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Inside track: Construction & Infrastructure

10 February 2021

#Construction, Infrastructure & Projects

Inside track: Construction & Infrastructure

In the media

Infrastructure-led recovery underway in construction, but challenges remain
Construction activity has returned to growth, with increased optimism for workloads to grow in 2021. RICS’ global construction activity index has climbed to +3, up from –24 in Q2. Infrastructure has led recovery, with growth particularly in ICT and energy sectors  (04 February 2021).  More...

Resources sector driving jobs growth
Minister for Resources, Water and Northern Australia Keith Pitt says the latest jobs figures have again confirmed the importance of the mining industry to Australia with a big increase in the number of Australians employed in the sector (29 January 2021).  More...

HomeBuilder leads to spike in material and labour costs, stinging home buyers
HomeBuilder has provided a shot in the arm to the housing sector, with households taking on record levels of debt to fuel the nation’s economic recovery. But increased demand has already pushed up the price of materials and labour, squeezing the budgets of home buyers and renovators (28 January 2021).  More...

Why blockchain just might be the answer to better construction
Blockchain could unlock desperately needed modernisation in Australia’s construction industry, according to Professor Srinath Perera from Western Sydney University’s Centre for Smart Modern Construction (28 January 2021).  More...

Victoria

Victoria slips down HIA's Housing Scorecard sharply
A cooling of Victoria’s housing market conditions has been on the horizon for a while now and the COVID shock appears to have accelerated this trend, said Executive Director Fiona Nield (03 February 2021).  More...

Victoria cladding ban takes effect
Victoria’s ban on the use of high-risk cladding products in new multi-storey buildings takes effect, with the move expected to produce a net economic benefit of $1 million annually from reduced insurance costs (01 February 2021).  More...

New South Wales

World’s largest battery to be built in Hunter Valley
The world’s largest grid-scale solar battery, with a potential capacity of 1200 megawatts – about eight times the size of the South Australian big battery – is to be built in the NSW Hunter Valley at Kurri Kurri, 35 kilometres north-west of Newcastle (05 February 2021).  More...

Queensland

Major works on display for new, year-round Exhibition train station
Part of the Palaszczuk Government’s $50 billion infrastructure pipeline over the next four years, construction has started on the new Exhibition station at the RNA Showgrounds, meaning year-round trains for Brisbane’s fastest-growing entertainment, business and health precinct are a step closer (04 February 2021).  More...

Gold Coast’s Seaway Promenade nears completion
A new promenade making the most of expansive views along the Gold Coast’s spectacular coastline is nearing completion at The Spit (02 February 2021).  More...

Cases

Victoria

Brady Queen Pty Ltd & Ors v Austhome Developments Pty Ltd & Ors [2021] VSC 18
CONTRACT – joint venture heads of agreement – each joint venture party alleges breach of numerous obligations by the other – some breaches found – breaches did not cause any loss – each party’s claim dismissed.
EQUITY – fiduciary duty – joint venture party alleges that other joint venture party in breach of fiduciary duty by undertaking competing project.
EQUITY – existence of fiduciary duty – extent and scope of fiduciary duty in the circumstances – no fiduciary duty in all of the circumstances – alternatively, if fiduciary duty, limited in scope - Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41; Adventure Golf Systems Australia Pty Ltd v Belgravia Health & Leisure Group Pty Ltd [2017] VSCA 326; (2017) 54 VR 625; Chickabo Pty Ltd v Zphere Pty Ltd [2019] VSC 73; Howard v Commissioner of Taxation [2014] HCA 21; (2014) 253 CLR 83.
EQUITY – breach of fiduciary duty – no breach of fiduciary duty in all of the circumstances - Howard v Commissioner of Taxation [2014] HCA 21; (2014) 253 CLR 83.
EQUITY – causation – any breach of fiduciary did not cause any loss - Ancient Order of Foresters in Victoria Friendly Society Limited v Lifeplan Australia Friendly Society Limited [2018] HCA 43; (2018) 92 ALJR 918.

New South Wales

Falzon v Evans [2021] NSWCATAP 25
BUILDING AND CONSTRUCTION –proof of loss for incomplete and defective building work APPEALS – extension of time in which to lodge appeal – no error of law – no error warranting leave to appeal

Southern Oil Refining Pty Ltd v Hydrodec Australia Pty Ltd [2021] NSWSC 24
CONTRACTS – construction – interpretation – co-location of refinery plant – owner’s obligation to make capital payments based on operator’s installation expenditure – later informal variation for further expenditure – whether effective – operator’s obligations to maintain expenditure records and submit to audit – whether complied with – expert determination of “written down value” – whether binding – whether owner entitled to leave plant behind on termination of contract – whether owner obliged to remove plant on termination of contract CONTRACTS – breach of contract – co-location of refinery plant – operator’s obligation to maintain co-located plant – whether obligation breached – whether owner’s obligation to pay tolling fees dependent on operator’s compliance – whether tolling fees already paid recoverable as damages – owner contractually entitled to remove plant – operator’s obligation to co-operate – whether obligation breached by interfering with owner’s contractors – operator’s obligation to manage refinery feedstock – whether obligation breached by mixing contaminated and non-contaminated feedstock TORTS – interference with goods – conversion – co-location of refinery plant – owner contractually entitled to remove plant – whether interference by operator with owner’s contractors would amount to conversion of plant EQUITY – equitable remedies – injunction – trespass – co-location of refinery plant – plant abandoned on land by owner after termination of contract – whether abandonment effective – whether damages an adequate remedy – mandatory injunction for removal GUARANTEE AND INDEMNITY – discharge of guarantor -– variation increasing principal’s liability to creditor – whether surety consented – whether creditor breached record-keeping duties and obligation to co-operate with principal – whether surety discharged by such breaches EVIDENCE – character evidence – tendency rule – application of rule to corporate entity – probative value.

