In the media
Build to rent needs institutional investment, housing
minister says
Housing Minister Julie Collins says there is a
"realistic prospect" of establishing build-to-rent real
estate as a "significant new investment asset class" with
the federal government now considering several reforms to encourage
financing (11 September 2023). Read more here.
Australia is in a housing crisis and experts say the
solution is building up, not out
Last month, federal, state and territory governments
announced a commitment to build 1.2 million new homes in five years
from July next year. However, the NSW government has flagged
allowing higher and denser development if developers commit to
setting aside 15 per cent for affordable housing (7 September
2023). Read more here.
Coffs Harbour's Argyll Estate rezoning proposal
scrapped by NSW government over social housing numbers
The New South Wales Housing Minister has moved to scrap
plans that could have created nearly 500 new homes in Coffs Harbour
on the state's mid-north coast, saying the proposal did not
deliver enough social housing. The Argyll Estate rezoning proposal
would have resulted in the 127-home social housing estate being
transformed into a mixed-density development (7 September 2023).
Read more here.
Published
Change to penalties and union right: a risk to the
residential building industry?
The Closing Loopholes Bill, introduced into Federal
Parliament on Monday, 4 September 2023 risks acting as a
"disincentive to run a business particularly a small business
in the residential building industry" stated Jocelyn Martin,
Housing Industry Australia Managing Director. The Bill proposes
increasing penalties for non-serious breaches of workplace laws to
nearly $1 million (7 September 2023). Read more here.
Industrial Relations Bill opposed by the Master
Builders
Master Builders Australia (MBA) calls for
Parliament to oppose the industrial relations Bill that "takes
the sledgehammer to tradies" right across the country, says
MBA CEO Denita Wawn. MBA is now in the process of combing through
the legislation and will respond to specific elements of the Bill
over the coming days (4 September 2023). Read more here.
Cases
Khouri v Commissioner for Fair Trading
[2023] NSWCATOD 135
ADMINISTRATIVE LAW - Owner Builder Permit – s 32(1A) Home
Building Act - special circumstances - dual occupancy.
Administrative Decisions Review Act 1997 (NSW); Home Building Act 1989 (NSW); Standard Instrument (Local Environmental Plans) Order 2006; Fairfield Local Environmental Plan 2013.
Kalloghlian v Mitry [2023] NSWCA
198
COSTS — Party/Party — Orders against non-parties
— Personal costs orders against lawyers — where
applicant was defendant/cross-claimant in substantive proceedings
resolved by consent — where motion seeking personal costs
order against solicitor dismissed — where case below put on
basis that defence was woefully prepared — where case on
appeal put on basis that lawyer omitted to advise applicant that
claim should never have been defended — whether s 99 of the
Civil Procedure Act 2005 (NSW) satisfied — whether correct
test applied.
Civil Procedure Act 2005 (NSW); Contracts Review Act 1980 (NSW); Home Building Act 1989 (NSW); Uniform Civil Procedure Rules 2005 (NSW).
Tanbuz v Commissioner for Fair Trading
[2023] NSWCATOD 134
ADMINISTRATIVE REVIEW – licencing – whether fit and
proper person – past convictions – failure to disclose
all past convictions - whether rehabilitated – effect of
parole.
Administrative Decisions Review Act 1997; Civil and Administrative Tribunal Act 2013; Home Building Act 1989.
Read v Gitman [2023] NSWDC 330
TORT – Defamation – Plaintiff is the chair, secretary
and treasurer of the owners committee of a small apartment block
– Three publications by the strata manager to owners, a
tenant and unit managers concerning her conduct of strata matters
– Qualified privilege at common law – Malice –
Defence of justification to one imputation – Damages.
Defamation Act 2005 (NSW), ss 10A, 34, 35, 38, 39; Home Building Act 1989 (NSW), ss 3, 4, 10, 92(1)(a); Property and Stock Agents Act 2002 (NSW), ss 3B(1), 8(1), 32(1), 86(1), 103(3), 104(1)(a); Property Stock and Business Agents Regulation 2014 (NSW); Strata Schemes Management Act 2015 (NSW), ss 30(4), 33(2), 178(1)(c), Schedule 1, ss 11, 21; Uniform Civil Procedure Rules 2005 (NSW), rr 17.6, 31.10
Singh v Zamaneh [2023] NSWCATAP
248
APPEALS – error on a question of law – denial of
procedural fairness not established - no misapplication of law.
