In the media
Top developer calls for post-COVID building code for
wellness
One of Australia's top developers is calling on the
residential development industry and government to rethink building
design standards so that they better foster physical and mental
well-being in the post-COVID-19 world (02 September 2020).
More...
Pandemic proofing city buildings: Using natural
ventilation to reduce the spread of airborne viruses
In Australia, our practice has been a leader in designing
contemporary towers comprising natural or mixed-mode ventilation
systems – a feature that not only improves air flow and
quality but significantly reduces a building's carbon footprint
(01 September 2020).
More...
Building approvals increase 12 per cent in July
The HomeBuilder program has been very positive for the
detached house sector but the impact of this program is yet to be
seen in ABS approval data. The lift in detached house approvals in
July is more likely to reflect building application lodgement and
processing returning to normal after the shutdown," stated HIA
Chief Economist (01 September 2020).
More...
Victoria
Extension for Victorians seeking cladding cost
claims
Victorians will be given an extra two years to pursue
legal action against builders responsible for installing
combustible cladding on their homes under legislation being
introduced to the Victorian Parliament today (03 September 2020).
More...
Metro Tunnel continues to break new ground and support
jobs
The first of the Metro Tunnel's tunnel boring machines
(TBMs) has broken through at Parkville Station, as
work continues on the biggest public transport project in
Victoria's history (28 August 2020).
More...
New South Wales
New South Wales will stop dodgy apartments from
opening
Set to commence on Tuesday, the Residential Apartments
Buildings (Compliance and Enforcement Powers) Act 2020 will give
the New South Wales Building Commissioner new powers to act to stop
dodgy construction (02 September 2020).
More...
Queensland
Final projects announced through $134.5 million
government infrastructure package
North and north-west Queensland communities will benefit
from more than $10 million to repair, rebuild and reinforce
infrastructure damaged by the 2019 monsoon trough. The 12 projects
represent the final tranche to be approved through the Australian
and Queensland governments' $134.5 million infrastructure
package (03 September 2020). More...
Queensland solar proposal could be a ray of light for
those struggling, supporters say
Thousands of jobs could be created and social housing
tenants could see energy bills slashed if a proposal to install
solar panels on public dwellings is approved by the Queensland
Government (02 September 2020).
More...
Published – articles, papers, reports
Quarterly Report by the Commonwealth Ombudsman
Quarterly Report by the Commonwealth Ombudsman under s
65(6) of the Building and Construction Industry (Improving
Productivity) Act 2016 for the period 1 April to 30 June 2020.
More...
Australian Bureau of Statistics
02/09/2020
Australian National Accounts: National Income, Expenditure and
Product, Jun 2020 (cat no. 5206.0)
01/09/2020
Balance of Payments and International Investment Position,
Australia, Jun 2020 (cat no. 5302.0)
01/09/2020
Building Approvals, Australia, Jul 2020 (cat no. 8731.0)
Cases
Victoria
Citi-Con (Vic) Pty Ltd v Trojan Built Pty Ltd
[2020] VSC 557
BUILDING CONTRACTS – Whether Adjudicator erred in
determining the reference date applicable to the Payment Claim
– Whether Payment Claim was served within prescribed time
under the Act – Whether Payment Claim is a final payment
claim – Whether Adjudicator failed to perform statutory
function under Act – Building and Construction Industry
Security of Payment Act 2002 (Vic) ss 9, 10B, 13, 14, 22, 23 and 48
– Southern Han Breakfast Point Pty Ltd (in liq) v Lewence
Construction Pty Ltd [2016] HCA 52; (2016) 260 CLR 340,
applied – Shape Australia Pty Ltd v The Nuance Group Pty
Ltd [2018] VSC 808, applied – Commercial &
Industrial Construction Group Pty Ltd v King Construction Group Pty
Ltd [2015] VSC 426, applied – Ian Street Developer
Pty Ltd v Arrow International Pty Ltd (2018) 54 VR 721,
applied – Protectavale Pty Ltd v K2K Pty Ltd [2008]
FCA 1248, applied – Hickory Developments Pty Ltd v
Schiavello (Vic) Pty Ltd [2009] VSC 156; (2009) 26 VR 112,
applied – Cat Protection Society v Arvio [2018] VSC
757, applied – Maggbury Pty Ltd v Hafele Australia Pty
Ltd [2001] HCA 70; (2001) 210 CLR 181, applied –
Wilson v Anderson (2002) 213 CLR 401, applied –
Mackie Pty Ltd v Counahan [2013] VSC 694, applied –
Levi Pty Ltd v Z&H Building Development Pty Ltd [2019]
VSC 633, applied – SSC Plenty Road Pty Ltd v Construction
Engineering (Aust) Pty Ltd [2015] VSC 631, applied.
Spirito Development Pty Ltd v Sinjen Group Pty Ltd
[2020] VCC 1368
CONTRACTS Building contract – payment claim –
whether reference date available for payment claim – whether
payment claim served prior to reference date valid – whether
payment claims validly withdrawn – whether multiple invoices
sent by separate emails can constitute one payment claim –
whether payment claim served by email after business hours can be
taken to be served on the next business day – whether failure
to provide a statement confirming payment to employees invalidates
payment claim – whether retention moneys can be withheld in
absence of payment schedule
Building and Construction Industry Security of Payment Act 2002
(Vic) ss3, 4, 7, 9(1),10B, 12, 14(2), 15, 16(2), 16(4), 17(2), 47,
48, 50; Civil Procedure Act 2010 (Vic) s61, 63.
