rail
NSW Premier Gladys Berejiklian says her government
won't be held to ransom by a Spanish subcontractor building the
delayed Sydney light rail project to the eastern suburbs (10 April
2018).
More...
Delivering better road infrastructure for a future
Dubbo
Member for Dubbo Troy Grant today announced the Dubbo
community is set to benefit from a raft of road infrastructure
improvement projects which will provide the city with improved
travel times and better safety and connectivity (06 April 2018).
More...
Practice and courts
New South Wales
Reminder: Public submissions on cladding
Submissions are being sought about a range of issues set
out in the Notice issued by the Commissioner. The call is seeking
input about the kinds of issues that should be considered including
the range of uses of products, uses on different types of
buildings, and by different people, and whether any conditions
should be attached to product uses. Submissions closed on 23 April
2018. More information about cladding and the call for
submissions can be found at www.fairtrading.nsw.gov.au.
More....
NSW Infrastructure Grants for community projects
Local communities can apply for a share of $12.5 million
in funding for projects across arts and culture, emergency
preparedness and sport and recreation. Applicants have four
opportunities to apply for grants throughout the year: February and
May 2018. The new funding guidelines will mean the government can
fund a wider range of projects.
More...
Cases
Stone v Melrose Cranes & Rigging Pty Ltd, in the matter
of Cardinal Project Services Pty Ltd (in liq) (No 2)
[2018] FCA 530
CORPORATIONS – where the plaintiffs seek to claw
back payments made by the company to the defendant prior to its
liquidation – whether the company was insolvent at the time
each of the payments were made – whether any payments made to
the defendant were unfair preferences within the meaning of s588FA
of the Corporations Act 2001 (Cth) (Act)
– whether any payments are an integral part of a continuing
business relationship between the company and the defendant
pursuant to s588FA(3) of the Act – whether the defendant has
a good faith defence pursuant to s588FG(2) of the Act –
whether a set-off pursuant to s553C of the Act is available in the
event that the defendants are required to pay the unfair preference
amount.
Stay Mining Accommodation Pty Ltd v Grounded Construction
Group Pty Ltd [2018] FCA 519
CORPORATIONS - Application to set aside statutory demand
- whether genuine dispute as to the existence of debt for
remuneration for construction work under contract - character of
determination by adjudicator under Construction Contracts Act
2004 (WA) - pending application for judicial review - whether
'some other reason' for setting aside the statutory demand
- Construction Contracts Act 2004 (WA) ss30, 38, 39(1),
40, 43, 45(1), 45(4); Corporations Act 2001 (Cth)
ss459G(3), 459H, 459J, 459L.
Construction, Forestry, Mining and Energy Union v Hail
Creek Coal Pty Ltd (No 2) [2018] FCA
480
INDUSTRIAL LAW – industrial action –
contraventions of s50 of the Fair Work Act 2009 (Cth)
– assessment of penalties – form of declaratory order.
The respondent pay a penalty of $90 for each of its 506
contraventions of s50 of the Fair Work Act 2009 (Cth), a
total of $45,540.
Parker trading as On Grid Off Grid Solar v Switchee Pty Ltd
trading as Australian Solar Quotes [2018] FCA
479
CONSUMER LAW –misleading or deceptive conduct
– false or misleading representation of sponsorship, approval
or affiliation – respondent refusing to remove material from
website unless applicant purchases further services from it –
unconscionable conduct – contraventions established –
declaratory relief granted – injunctive relief granted
– insufficient evidence of damage, applicant to be provide
further opportunity to establish entitlement to monetary relief
– Australian Consumer Law ss18, 20, 21, 22, 29, 232,
236.
Wilson v Dash [2018] NSWCATAP
91
Questions of law – absence of evidence - extra
construction work, contractual regime for variations not followed -
quantum meruit - Civil and Administrative Tribunal Act 2013;
Civil and Administrative Tribunal Rules 2014.
This appeal arises out of a home building case heard in the
Consumer and Commercial Division of the Tribunal in July 2016.
There were two applications heard by the Tribunal Member. First,
the appellants claimed for incomplete and defective work, refund of
money alleged to have been overpaid to the respondent, lost rent
and costs. Secondly, the respondent claimed for variations. For the
reasons provided, we dismiss the appeal. In the event either party
wishes to make an application for costs, the orders below deal with
that.
Tzaneros Investments Pty Ltd v Walker Group
Constructions Pty Ltd (No 4) [2018] NSWSC
431
COSTS – Party/Party – Whether to make a gross
sum costs order – Difficulty of making a fair assessment on a
gross sum basis – Effect of delay in making the application.
