Artboard 1Icon/UI/CalendarIcons/Ionic/Social/social-pinterestIcon/UI/Video-outline

Residential Focus – 29 August 2018

29 August 2018

11 min read

#Property, Planning & Development

Published by:

Eleanor Grounds, Lauren Stables

Residential Focus – 29 August 2018

The Strata Schemes Management Amendment (Building Defects Scheme) Bill 2018

The Strata Schemes Management Amendment (Building Defects Scheme) Bill 2018 (the Bill) was introduced into Parliament on 15 August 2018. The Bill would amend the strata building defect bond and inspection scheme (the Scheme), which commenced on 1 January 2018. 

The Scheme, which is housed in Part 11 of the Strata Schemes Management Act 2015 (the Act), introduced a process to streamline the identification and rectification of building defects in high rise strata buildings. In particular, the Scheme requires developers to pay a building bond equivalent to 2 per cent of the contract price for the building work to the Secretary of the Department of Finance in order to secure funding for the rectification of any building defects, which are to be investigated and the subject of reports at 15-18 and 21-24 months after completion of the work.

In a previous edition we discussed the public consultation draft of the Bill (Draft Bill), which can be found here

In summary, the Draft Bill provided for the following:

  • a building bond would need to be lodged before the developer applies for the occupation certificate, rather than at any time before an occupation certificate is issued, as is currently required
  • authorised officers of Fair Trading would be provided with additional investigative powers to verify the building contract price on which the 2 per cent building bond is based
  • developers would be able to apply to the NSW Civil and Administrative Tribunal to have the contract price determined in prescribed circumstances
  • the Commissioner of Fair Trading (the Secretary) would have the power to enforce a debt recovery process to recover unpaid or underpaid building bonds from the developer
  • the maximum penalty for a developer who fails to lodge a building bond would be increased to range from $22,000 to $1.1 million, with a further $22,000 for each day the offence continues. 

The Bill as introduced to Parliament includes the following further amendments to the Scheme:

  • a building bond would need to be in terms that are acceptable to the Secretary before the Secretary is required to accept it for lodgement
  • an amount secured by a building bond would need to be claimed or realised either two years after the date of completion of the building work, or 60 days after the final inspection report on the building work is given to the Secretary (rather than 90 days, as is currently required under the Scheme)
  • to ensure bond money is held for the shortest time possible, the Secretary would be authorised to release a building bond in the following circumstances:
    • if an interim report on the building work does not identify any defective building work
    • on the application of the developer, if the owners corporation agreed and if part of the amount secured by the building bond has been claimed or realised by the Secretary. 

The Bill is currently before the Legislative Assembly and awaiting the second reading debate. Once the Bill passes and Regulations are prepared and in place, the amendments to Part 11 will commence. 

Editorial: Christine Jones, Eleanor Grounds & Lauren Stables

In the media

Policymakers push for cladding standard
Ministers have asked Standards Australia to develop an Australian Standard for permanent labelling of aluminium composite panels. A Building Ministers’ Forum (BMF) meeting, also attended by industry representatives – has agreed the issue is “critical” and the labelling will be mandated through the National Construction Code (20 August 2018).  More...

Police issue warning after truckloads of waste containing asbestos goes missing
A NSW man faces criminal charges after about 17,000 tonnes of asbestos-filled material disappears from a major Sydney development site (23 August 2018).  More... 

In practice and courts

ABCB: Save the date: Accessible Housing National Consultation Forums 2018
National consultation forums relating to accessible housing are coming. The forums will focus on the ABCB’s Accessible Housing Options Paper, which will be released in advance of the consultation forums (22 August 2018).  More... 

NCC 2019 energy efficiency provisions
The current draft of the NCC 2019 energy efficiency provisions is broadly consistent with the Public Comment Draft. The current draft of the NCC 2019 energy efficiency provisions remains subject to the ABCB’s committee-in-confidence processes until it is provided to the Board for approval later this year (14 August 2018).  More... 

ABCC Reminder: Security of payments – nation-wide campaign commences in August
The ABCC has begun a nation-wide campaign to educate contractors on their responsibilities to pay their subcontractors on time under the Code for the Tendering and Performance of Building Work 2016. It’s important that contractors meet their obligations under the Code, otherwise they risk possible sanctions from tendering for Commonwealth funded projects.  More...

prefabAUS Conference 2018
11th - 12th September, 2018 Brisbane Convention & Exhibition Centre.  More...

Current Consultations
Non-conforming building products
Status: Submissions Closed Date Referred: 11 October 2016 Next Hearing: 02 August 2018 Reporting Date: 16 August 2018

New South Wales

BPB: New certification provisions of the EP&A Act postponed until 2019
Commencement of Part 6 of the Environmental Planning and Assessment (EP&A) Act 1979, which covers building and subdivision certification, has been postponed until 1 September 2019 (17 August 2018).  More...

BPB: Read our Cert Alert newsletter issue 4
'Cert Alert' is your regular update on work by the Board, legislative change, events, training and consultation opportunities (16 August 2018).  More...

BPB: New A1, A2, A3 and B1 certification responsibilities under the Infrastructure SEPP
The Building Professionals Regulation 2007 has been amended to allow A1, A2, A3 and B1 certifiers to certify water and sewerage lead-in infrastructure as complying development under the Infrastructure SEPP (14 August 2018).  More...

Proposed ban on the use of certain types of aluminium composite panels
Under the Building Products (Safety) Act 2017, the intended ban will prohibit the use of aluminium composite panels with a core comprised of more than 30 per cent polyethylene by mass in any external cladding in certain multi-storey buildings. There are exceptions for products that can pass stringent tests that meet certain Australian Standards. The ban is intended to come into force on 15 August 2018 (10 August 2018).  More...

