In the media
CoreLogic 'Cordell' Construction Monthly Report
– October, 2019
Construction activity data collated by Cordell (a division
of CoreLogic) showed that the total number and value of new
projects announced (but not yet commenced), for October increased
by 5 per cent with 1,918 new projects added to the pipeline (29
November 2019).
More...
Delivering opportunity and growth for Northern
Australia
More than $5 billion of Commonwealth Government funding is
creating more jobs, providing better infrastructure and unleashing
new enterprise in Northern Australia, with the Liberal National
Government investing record amounts in infrastructure, water and
job-creating projects across three states (27 November 2019).
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A lot of noise, so what was achieved?
When it comes to efforts to introduce statutory
registration for engineers, there has been a lot of activity in
2019, especially in NSW and Victoria (27 November 2019).
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Engineers sign up to mitigate impact on climate
change
Thousands of professional engineers, engineering students
and hundreds of organisations are expected to sign a declaration
committing to steering the profession towards reducing carbon
emissions in Australia (27 November 2019).
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HIA welcomes Government commitment to reducing red
tape
HIA welcomes the Government's announcement that as
part of its move to bring forward billions of dollars in
infrastructure, it will also be cutting red tape that hinders the
progress of projects that are vital to Australian housing (22
November 2019).
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$3.8 billion infrastructure splash is Government's
response to 'uncertain' economic conditions
Prime Minister Scott Morrison is ramping up infrastructure
investment in a bid to boost Australia's flagging economy (20
November 2019).
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New South Wales
Major planning reform to drive jobs and investment in
New South Wales
Public Spaces Minister Rob Stokes said a series of reforms
would be introduced to the planning system over the coming months
to slash assessment timeframes, reduce red tape and fast-track
projects in high growth areas (27 November 2019).
More...
Fair Trading NSW: Proposed ban on the use of certain
types of aluminium composite panels
Notice of her intention to impose building product use ban
for aluminium composite panels with a core comprised of greater
than 30% polyethylene by mass in any external cladding, external
wall, external insulation, façade or rendered finish in
certain multi storey buildings, subject to specific exceptions (28
November 2019).
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Emergency water infrastructure for regional New South
Wales
The NSW Government will provide funding for 30 urgent
water infrastructure projects in drought-affected communities (26
November 2019).
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Road and rail investment to boost New South Wales
The New South Wales economy will be boosted by a $570
million infrastructure package to bust congestion and make regional
roads safer (21 November 2019).
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Assistance for bushfire disaster cleanup
Premier Gladys Berejiklian, Deputy Premier and Minister
for Regional NSW John Barilaro and Minister for Police and
Emergency Services David Elliott have committed up to $25 million
to facilitate the cleanup of homes and properties damaged and
destroyed by the recent fires (19 November 2019).
More...
Queensland
Paradise Dam inquiry called as reports released
An independent inquiry will be held into Paradise Dam as
technical reports detail structural and stability issues with the
dam (29 November 2019).
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Ground-breaking Inland Rail agreement lays the track for
Queensland's future
The most significant freight infrastructure project in the
nation's history has taken a major step forward with the
Australian and Queensland Governments signing a ground-breaking
Bilateral Agreement to deliver Inland Rail (29 November 2019).
More...
$1 billion M1 Varsity Lakes to Tugun upgrade to shine
bright like a diamond
Gold Coasters have been given their first look at plans
for the city's $1 billion M1 Varsity Lakes to Tugun upgrade set
to get underway next year (28 November 2019).
More...
Palaszczuk Government delivers confidence for Queensland
tradies and business
Queensland tradies are set to secure the strongest payment
protections in the nation's history as the Palaszczuk
Government announces its response to two independent reports into
its building industry fairness reforms (28 November 2019).
More...
Palaszczuk Government explores new pipeline for parched
communities
Ms Palaszczuk said a potential new pipeline to deliver
Wivenhoe Dam water to Warwick would be among options considered as
part of a $1 million feasibility study into contingency water
supply options, to be completed in consultation with local councils
(26 November 2019).
More...
$1.9 billion road and rail boost for Queensland
economy
A $1.9 billion road and rail package will boost the
Queensland economy and drive more jobs, while getting people home
sooner and safer (20 November 2019).
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Making Gold Coast light rail stage 3A a reality
The Australian Government has committed a further $157
million to make Stage 3A of the Gold Coast Light Rail a reality (20
November 2019).
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Additional funding for congestion-busting M1 Exit
Upgrades
The Federal Liberal and Nationals Government has put
commuter safety and reducing congestion at the forefront of its
infrastructure agenda by announcing it will contribute an
additional $46.3 million to upgrade the M1 Pacific Motorway (20
November 2019).
More...