The proceedings concerned a claim for damages brought by the
plaintiff (Tzaneros) in relation to defective concrete paving at a
container terminal at Molineaux Point, Port Botany.
Maiolo v
Chiarelli (No 2) [2018] NSWCATAP
86
Frank Chiarelli and Vicki Woodward are granted an
extension of time to 14 February 2018 to file and serve their costs
application. Existence of Special circumstances in connection with
an application for costs.
Civil and Administrative Tribunal Act 2013; Home Building Act
1989.
Obeid v Lockley [2018] NSWCA
71
TORTS – Misfeasance in public office –
officers of ICAC appointed as senior investigators recorded
contents of documents on video during execution of search warrant
– whether officers held public office – whether
officers acted in excess of power – whether officers were
aware of or recklessly indifferent to a likely risk of harm to the
plaintiffs – whether sufficient for there to be a reasonable
foreseeable risk of harm – whether officers caused damage to
the plaintiffs.
Hiettecorp Pty Ltd ATF Hiette Unit Trust v Queensland
Building and Construction Commission [2018]
QCAT 105
PROFESSIONS AND TRADES – BUILDERS – STATUTORY
POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING
WORK – where owner claims defective building work –
where Queensland Building and Construction Commission makes
decision to issue a direction to rectify to the contractor –
where contractor sub-contracted to a third party to install a solar
hot water system – where subcontractor assessed roof to be
structurally sound – where subcontractor did not possess
qualifications to make that assessment – where subcontractor
did not possess qualifications to install – finding of
structural defective building work – whether decision to
issue a notice to rectify defects was unreasonable.
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS
– where Applicant has the responsibility to abide by the
Building Code – where Applicant seeks to abrogate those
responsibilities to the home owner through the terms and conditions
of a contract.
IW & CA Price Constructions Pty Ltd v Australian
Building Insurance Services Pty Ltd [2018]
QCA 076
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND
TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW
EVENT – GENERAL PRINCIPLES AND EXERCISE OF DISCRETION –
where the first respondent was awarded damages for lost profits and
lost goodwill caused by the appellant's breach of contract
– where, on appeal, the award of damages was varied by
excluding damages for lost goodwill – where the issue of lost
goodwill was a significant one at trial – where only one of
the four grounds of appeal succeeded – where the damages
payable to the first respondent were reduced by approximately ten
per cent – whether the first respondent should pay the
appellant's costs of the appeal – whether the costs
orders made at trial should be varied.
Boral Resources (Qld) Pty Limited v Gold Coast City
Council [2018] QCA 075
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING
– PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND –
GENERALLY – where the respondent refused to grant the
applicant a permit for a material change of use of land –
where the proposal was for the development of a large hard rock
quarry in the Gold Coast Hinterland – where the applicant
submitted that the primary judge did not give a practical,
common-sense meaning to s3.5.5.1(10) of CityPlan 2016
– where the applicant submitted the words
"appropriately" or "to an acceptable level"
ought to have been interpolated into s3.5.5.1(10) – whether
the primary judge erred in law in interpreting s3.5.5.1(10).
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING –
PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND –
GENERALLY – where the respondent refused to grant the
applicant a permit for a material change of use of land –
where the proposal was for the development of a large hard rock
quarry in the Gold Coast Hinterland – where the primary judge
found that the proposal would conflict with s3.5.5.1(10)(b) of
CityPlan 2016 – where the applicant submitted the
primary judge mischaracterised the koala habitat that exists on the
land as a matter of environmental significance – where the
applicant submitted it is the koala that is a matter of
environmental significance, not its habitat – where there
were 23,000 non-juvenile koala habitat trees on the subject land
– whether the primary judge erred in characterising the whole
of the quarry footprint as a matter of environmental significance
for the purposes of s3.5.5.1(10)(b).
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING –
PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND –
GENERALLY – where the respondent refused to grant the
applicant a permit for a material change of use of land –
where the proposal was for the development of a large hard rock
quarry in the Gold Coast Hinterland – where the applicant
conceded its proposal conflicted with the Gold Coast Planning
Scheme 2003 – where the primary judge observed that if
the applicant's proposal does not succeed under CityPlan
2016, its prospects of success under the Gold Coast Planning
Scheme 2003 are even more unlikely – whether the primary
judge failed to apply s25 and s36 of the Sustainable Planning
Act 2009 (Qld) with respect to State Planning Policy
2013 and the South East Queensland Regional Plan
respectively.
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING –
PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND –
GENERALLY – where the respondent refused to grant the
applicant a permit for a material change of use of land –
where the proposal was for the development of a large hard rock
quarry in the Gold Coast Hinterland – where CityPlan
2016 was a relevant instrument – where the applicant
submitted that the primary judge failed to give adequate reasons
for his decision – whether the primary judge erred by failing
to give adequate reasons for his decision.
