Residential Focus: Part 2 - In the media, In practice and courts, Published articles, Papers & reports, Cases and Legislation - Real Estate

In the Media

Industry confidence wavers as infrastructure investment falters
Increasing uncertainty in the infrastructure pipeline is constraining business investment in skills and exacerbating the existing capacity crunch, reveals Consult Australia's latest skills survey (22 May 2023). More.

Why rising house prices could reverse in the next six months
The sharp rebound in house prices is likely to wane and even reverse unless interest rates start falling in the next six months, warns TCorp chief economist Brian Redican (4 June 2023). More.

How to cut the number of builders going bust
Housing solutions are hard, but ensuring homes already in the pipeline actually get built should stop the problem getting worse. Here are some ways to help more builders stay afloat (2 June 2023). More.

Does land banking push up housing prices
As housing prices soar once again, pushing rents higher and affordability beyond the reach of aspiring first-time buyers, it's not clear whether land-banking by developers holds back supply and pushes up prices, the National Housing Finance and Investment Corporation says (1 June 2023). More.

Construction company and director lose licence following death of worker
NSW Fair Trading has cancelled the contractor licence and permanently disqualified GN Residential Construction Pty Ltd as well as imposed a 10-year disqualification on the company's director Nicholas Kodomichalos after the death of Christopher Cassaniti when scaffolding collapsed in April 2019 (4 June 2023). More.

Welcome help at hand for first home buyers
First home buyers will enjoy significant savings after the NSW Parliament passed legislation to make stamp duty exemptions and concessions available to more people (1 June 2023). More.

In practice and courts

Decisions Reserved as at 26 May 2023
The Court of Appeal maintains a list of matters before the Court for which judgment is reserved. Read more here.

Published - articles, papers, reports

Better Planning for Stronger Growth
National Cabinet has meet in Brisbane and announced a number of reforms to support a national approach to housing supply and affordability, including offering incentives for new build-to-rent projects (28 April 2023). Read more here.

NCC classification of Specialist Disability Accommodation
The National Disability Insurance Scheme offers support to eligible people for various types of Specialist Disability Accommodation (SDA). Practitioners often seek advice about the application of National Construction Code classifications to SDA - and specifically whether classifications other than Class 3 can apply. This article clarifies that Classes 1a, 1b, 2 and 3 could each be appropriate for particular types of SDA - depending on the nature of the building (2 June 2023). Read more here.

Cases

FKP Commercial Developments Pty Limited v Zurich Australian Insurance Limited (No 2) [2023] FCA 582
INSURANCE - separate question - construction of design and construction professional indemnity insurance policy - extension of cover clause - a requirement that "the insured [be] legally liable in the provision of the professional services" is not a causal requirement - the provision by the insured of professional services must be a substantive element of the factual matrix in which the liability arises.
Home Building Act 1989 (NSW).

Noori Homes Pty Ltd v Patel [2023] NSWCATAP 149
APPEALS - appeal on question of law - scope of question of law.
APPEALS - from exercise of discretion - acting on the wrong principle.
APPEALS - from exercise of discretion - Rregard to irrelevant considerations.
APPEALS - leave to appeal - principles governing - leave to appeal refused.
BUILDING AND CONSTRUCTION - Home Building Act 1989 (NSW) - Building dispute - where the builder breached statutory warranties - money order made against the builder.
Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW); Home Building Act 1989 (NSW); Home Building Amendment Act 2014 (NSW).

Masri v Commissioner for Fair Trading [2023] NSWCATOD 73
ADMINISTRATIVE LAW - Home Building Act - administrative review of decision to refuse application for owner builder permit - special circumstances - occupancy.
CIVIL PROCEDURE - summary disposal - dismissal of proceedings.
Administrative Disputes Review Act 1997; Civil and Administrative Tribunal Act 2013; Environmental Planning and Assessment Act 1979; Home Building Act 1989.

Owners SP 92450 v JKN Para 1 Pty Limited [2023] NSWCA 114
BUILDING AND CONSTRUCTION - contract - implied terms - statutory warranties - whether building complied with Building Code of Australia (BCA) - where performance requirements of BCA specified that external walls must be "non-combustible" - whether external cladding met performance requirements for fire resistance - Where cladding did not comply with "deemed-to-satisfy" provisions - Where no "alternative solution" prepared prior to issue of construction certificate - Home Building Act 1989 (NSW), s 18(1)(c) - where breach of s 18(1)(c) conceded.
BUILDING AND CONSTRUCTION - contract - damages - claim for reinstatement damages - evidentiary onus of proving reinstatement would be unreasonable.
Building Products (Safety) Act 2017 (NSW); Environmental Planning and Assessment Act 1979 (NSW); Environmental Planning and Assessment Regulation 2000 (NSW); Home Building Act 1989 (NSW); Supreme Court Act 1970 (NSW); Uniform Civil Procedure Rules 2005 (NSW).

Trajkovski v Harrison [2023] NSWCATAP 143
LAND LAW - Strata Schemes - apprehended bias - hearing rule - alleged excessive interference in the proceedings - Section 237(5) of the Strata Schemes Management Act 2015 (NSW).
Civil and Administrative Tribunal Act 2013 (NSW); Strata Schemes Management Act 2015 (NSW).