Huge Federal funding deal set to fast track major
infrastructure projects in Queensland
A raft of major infrastructure projects across Queensland
is set to go ahead, after a surprise deal was reached between the
state and federal governments (20 November 2019).
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Victoria
HIA: Workplace manslaughter bill passed
The Victorian Government has passed the Workplace Safety
Legislation Amendment (Workplace Manslaughter and Other Matters)
Bill 2019. The Bill inserts a new workplace manslaughter offence
into the Occupational Health and Safety Act 2004 (27 November
2019).
More...
$1 billion road boost for Victorian economy
A federal and state infrastructure package will boost the
Victorian economy with more than $1 billion in project funding
aimed at busting congestion and increasing road safety (22 November
2019).
More...
Published
ABCC Industry Update November-December 2019
edition
This issue includes; ABCC findings from zero drugs and
alcohol on building sites campaign; Securing payments for
subcontractors and Wages and entitlements - proper record keeping
(26 November 2019)
Industry Update November-December 2019 edition
BDAV: Building defects affecting residents
A recent study lead by Deakin University and funded by the
PICA Group sought to identify types of building defects and how
they impacted on the building and its occupants. Of the 3227
defects analysed, defects relating to building fabric and cladding
(40 per cent) were the most prevalent, followed by fire protection
(13 per cent), waterproofing (11.5 per cent), roof and rainwater
disposal (8.5 per cent), and then structural issues (7 per cent)
(20 November 2019).
More...
Practice and courts
CASA: Funding for regional airports
Regional airports can start the process of seeking new
funds for safety upgrades, with guidelines are now available to
give airport owners and operators more information on their
eligibility for the $100 million program ( including safer runways,
taxiways, fencing). Round one of the program closed on 12 December
2019. Find out more about the
airport funding.
New South Wales
NSW Fair Trading: Intended ban notice: aluminium
composite panels
Any person or corporation who does not comply with the
requirements of the ban can be subject to fines. A corporation
found to be using a banned building product can be fined up to $1.1
million and individuals can be fined up to $220,000. If you have
any enquiries about the proposed building product use ban please
contact NSW Fair Trading online (28 November 2019).
More...
Queensland
MBA Qld: Additional annual reporting for Category 4-7
contractors
The QBCC recently communicated with all Category 4 –
7 licence holders requesting an additional annual financial report.
The additional report you submit must be based on FY18/19 financial
data and must be submitted by 31 December 2019 (29 November 2019).
More...
Victoria
Planning – Approvals – 26 November
2019
VC158 changes the VPP and all planning schemes in Victoria by
introducing a new particular provision to exempt combustible
cladding rectification on buildings subject to an emergency order,
building notice or building order under Part 8 of the Building Act
1993.
VBA: Carpenters selected for first stage of trades
registration
Carpenters will be the first group of trades registered
under Victoria's recently developed trades registration
framework. A paper exploring possible options will be released for
public consultation in the coming weeks.
Provisional registration and licensing for carpenters is expected
to commence in mid-2021. For more information and answers to
frequently asked questions, refer to the
Engage Victoria website (22 November 2019).
Cases
New South Wales
Hanson Construction Materials Pty Ltd v Brolton Group
Pty Limited [2019] NSWSC
1641
BUILDING AND CONSTRUCTION – adjudication
determination under Building and Construction Industry Security of
Payment Act 1999 (NSW) – whether determination void –
jurisdictional error – whether denial of natural justice
– whether failure by adjudicator to provide parties with
opportunity to make submissions with respect to choice of reference
date relevant to payment claim – whether open to claimant to
support determination with reference to different reference date
than that relied on by adjudicator – whether open to
adjudicator to justify determination on basis that it was a
determination of a payment claim by reference to other reference
date BUILDING AND CONSTRUCTION – adjudication determination
under Building and Construction Industry Security of Payment Act
1999 (NSW) –whether determination void – whether
payment claim referrable to work completed after relevant reference
date – construction of sections 8 and 13 of the legislation
– Southern Han Breakfast Point Pty Ltd (In Liq) v Lewence
Construction Pty Ltd and other authorities considered –
whether payment claim may only relate to work done before reference
date in respect of payment claim was served BUILDING AND
CONSTRUCTION – adjudication determination under Building and
Construction Industry Security of Payment Act 1999 (NSW) –
whether to grant conditional relief – power of court to sever