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING –
PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND –
GENERALLY – where the respondent refused to grant the
applicant a permit for a material change of use of land –
where the proposal was for the development of a large hard rock
quarry – where the primary judge refused the application, but
observed that the resource should be protected for future
exploitation – where the applicant submitted this reasoning
was irrational and illogical – where the applicant submitted
unless the resource is exploited now, it will never be exploited
– where the respondent submitted the primary judge's
observation envisaged that the resource may become exploitable at
some time in the future under a later planning scheme –
whether there was irrationality in the primary judge's
determination that there were not "sufficient grounds" to
justify approval.
Springsure Creek Coal Pty Ltd v Arcturus Downs Limited (No.
2) [2018] QLC 8
ENERGY AND RESOURCES – MINERALS – MINING FOR
MINERALS – TITLES: RIGHTS, PERMITS, LICENCES AND LEASES ETC
– where application for mining lease initially filed and
approved by mining registrar varies from application for mining
lease presently before the Land Court of Queensland for objection
hearing – whether change in ownership of company applying for
mining lease is sufficient to make the application substantially
different – whether the application is so different that the
application no longer complies with the requirements under the
Mineral Resources Act 1989 – whether these
differences amount to failure to comply with the requirements under
the Act – whether the applications are void – whether
the Land Court has jurisdiction in the situation where the
applications are considered to be non-compliant with the
requirements under the Act.
ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS
– ENVIRONMENTAL PROTECTION LEGISLATION – where the
areas under the mining lease and environmental authority
applications are subject to the Strategic Cropping Land Act
2011 – where environmental authority cannot issue until
strategic cropping land protection decision has been made –
where strategic cropping land decision has been made –
whether the applicant for the environmental authority can meet the
conditions imposed by the strategic cropping land decision –
where strategic cropping land conditions refer to 'good quality
agricultural land' – whether rehabilitation to 'best
possible class of agricultural land' includes returning the
land to its condition prior to the mining – whether this is
possible in the circumstances – whether this is a requirement
under the Strategic Cropping Land Act 2011 – whether
evidence led that the applicant cannot possibly return the land to
this condition should result in a decision not to recommend the
mining lease be granted.
Paddon v Queensland Building and Construction
Commission [2018] QCAT
100
PROFESSIONS AND TRADES – BUILDERS – LICENCES
AND REGISTRATION – OTHER MATTERS – where a plumber had
been considered an excluded individual for both a bankruptcy event
and a company event prior to amendments to the relevant legislation
in 2014 – where the plumber was considered by the QBCC to be
a permanently excluded individual – whether the amending
legislation has retrospective effect.
PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – OTHER
MATTERS – where leave to extend time was required to proceed
with an application to review a decision to refuse to categorise
the plumber as a permitted individual.
Chelbrooke Homes Pty Ltd v Queensland Building and
Construction Commission [2018] QCAT
096
PROCEDURE – CIVIL PROCEEDINGS IN STATE OR TERRITORY
COURTS – PARTIES AND REPRESENTATION – LEGAL
REPRESENTATION – GENERALLY – where leave for legal
representation sought – where application for leave opposed
by other party – whether interests of justice require leave
to be granted.
Buttler Engineering Pty Ltd v Newsteel Pty
Ltd (Building and Property) [2018] VCAT
599
Domestic Building – claim for loss associated with
drawings – question arises about whether there was a term of
the agreement about liability and where liability lies –
claim dismissed.
Formation Landscapes Pty Ltd v Stonnington Fences &
Gates Pty Ltd (Building and Property) [2018]
VCAT 506
Contract for the supply and installation of pedestrian
and vehicle gates; applicant specified that the gates to be
constructed of Treated Pine timber; gates as supplied were
constructed of Oregon timber as specified in respondent's
quotation accepted by applicant; applicant claimed cost of
replacement of gates with gates constructed of Treated Pine timber;
contract between parties found to be for gates constructed of
Oregon; gates found to be fit for purpose; claim dismissed.
Stand v Revive Services Pty Ltd
(Building and Property) [2018] VCAT 533
Domestic building - alleged defects, plumbing and
electrical works undertaken by unregistered person to the knowledge
of the owner, refund, pergola smaller than contracted for, damages
reduced to take into account "cash discount". The
respondent must pay the applicant $1,682 forthwith.
Legislation
New South Wales
Regulations and other miscellaneous instruments
Roads Amendment (Toll Relief Scheme) Regulation 2018 (2018-140) — published LW 13 April 2018.
Bills introduced - Government
Coal Industry Amendment Bill 2018 — 13 April 2018.
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.