Queensland

Civil Contractors (Aust) Pty Ltd v Galaxy Developments Pty Ltd & Ors; Jones v Galaxy Developments Pty Ltd & Ors [2021] QCA 10
STATUTES – ACTS OF PARLIAMENT – STATUTORY POWERS AND DUTIES – CONSTRUCTION – GENERALLY – where an adjudicator held that Civil Contractors (Aust) Pty Ltd (CCA) should recover an adjudicated amount of $1.4 million from Galaxy Developments Pty Ltd (Galaxy) – where, on Galaxy’s application, the primary judge held that the adjudicator’s decision was delivered beyond any relevant time limit under Building Industry Fairness (Security of Payment) Act 2017 (the Act), and at least for that reason, was void – whether, upon the proper construction of the Act, the adjudicator’s jurisdiction is defined by the relevant time limit, in that the adjudicator’s powers cease once the time limit has passed
STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – SCHEDULES – where the primary judge held that upon the proper construction of the Queensland Building and Construction Commission Act 1991 and the Queensland Building and Construction Commission Regulation 2018, CCA did not hold a building licence to carry out all of the work in question, with the consequences that the building contract under which CCA claimed to be paid was void and for that reason also the adjudicator’s decision was void – where CCA held a building licence in the category “Builder restricted to structural landscaping licence” – whether some of the works carried out by CCA were outside the scope of its licence
APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – OTHER MATTERS – where the primary judge found that the adjudicator could not be said to have acted in good faith, and that the adjudicator had made a misrepresentation, with the consequence that the adjudicator was not entitled to be paid any fees – whether the findings of bad faith and misrepresentation ought to have been made without providing the adjudicator with an opportunity to be heard on those subjects – whether, given the adjudicator failed to make a decision on the application within the required time, the adjudicator is entitled to be paid any fees
Building and Construction Industry Security of Payment Act 2002 Vic s 22(4), s 23(2B), s 28(2)(a)
Building Industry Fairness (Security of Payment) Act 2017 Qld s 85, s 86, s 94, s 95
Queensland Building and Construction Commission Act 1991 Qld s 42
Queensland Building and Construction Commission Regulation 2018 Qld sch 1

Wiggins Island Coal Export Terminal Pty Limited v Civil Mining & Construction Pty Ltd [2021] QCA 8
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS – OFFER OF COMPROMISE OR OFFER TO SETTLE OR CONSENT TO JUDGMENT PURSUANT TO RULES – GENERALLY – where there was a claim and counterclaim – where the appellant made an “all-up” offer to settle “all claims in the proceeding” which was expressed to be under ch 9 pt 5 of the Uniform Civil Procedure Rules 1999 (the Rules) – where the offer did not distinguish between the claim and counterclaim – where the trial judge held that rr 360 and 361 of the Rules did not apply to the appellant’s offer to settle because it did not distinguish between the claim and counterclaim – where the trial judge ordered each party to pay the other’s costs in the proceeding in which it was unsuccessful – where the appellant appeals the costs order on the basis that the offer to settle was effective under the Rules – whether rr 360 and 361 of the Rules apply to the appellant’s offer to settle
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS – INFORMAL OFFERS AND CALDERBANK LETTERS – where the appellant’s offer to settle was accompanied by a letter which bore the heading “Without prejudice except as to costs” – where the appellant argues that, if its offer to settle did not engage rr 360 and 361, it should have been treated as an effective Calderbank offer – whether the appellant’s offer to settle should have been taken into account in the exercise of the costs discretion under r 681 of the Rules
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – APPEALS AS TO COSTS – RELEVANT PRINCIPLES – WHERE DISCRETION NOT EXERCISED – ADEQUACY OF REASONS – where the appellant submits that the respondent failed to comply with its obligations under r 5 of the Rules in its approach to other offers to settle made early in the proceedings – where the trial judge concluded that the complaints made by the appellant against the respondent did not warrant a departure from the general rule that costs follow the event – where the appellant argues that the trial judge erred by failing to give this matter sufficient weight in exercising the Court’s discretion under r 681 – where the appellant argues that the trial judge failed to give adequate reasons for his conclusion – whether the complaint that the trial judge gave insufficient weight to the respondent’s approach to the early offers warrants appellant review – whether the trial judge’s reasons were adequate. Uniform Civil Procedure Rules 1999 Qld r 181, r 352, r 353, r 360, r 361, r 364

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.

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