In the media
Infrastructure-led recovery underway in construction,
but challenges remain
Construction activity has returned to growth, with
increased optimism for workloads to grow in 2021. RICS' global
construction activity index has climbed to +3, up from -24 in Q2.
Infrastructure has led recovery, with growth particularly in ICT
and energy sectors (04 February 2021). More...
Resources sector driving jobs growth
Minister for Resources, Water and Northern Australia Keith
Pitt says the latest jobs figures have again confirmed the
importance of the mining industry to Australia with a big increase
in the number of Australians employed in the sector (29 January
2021). More...
HomeBuilder leads to spike in material and labour costs,
stinging home buyers
HomeBuilder has provided a shot in the arm to the housing
sector, with households taking on record levels of debt to fuel the
nation's economic recovery. But increased demand has already
pushed up the price of materials and labour, squeezing the budgets
of home buyers and renovators (28 January 2021). More...
Why blockchain just might be the answer to better
construction
Blockchain could unlock desperately needed modernisation
in Australia's construction industry, according to Professor
Srinath Perera from Western Sydney University's Centre for
Smart Modern Construction (28 January 2021). More...
Victoria
Victoria slips down HIA's Housing Scorecard
sharply
A cooling of Victoria's housing market conditions has
been on the horizon for a while now and the COVID shock appears to
have accelerated this trend, said Executive Director Fiona Nield
(03 February 2021). More...
Victoria cladding ban takes effect
Victoria's ban on the use of high-risk cladding
products in new multi-storey buildings takes effect, with the move
expected to produce a net economic benefit of $1 million annually
from reduced insurance costs (01 February 2021). More...
New South Wales
World's largest battery to be built in Hunter
Valley
The world's largest grid-scale solar battery, with a
potential capacity of 1200 megawatts - about eight times the size
of the South Australian big battery - is to be built in the NSW
Hunter Valley at Kurri Kurri, 35 kilometres north-west of Newcastle
(05 February 2021). More...
Queensland
Major works on display for new, year-round Exhibition
train station
Part of the Palaszczuk Government's $50 billion
infrastructure pipeline over the next four years, construction has
started on the new Exhibition station at the RNA Showgrounds,
meaning year-round trains for Brisbane's fastest-growing
entertainment, business and health precinct are a step closer (04
February 2021). More...
Gold Coast's Seaway Promenade nears completion
A new promenade making the most of expansive views along
the Gold Coast's spectacular coastline is nearing completion at
The Spit (02 February 2021). More...
Cases
Victoria
Brady Queen Pty Ltd & Ors v
Austhome Developments Pty Ltd &
Ors [2021] VSC
18
CONTRACT - joint venture heads of agreement - each joint
venture party alleges breach of numerous obligations by the other -
some breaches found - breaches did not cause any loss - each
party's claim dismissed.
EQUITY - fiduciary duty - joint venture party alleges that other
joint venture party in breach of fiduciary duty by undertaking
competing project.
EQUITY - existence of fiduciary duty - extent and scope of
fiduciary duty in the circumstances - no fiduciary duty in all of
the circumstances - alternatively, if fiduciary duty, limited in
scope - Hospital Products Ltd v United States Surgical
Corporation [1984] HCA 64; (1984) 156 CLR
41; Adventure Golf Systems Australia Pty Ltd v Belgravia
Health & Leisure Group Pty Ltd [2017] VSCA 326;
(2017) 54 VR 625; Chickabo Pty Ltd v Zphere Pty
Ltd [2019] VSC 73; Howard v Commissioner of
Taxation [2014] HCA 21; (2014) 253 CLR 83.
EQUITY - breach of fiduciary duty - no breach of fiduciary duty in
all of the circumstances - Howard v Commissioner of
Taxation [2014] HCA 21; (2014) 253 CLR 83.
EQUITY - causation - any breach of fiduciary did not cause any loss
- Ancient Order of Foresters in Victoria Friendly Society
Limited v Lifeplan Australia Friendly Society
Limited [2018] HCA 43; (2018) 92 ALJR 918.
New South Wales
Falzon v Evans
[2021] NSWCATAP 25
BUILDING AND CONSTRUCTION -proof of loss for incomplete
and defective building work APPEALS - extension of time in which to
lodge appeal - no error of law - no error warranting leave to
appeal
Southern Oil Refining Pty Ltd v
Hydrodec Australia Pty Ltd [2021] NSWSC
24
CONTRACTS - construction - interpretation - co-location of
refinery plant - owner's obligation to make capital payments
based on operator's installation expenditure - later informal
variation for further expenditure - whether effective -
operator's obligations to maintain expenditure records and
submit to audit - whether complied with - expert determination of
"written down value" - whether binding - whether owner
entitled to leave plant behind on termination of contract - whether
owner obliged to remove plant on termination of contract CONTRACTS
- breach of contract - co-location of refinery plant -
operator's obligation to maintain co-located plant - whether
obligation breached - whether owner's obligation to pay tolling
fees dependent on operator's compliance - whether tolling fees
already paid recoverable as damages - owner contractually entitled
to remove plant - operator's obligation to co-operate - whether
obligation breached by interfering with owner's contractors -
operator's obligation to manage refinery feedstock - whether
obligation breached by mixing contaminated and non-contaminated
feedstock TORTS - interference with goods - conversion -
co-location of refinery plant - owner contractually entitled to
remove plant - whether interference by operator with owner's
contractors would amount to conversion of plant EQUITY - equitable
remedies - injunction - trespass - co-location of refinery plant -
plant abandoned on land by owner after termination of contract -
whether abandonment effective - whether damages an adequate remedy
- mandatory injunction for removal GUARANTEE AND INDEMNITY -
discharge of guarantor -- variation increasing principal's
liability to creditor - whether surety consented - whether creditor
breached record-keeping duties and obligation to co-operate with
principal - whether surety discharged by such breaches EVIDENCE -
character evidence - tendency rule - application of rule to
corporate entity - probative value.