part of determination which is within jurisdiction from that part
which is not – recent authority
Visual Building Construction Pty Ltd v Armitstead (No
2) [2019] NSWCA
280
Appeal dismissed with costs
CONTRACTS – termination – whether building contract
validly terminated – whether in the circumstances, 10
business days notice giving opportunity to remedy default needed to
be given prior to termination – alternative bases for
termination – Shepherd v Felt & Textiles of Australia Ltd
the Statutory Warranty Provisions of the Home Building Act in that
the work was not done in accordance with done in accordance with
and or complied with the Home Building Act or other Law
Environmental Planning and Assessment Act 1979 (NSW) ss 109F(1A),
121B, 149E(1)(a); Local Government Act 1993 (NSW)
Omega Plumbing Pty Ltd v Harbour Radio Pty Ltd t/as 2GB
and 2GB 873 [2019] NSWSC
1576
The parties are to bring in short minutes to reflect these
reasons and to define the terms of the interlocutory
injunction
TORTS – injurious falsehood – application for
interlocutory injunction to prevent further publications pending
final hearing where the first defendant is a media company and the
second defendant is an employee and radio broadcaster for the first
defendant – where the second defendant made a number of
representations about the plaintiff's business on his radio
show – representations were also made in articles published
on the first defendant's website – whether there is a
prima facie case that the representations were made maliciously
– where the defendants made allegations about the plaintiff
with reckless indifference to the truth of the allegations or
without any belief in the truth of the allegations – absence
of evidence to support a number of statements made by the
defendants – prima facie case made out – balance of
convenience strongly favours the plaintiff
Queensland
Samios
Plumbing Pty Ltd v John R Keith (QLD) Pty Ltd
[2019] QDC 237
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES –
FORMATION OF CONTRACTUAL RELATIONS – OFFER – GENERALLY
– where a credit application was sent to the plaintiff by the
defendant, enclosing the defendant's terms and conditions
– whether the credit application constituted an offer
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – FORMATION
OF CONTRACTUAL RELATIONS – ACCEPTANCE – GENERALLY
– LEGAL PRINCIPLES – where plaintiff approved the
defendant's credit application – whether approval letter
constituted acceptance of an offer and acceptance of the
defendant's terms and conditions
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – FORMATION
OF CONTRACTUAL RELATIONS – ACCEPTANCE ADDING TO OR VARYING
TERMS OF OFFER - COUNTER-OFFER – where the plaintiff sent
letter to the defendant approving the credit application –
where the letter reiterated some of the plaintiff's payment
terms – whether the letter amounted to counter-offer rather
than acceptance
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES –
CONSIDERATION – FAILURE OF CONSIDERATION – whether the
credit application provided for consideration from either party to
the other
Wagner
& Ors v Nine Network Australia & Ors
[2019] QSC 284
DEFAMATION – DAMAGES – GENERAL DAMAGES –
ASSESSMENT – IN GENERAL – where a jury found that a 60
Minutes program imputed that the plaintiffs caused a man-made
disaster and that the disaster was the result of their failing to
take steps that they should have to prevent a quarry wall on
property they owned from collapsing, causing a devastating wall of
water to destroy Grantham and kill twelve people – where the
jury found that the sixth defendant, an experienced journalist who
featured in the program, conveyed a similar imputation by his words
– where the program also was found to impute that the
plaintiffs sought to conceal the truth about the role their quarry
played in the flood and that the plaintiffs disgracefully refused
to answer to the public for their failure to take steps to prevent
the quarry wall they owned from collapsing and causing the flood
– what award of damages should be given to each plaintiff
against the Nine Network defendants and against Mr Cater
DEFAMATION – DAMAGES – GENERAL DAMAGES - ASSESSMENT
– SPECIAL MATTERS – AGGRAVATION – CONDUCT OF THE
PARTIES – where the plaintiffs claim aggravated compensatory
damages on the basis that the defendants engaged in conduct that
was improper, unjustifiable or lacking in bona fides – where
the defendants made inadequate attempts to ascertain the truth
– where the defendants possessed information which
contradicted allegations in the program but did not report it
– where the defendants made belated attempts to seek a
response from the plaintiffs and did not include in the program any
part of a statement issued by the plaintiffs – where, despite
the findings of a Commission of Inquiry which in October 2015
discredited the allegations in the program, the defendants pleaded
a defence of justification for seven months, withdrawing it in
November 2018 – where the defendants have failed to broadcast
a correction, retraction or apology in the years following the
program – whether the defendants engaged in conduct which was