BPB: Building and Development Certifiers Bill 2018
The Building and Development Certifiers Bill 2018 seeks to strengthen the certification system in NSW. Comments are invited on the proposed Building and Development Certifiers Bill 2018 by 4 September 2018.  More...

Cases

Mawbey v Commissioner for Fair Trading [2018] NSWCATOD 141
(1) The decision that the applicant is guilty of improper conduct is affirmed.
(2) The decision to take disciplinary action against the applicant is varied so that the applicant is disqualified from holding any contractor licence or authority under the Home Building Act 1989 until 1 January 2019.
ADMINISTRATIVE REVIEW – Home Building – disciplinary action – whether electrician effected reverse polarity – whether guilty of improper conduct – whether fit and proper person – penalty to be imposed.
Electricity (Consumer Safety) Act 2004; Home Building Act 1989; Home Building Regulation 2004.

Magerovski v Commissioner for Fair Trading, Department of Finance, Services and Innovation; Service Today NSW v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2018] NSWCATAD 192
(1) The Respondent’s Reviewable Decisions of 19 July 2017 are set aside.
ADMINISTRATIVE REVIEW – Home Building – Disciplinary action – improper conduct – knowledge - fit and proper person – grounds for refusal - penalty.
Administrative Decisions Review Act 1997; Civil and Administrative Tribunal Act 2013; Crimes Act 1900.
Home Building Act 1989
; Licensing and Registration (Uniform Procedures) Act 2002.

Jones v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2018] NSWCATOD 142
ADMINISTRATIVE LAW – Administrative Review - Home Building Act 1989 – application for contractor licence endorsed to be equivalent to a supervisor certificate – application of Instrument issued by the respondent Commissioner – whether the Tribunal is satisfied the applicant has the necessary breadth of experience – need for third party verification of experience.  Decision affirmed.
Administrative Decisions Review Act 1997 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Home Building Act 1989 (NSW); Home Building Regulation 2014 (NSW).

Owners of Strata Plan 80458 v TQM Design & Construct Pty Ltd [2018] NSWSC 1304
BUILDING AND CONSTRUCTION – ss 18B, 18D of the Home Building Act 1989 (NSW) – statutory warranties as to quality of home building work – where plasterboarding, air conditioning and acoustic installation work in apartments is defective – whether the defendant builder did defective building work – the defendant suspended building work under the Building and Construction Industry (Security of Payment) Act 1999 (NSW) before being excluded from the site and not being allowed to complete the work – whether the defects are ‘temporary disconformities’ and therefore not in breach of the implied warranties contained in s 18B – loss or damage occasioned by defective building work is to be assessed by reference to established contractual principles of breach and causation – whether the plaintiffs’ loss was caused by the defendant’s building work.
STATUTORY CONSTRUCTION – s 18D(1) – meaning of the phrase ‘the same rights as the person’s predecessor in title in respect of the statutory warranty’ – whether s 18D gives a successor in title no rights where loss was not suffered by the predecessor in title caused by breaches of s 18B.
DAMAGES – rule against double compensation – the plaintiffs entered into a Deed of Settlement with the developer’s home building insurer and received payment in respect of defective work to the apartments – concurrent claim – claims made against the defendant were made in the same terms as those against the developer’s insurer – whether plaintiffs have already been compensated for the loss which they allege was caused by the defendant.
HELD - plaintiffs failed to establish that defective work the subject of their claim was done by the defendant and the extent of the defects attributable to the defendant – defective work was not a temporary disconformity – the developer suffered no loss because it broke the chain of causation between any defective work done by the defendant and damage suffered by the developer, by taking the work out of the hands of the defendant – the right of the plaintiffs to sue the defendant for breach of the implied warranties is unaffected by the position between the developer and the defendant under their building contract. Dismissed.
Home Building Act 1989 (NSW); Building and Construction Industry (Security of Payment) Act 1999 (NSW).

Forrest v Jordan [2018] FamCA 625
FAMILY LAW – PROPERTY – Where the husband seeks an order that the wife be solely liable for all future claims under the Home Building Act 1989 (NSW) – Where renovation of the property was a joint undertaking by the parties – Where the Court considers it to be a shared responsibility – Where an order is made for the parties to share the costs of any future claim. Family Law Act 1975 (Cth) ss 75, 79; Home Building Act 1989 (NSW).

Anderson v J W Lanfranchi Pty Ltd [2018] NSWCATAP 195
APPEAL – whether error of law – failure to provide proper reasons.
HOME BUILDING CLAIM – whether Schedule of Works formed part of the contract.

Golden International Trading Pty Ltd v Independent Pricing and Regulatory Tribunal [2018] NSWCATAD 189
ADMINISTRATIVE LAW – merits review – failure to conduct audit as required – cancellation of accreditation – appropriate sanction.

Gallagher v Start Construction Pty Limited [2017] NSWDC 440
ASSESSMENT – building contract – defects – omissions – assessment of damages – only one co-owner a party – no electrical plan – builder’s expertise – costs of individual defects not specified. 

Legislation

New South Wales

Consultation or Exposure Bills – 10 August 2018
Building and Development Certifiers Bill 2018

Fair Trading Legislation Amendment (Consumer Guarantee Directions) Act 2018 (NSW) 

Home building compensation (contribution) AIP guidelines (2018-445) (17 August 2018)

Strata Schemes Management Amendment (Building Defects Scheme) Bill 2018

Contacts:
Christine Jones, Partner - Construction & Infrastructure (Dispute Resolution) 
T: +61 2 8083 0477 
E: christine.jones@holdingredlich.com

Divya Chaddha, Associate 
T: +61 2 8083 0457
E: Divya.Chaddha@holdingredlich.com

Disclaimer

The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Eleanor Grounds, Lauren Stables

Share this