Queensland
Civil Contractors (Aust) Pty Ltd v
Galaxy Developments Pty Ltd & Ors; Jones v Galaxy Developments
Pty Ltd & Ors [2021] QCA
10
STATUTES - ACTS OF PARLIAMENT - STATUTORY POWERS AND
DUTIES - CONSTRUCTION - GENERALLY - where an adjudicator held that
Civil Contractors (Aust) Pty Ltd (CCA) should
recover an adjudicated amount of $1.4 million from Galaxy
Developments Pty Ltd (Galaxy) - where, on
Galaxy's application, the primary judge held that the
adjudicator's decision was delivered beyond any relevant time
limit under Building Industry Fairness (Security of Payment) Act
2017 (the Act), and at least for that reason, was
void - whether, upon the proper construction of the Act, the
adjudicator's jurisdiction is defined by the relevant time
limit, in that the adjudicator's powers cease once the time
limit has passed
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - SCHEDULES - where
the primary judge held that upon the proper construction of the
Queensland Building and Construction Commission Act 1991 and the
Queensland Building and Construction Commission Regulation 2018,
CCA did not hold a building licence to carry out all of the work in
question, with the consequences that the building contract under
which CCA claimed to be paid was void and for that reason also the
adjudicator's decision was void - where CCA held a building
licence in the category "Builder restricted to structural
landscaping licence" - whether some of the works carried out
by CCA were outside the scope of its licence
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE
WITH JUDGE'S FINDINGS OF FACT - OTHER MATTERS - where the
primary judge found that the adjudicator could not be said to have
acted in good faith, and that the adjudicator had made a
misrepresentation, with the consequence that the adjudicator was
not entitled to be paid any fees - whether the findings of bad
faith and misrepresentation ought to have been made without
providing the adjudicator with an opportunity to be heard on those
subjects - whether, given the adjudicator failed to make a decision
on the application within the required time, the adjudicator is
entitled to be paid any fees
Building and Construction Industry Security of Payment Act 2002 Vic
s 22(4), s 23(2B), s 28(2)(a)
Building Industry Fairness (Security of Payment) Act 2017 Qld s 85,
s 86, s 94, s 95
Queensland Building and Construction Commission Act 1991 Qld s
42
Queensland Building and Construction Commission Regulation 2018 Qld
sch 1
Wiggins Island Coal Export Terminal Pty
Limited v Civil Mining & Construction Pty
Ltd [2021] QCA
8
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY
COURTS - COSTS - OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND
SETTLEMENTS - OFFER OF COMPROMISE OR OFFER TO SETTLE OR CONSENT TO
JUDGMENT PURSUANT TO RULES - GENERALLY - where there was a claim
and counterclaim - where the appellant made an "all-up"
offer to settle "all claims in the proceeding" which was
expressed to be under ch 9 pt 5 of the Uniform Civil Procedure
Rules 1999 (the Rules) - where the offer did not
distinguish between the claim and counterclaim - where the trial
judge held that rr 360 and 361 of the Rules did not apply to the
appellant's offer to settle because it did not distinguish
between the claim and counterclaim - where the trial judge ordered
each party to pay the other's costs in the proceeding in which
it was unsuccessful - where the appellant appeals the costs order
on the basis that the offer to settle was effective under the Rules
- whether rr 360 and 361 of the Rules apply to the appellant's
offer to settle
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS
- OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS -
INFORMAL OFFERS AND CALDERBANK LETTERS - where the appellant's
offer to settle was accompanied by a letter which bore the heading
"Without prejudice except as to costs" - where the
appellant argues that, if its offer to settle did not engage rr 360
and 361, it should have been treated as an effective Calderbank
offer - whether the appellant's offer to settle should have
been taken into account in the exercise of the costs discretion
under r 681 of the Rules
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS
- APPEALS AS TO COSTS - RELEVANT PRINCIPLES - WHERE DISCRETION NOT
EXERCISED - ADEQUACY OF REASONS - where the appellant submits that
the respondent failed to comply with its obligations under r 5 of
the Rules in its approach to other offers to settle made early in
the proceedings - where the trial judge concluded that the
complaints made by the appellant against the respondent did not
warrant a departure from the general rule that costs follow the
event - where the appellant argues that the trial judge erred by
failing to give this matter sufficient weight in exercising the
Court's discretion under r 681 - where the appellant argues
that the trial judge failed to give adequate reasons for his
conclusion - whether the complaint that the trial judge gave
insufficient weight to the respondent's approach to the early
offers warrants appellant review - whether the trial judge's
reasons were adequate. Uniform Civil Procedure Rules 1999 Qld r
181, r 352, r 353, r 360, r 361, r 364
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.