SG Investment Group Pty Ltd v K&K Industries Pty
Ltd [2020] VCC 1341
CONTRACTS - Building contract – payment claim
– whether plaintiff accurately identified the construction
contract – whether payment claims identified the construction
work to which they related – whether payment claims invalid
because not calculated in accordance with the construction
contract
Building and Construction Industry Security of Payment Act 2002
(Vic) ss 4, 9, 10A, 10B, 12, 14(2), 15, 16(2), 17(2) and 48; Civil
Procedure Act 2010 (Vic) s61
Cool Logic Pty Ltd v Citi-Con (Vic) Pty Ltd [2020] VCC
1261
CONTRACTS - Building contracts – payment claims
– grounds for resisting payment claims when no payment
schedule is provided – whether payment claims had a valid
reference date – whether payment claim validly withdrawn
– whether payment claim served out of time – whether
payment claim included excluded amounts – whether prohibition
on excluded amounts extends to payment schedules – whether
work comprising claimable amounts must be completed when payment
claim served – principles of statutory construction –
whether payment claim failed to provide mandatory documents –
whether payment claim for retention moneys is valid
Building and Construction Industry Security of Payment Act 2002
(Vic) ss4, 9, 10, 10A, 10B, 12, 14, 15, 16(2), 17(2); Building and
Construction Industry Security of Payment Act 1999 (NSW) ss13
New South Wales
Owners of Strata Plan No 30791 v Southern Cross
Constructions (ACT) Pty Ltd (in liquidation)
[2020] NSWCA 199
BUILDING AND CONSTRUCTION — Negligence —
Miscellaneous forms of negligent conduct — Right of support
— Application of Conveyancing Act 1919 (NSW) s 177 and common
law — Whether loss of support caused damage to adjoining
property.
TORTS — Negligence — Essentials of action for
negligence — Whether there was a failure to take reasonable
care — Whether any failure caused damage — Assessment
of expert evidence.
TORTS — Negligence — Proof of negligence — Res
ipsa loquitur.
MTR Corporation (Sydney) NRT Pty Ltd v Thales Australia
Ltd [2020] NSWSC
1147
BUILDING AND CONSTRUCTION – determination under the
Building and Construction Industry Security of Payment Act 1999
– whether adjudicator acted beyond jurisdiction –
whether adjudicator denied plaintiffs procedural fairness by
deciding claim in favour of first defendant on basis not advanced
by either party – whether adjudicator failed to consider
relevant matters. Building and Construction Industry Security of
Payment Act 1999 (NSW)
Valmont Interiors Pty Limited v Giorgio Armani
Australia Pty Limited [2020] NSWDC
395
BUILDING AND CONSTRUCTION – Construction contract
– Completion – delay damages – scope of work
– defects. Civil Procedure Act 2005, s 90(2)(b); Airports
(Building Control) Regulations 1966 (Cth), reg 2.03(4)
Queensland
Glencore Coal Queensland Pty Limited v Aurizon Network Pty
Ltd & Ors;Yarrabee
Coal Company Pty Ltd & Ors v Aurizon Network Pty Ltd &
Ors [2020] QCA 182
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES –
CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION
OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – where the
first respondent to each appeal operates a rail network for
shipping coal from mines to several port facilities in Queensland
– where the appellants are coal mining companies which use
the network – where each of the appellants contracted with
the first respondent for the first respondent to upgrade the
capacity of the network to facilitate the transport of coal to the
Wiggins Island Coal Export Terminal (WICET)
– where one of the appellants gave a notice, purportedly
under cl 6.1(c) of the deed, that would have reduced its liability
to pay certain fees to nil, and required the other parties to pay
for its share – where the other appellants served notices the
next day, which would have put all the liability for the fees,
which were estimated to total $480 million, onto one company
– where the first respondent argued that upon the proper
construction of the deeds or as a result of an implied term, a
notice could not be given under cl 6.1(c) unless it was given
because the Customer would not be using that part of the rail
network in order to transport its coal to WICET – whether, on
the correct construction of the text or as a result of an implied
term, the notices were valid
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES –
CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION
OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – where the
first respondent argued that the appellants could give a notice
under cl 6.1(c) only if acting in good faith, and none of the
appellants had done so – whether there was an implied term of
good faith, and if so, whether it was breached
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES –
CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION
OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – where the
deeds provided that a notice under cl 6.1(c) could be given prior
to the date on which a certain milestone in the development of
WICET, measured by the capacity of its facilities, was reached
– whether the capacity of WICET had reached that milestone
before the date on which the notices were given
Adani
Abbot Point Terminal Pty Ltd v Lake Vermont Resources Pty Ltd &
Ors [2020] QSC 260
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND
CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION –
UNCONSCIONABLE CONDUCT – WHAT CONSTITUTES – where the
applicant is the owner, and the respondents are users, of a coal
terminal – where user agreements exist between the applicant
and the respondents –– where the respondents argue that
as the result of a series of agreements the applicant in effect
received payment of a previous user's future obligations while
requiring the remaining users to pay the equivalent of those
obligations as charges under the user agreements – where the
applicant was in a monopolistic position – where market
conditions put the respondents in a vulnerable position –
where applicant was acting in the interests of related corporation
as well as its own interests – where there were alternative
courses of action available to the applicant – whether
applicant went beyond its legitimate commercial interests –
pricing of monopoly asset – situational disadvantage and
vulnerability – where there was no breach of contract –
dishonest behaviour and want of good faith – whether the
applicant's conduct was in all the circumstances unconscionable
in contravention of s 21(1) of the Australian Consumer Law
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.