Civil and Administrative Tribunal Act 2013 (NSW) sections 36 (3), 80 (2), Schedule 4 Clause 12 (1); Home Building Act 1989 (NSW) sections 4, 7, 18B, 92 and 94.
Zhan v Commissioner for Fair Trading
[2023] NSWCATOD 130
OCCUPATIONAL – owner builder permit - s32(1A) Home Building
Act - no special circumstances established – no financial
hardship established - dual occupancy.
Administrative Decisions Review Act 1997 (NSW) Home Building Act 1989; Standard Instrument (Local Environmental Plans) Order 2006.
Rauf v Vartanian; Vartanian v Rauf [2023]
NSWCATAP 238
APPEALS- BUILDING AND CONSTRUCTION – contract not in writing
–need to prove loss or damage arises - new decision
substituted.
Civil and Administrative Tribunal Act 2013 (NSW); sections 36 (1), (2),(4), 38 (2), (5), 80, Schedule 4 clause 12 (1).
Promina Design & Construction Pty Ltd v
The Owners – Strata Plan No 97449 [2023] NSWCATAP
252
BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) s
48K — Jurisdiction of the Civil and Administrative Tribunal
— Claim for breach of statutory warranty — Section
48K(3) does not limit the Tribunal's jurisdiction in respect of
claims for breach of statutory warranty — Civil and
Administrative Tribunal Act Schedule 4 clause 6 — Power of
the Tribunal to transfer proceedings to a court — The
Tribunal has power to transfer proceedings to a court even where
the Tribunal has no jurisdiction in respect of the claim —
Consideration of the circumstances in which it will be appropriate
to order the transfer of proceedings.
Civil and Administrative Tribunal Act 2013 (NSW) Sch 4 cl 6; Consumer Trader and Tenancy Tribunal Act 2001 (NSW); Design and Building Practitioners Act 2020 (NSW); Home Building Act 1989 (NSW) ss 18B, 18C, 18D, 18E, 48K, 48L; Home Building Act Amendment Act 2011 (NSW); Home Building Act; Amendment Act 2014 (NSW); Interpretation Act 1987 (NSW); Statute Law (Miscellaneous Provisions) Act 2012 (NSW).
Votraint No. 1019 Pty Ltd v Zauner
Construction Pty Ltd [2023] NSWSC 1055
EVIDENCE – expert evidence – expert report on alleged
defects in construction of houses – where defects have been
rectified – where expert no longer available for
cross-examination – whether Court should make advance ruling
under s 192A of the Evidence Act 1995 (NSW) – whether Court
should grant leave to plaintiff under r 31.29(5) of the Uniform
Civil Procedure Rules 2005 (NSW) to tender report.
Civil Procedure Act 2005 (NSW); Evidence Act 1995 (NSW); Home Building Act 1989 (NSW); Uniform Civil Procedure Rules 2005 (NSW).
Crystele Designer Homes Pty Ltd v Wood
[2023] NSWCATAP 242
APPEALS — Appeal on question of law – Scope of question
of law
APPEALS — From exercise of discretion — Acting on the wrong principle
APPEALS — Leave to appeal — Principles governing – Leave to appeal refused
BUILDING AND CONSTRUCTION – Residential building work – Statutory warranties under Home Building Act 1989 (NSW) – Claims by owner against builder – Whether single cause of action for breach of contract – Whether amendments to introduce new defects more than two years after completion of building work should be permitted – Money order made against the builder.
Civil and Administrative Tribunal Act 2013 (NSW), ss 60, 80, 81, Sch 4, cl 12; Civil and Administrative Tribunal Rules 2014 (NSW), r 38A; Civil Procedure Act 2005 (NSW), s 65; Home Building Act 1989 (NSW), ss 3B, 18B, 18E, 48A, 48K, 48MA, 48O.
The University of Sydney v Multiplex
Constructions Pty Ltd (No 2) [2023] NSWSC 1019
CIVIL PROCEDURE – Technology and Construction List Statement
– application to amend – proposed contentions against
sixth defendant concerning breach of common law duty of care and
misleading or deceptive conduct.
Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law.
Design and Building Practitioners Act 2020 (NSW).
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.