The Owners - Strata Plan No. 74442 v Harrison [2023] NSWCATAP 144
LAND LAW - Strata Schemes - apprehended bias - hearing rule - alleged excessive interference in the proceedings - Section 237(5) of the Strata Schemes Management Act 2015.
Civil and Administrative Tribunal Act 2013; Civil and Administrative Tribunal Rules 2014; Strata Schemes Management Act 2015.

LCM Operations Pty Ltd v Rabah Enterprises Pty Ltd [2023] NSWSC 590
CONTRACTS - brothers undertake property development through two companies - defendant company owns land and provides funds - related company is project manager - oral agreement - project manager charges $14.8M fee for construction including cost of build - fee recorded in "financial records" of both companies - defendant claims tax deduction but does not pay fee - project manager does not remit GST on fee - project manager wound up by ATO - brothers' explanation of arrangement logically uninviting - post-contractual conduct - claim in debt successful.
SET-OFF - whether right to set-off loans made by defendant - contractual right of set-off - principles at [182] -[184] - whether right of set-off inferred from conduct - oral agreement - post-contractual conduct - no contractual right of set-off.
RESTITUTION - Quantum meruit - principles at [208]-[210] - defendant freely accepted benefit of project manager's services - reasonable person would have realised project manager would expect to be paid - unjust for defendant to retain benefit without making restitution.
A New Tax System (Goods and Services Tax) Act 1999 (Cth); Corporations Act 2001 (Cth); Income Tax Assessment Act 1997 (Cth).

Walker Corporation Pty Ltd v The Owners - Strata Plan No 61618 [2023] NSWCA 125
LAND LAW - strata title - strata managing agent - where three owner corporations of Finger Wharf development at Woolloomooloo passed resolutions terminating appointment of strata managing agent and appointing new one - where strata managing agent is different to managing agent appointed for Wharf as a whole by building management committee as a result - where clause of strata management statement ("SMS") required owners' corporations to "appoint and retain" the same strata managing agent as the building management committee appoints as strata manager for Wharf as a whole - whether clause of SMS inconsistent with Strata Schemes Management Act 2015 (NSW), not authorised by Strata Schemes Development Act 2015 (NSW) or uncertain.

Masri v Commissioner for Fair Trading [2023] NSWCATOD 73
ADMINISTRATIVE LAW - Home Building Act - administrative review of decision to refuse application for owner builder permit - special circumstances - occupancy.
}CIVIL PROCEDURE - summary disposal - dismissal of proceedings.
Administrative Disputes Review Act 1997; Civil and Administrative Tribunal Act 2013; Environmental Planning and Assessment Act 1979; Home Building Act 1989.

Timilty Constructions Pty Ltd v Culina (No 2) [2023] NSWCATAP 148
COSTS - APPEAL - NCAT - whether amount in dispute on appeal was more than $30,000 - usual order under r 38 - whether disentitling conduct - apportionment of issues - appeal allowed in part - mixed success on appeal - exercise of discretion that each party pay their own costs.
Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW); Home Building Act 1989 (NSW); Interpretation Act 1987 (NSW); Uniform Civil Procedure Rules 2005 (NSW).

McLachlan v Edwards Landscapes Pty Ltd [2023] NSWSC 532
BUILDING AND CONSTRUCTION - jurisdiction of NSW Civil and Administrative Tribunal under the Home Building Act 1989 (NSW) - where claim substantively concerns breach of statutory warranty.
APPEALS - leave to appeal - whether leave required - interlocutory decisions - where matter transferred from Local Court to NSW Civil and Administrative Tribunal.
Design and Building Practitioners Act 2020 (NSW); Home Building Act 1989 (NSW); Local Court Act 2007 (NSW).

The Owners-Strata Plan No. 86807 v Crown Group Constructions Pty Ltd (No 2) [2023] NSWSC 520
CIVIL PROCEDURE - originating process - amendment - claim under Design and Building Practitioners Act 2020 (NSW) - where no evidence of non-compliance with the Building Code of Australia - discretionary matters - Where delay in bringing application - where no evidence of irremediable prejudice - leave granted conditional on evidence that building work did not comply with Building Code of Australia.
CIVIL PROCEDURE - originating process - amendment - claim under Design and Building Practitioners Act 2020 (NSW) - whether claim apportionable - determination as to the applicability of Pt 4 of the Civil Liability Act 2002 (NSW) unnecessary to grant of leave to amend.
Building Code of Australia; Civil Liability Act 2002 (NSW); Design and Building Practitioners Act (2020) (NSW); Environmental Planning and Assessment Act 1979 (NSW); Home Building Act 1989 (NSW); Law Reform (Miscellaneous Provisions) Act 1946 (NSW); Limitation Act 1969 (NSW); Limitation Act 1969 (NSW).

Goodman v Commissioner for Fair Trading [2023] NSWCATOD 66
ADMINISTRATIVE LAW - Home Building Act - administrative review of decision to refuse application for renewal of licence - fit and proper person requirement - whether applicant took all reasonable steps to avoid external administration - whether applicant is capable of doing the work for which the certificate is required.
Administrative Disputes Review Act 1997; Home Building Act 1989.

Legislation

NSW Legislation

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.

Australia: Residential Focus: Part 2 - In the media, In practice and courts, Published articles, Papers & reports, Cases and Legislation

In the Media

In practice and courts

Published - articles, papers, reports

Cases

Legislation

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