improper, unjustifiable or lacking in bona fides – whether
there should be awards of aggravated compensatory damages against
the Nine Network defendants and against Mr Cater
DEFAMATION – DAMAGES – GENERAL DAMAGES –
ASSESSMENT – SPECIAL MATTERS – MITIGATION – where
in September 2018 the plaintiffs received large awards of damages
for numerous defamations, including substantially similar
imputations, broadcast on a radio show – whether the previous
awards and any public vindication achieved by reporting that
decision should mitigate damages, and the extent of any such
mitigation
Pivovarova v Michelsen [2019] QCA
256
ADMINISTRATIVE LAW – STATUTORY APPEALS FROM
ADMINISTRATIVE AUTHORITIES TO COURTS – where applicant seeks
leave to appeal a decision of the appeal tribunal of the Queensland
Civil and Administrative Tribunal – where s 150(3)(a) of the
Queensland Civil and Administrative Tribunal Act 2009 (Qld)
provides that an appeal may be made "only on a question of
law" – whether the grounds of the proposed appeal raised
by the applicant are limited to questions of law – whether
the Court of Appeal lacks jurisdiction to hear and determine the
proposed appeal
Administrative Appeals Tribunal Act 1975 Cth s 44; Domestic
Building Contracts Act 2000 Qld s 67
Liquor Act 1992 Qld s 35; Queensland Civil and Administrative
Tribunal Act 2009 Qld s 142, s 149, s 150, s 153
Uniform Civil Procedure Rules 1999 Qld r 765(1)
Sanrus Pty Ltd & Ors v Monto Coal 2 Pty Ltd & Ors
(No 9) [2019] QSC
278
PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS –
OTHER MATTERS – where the plaintiffs applied for directions
so as to extend the time until the delivery of written submissions
– where the defendants opposed the application – where
the court was required to balance the prejudice which would be
visited upon the parties and the administration of justice –
whether leave should be granted
Cherwell Creek Coal Pty Ltd v BHP Queensland Coal
Investments Pty Ltd & Ors (No 21) [2019]
QLC 41
CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –
COURT SUPERVISION – AMENDMENT – ORIGINATING PROCESS,
PLEADINGS ETC – where the respondent sought to amend its
defence – whether leave was required – where the Court
found leave was not required – where the Court held that, if
leave was required, it would not have adjourned the application and
would have granted leave
CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PROCEDURAL
ASPECTS OF EVIDENCE – EXPERT REPORTS AND EXPERT EVIDENCE
– OTHER MATTERS – where the respondent gave additional
instructions to their expert – where leave was required to do
so – where the Court made orders to allow the applicant to
provide further instructions to its expert on the same matter
Mineral Resources Act 1989 Qld s 334ZJ(4), s 334ZJ(5), s
334ZJ(8)(k); Uniform Civil Procedure Rules 1999 Qld r 378
Victoria
Nantong Construction (Australia) Pty Ltd (ACN 154 528 751)
v M & S Sambor Pty Ltd (ACN 004 599 151)
[2019] VSC 774
INJUNCTION - Urgent interlocutory injunction –
Serious question to be tried – Balance of convenience –
Damages as an adequate remedy.
LICENSE - License for agreement to use land – Revocation of
license to access land –Circumstances in which common law
regards a licence as irrevocable.
ESTOPPEL - Equitable estoppel – Circumstances when a licence
becomes irrevocable – Considered Cowell v Rosehill Racecourse
Co Ltd (1937) 56 CLR 605.
Key Infrastructure Australia Pty Ltd v Bensons Property
Group Pty Ltd (No 2) [2019] VSC
763
COSTS – Plaintiff awarded nominal damages of $100
for breach of contract – Counterclaim dismissed – Offer
of compromise in 'walk-away' terms by plaintiff –
Rule 26.08(2) of the Supreme Court (General Civil Procedure Rules)
2005 (Vic) – Whether good reason to depart from the usual
order set out in the rule – Plaintiff's entitlement to
costs under the rule reduced.
Top Cat Installations Pty Ltd v Southstar Homes Pty
Ltd [2019] VCC
1878
CONTRACTS - Building contract – payment claim
– whether payment claim included work under more than one
construction contract – whether payment claim sufficiently
identified the construction work to which it related –
severance of part of payment claim – whether variations
claimed were excluded amounts
Building and Construction Industry Security of Payment Act 2002
(Vic) ss4, 10A, 14(2) and 16
Argyrou v Victorian Building Authority
[2019] VSC 721
INJUNCTION – Application for interlocutory
injunction to restrain defendant conducting disciplinary
proceedings – Serious issue to be tried as to whether
defendant has jurisdiction to undertake disciplinary proceeding
– Application brought at early stage of disciplinary
proceeding – Plaintiff entitled to exercise rights of
internal review and appeal to Victorian Civil and Administrative
Tribunal if dissatisfied with outcome of disciplinary proceeding
– Application for injunction refused – Building
Industry Act 1993 (Vic) ss 179, 182B, 182E, 185, 186, 187 sch 8 cls
3, 4 – Interpretation of Legislation Act 1984 (Vic) s 14(2)
– Victorian Civil and Administrative Tribunal Act 1998 ss 51,
148, 187 – Supreme Court (General Civil Procedure) Rules 2015
o 56.
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.
