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Residential Focus

11 September 2019

#Property & Real Estate

Christine Jones

Published by Christine Jones

Residential Focus

Landscaper sentenced for unlicensed contracting

According to a media release published by NSW Department of Finance, Services & Innovation, an unlicensed and uninsured landscaper who received more than $140,000 for unfinished work has been sentenced to a maximum of 18 months prison, with a non-parole period of six months. 

The repeat offending “landscaper” did not hold a contractor licence or insurance as required by the Home Building Act 1989 (NSW) (the Act), and has been the subject of seven enforcement actions by NSW Fair Trading between 2003 and 2015. 

The action by the Department appears to reflect a focus on licensing compliance, in particular in pursuing prosecutions.

The Act defines the following services as “residential building work” that is required to be completed by a licensed contractor:

  • construction of a dwelling
  • making of alterations or additions to a dwelling
  • repairing, renovation, decoration or protective treatment of a dwelling
  • roof plumbing work done in connection with a dwelling
  • specialist work done in connection with a dwelling
  • work concerned in installing in a dwelling any fixture or fixed apparatus that is designed for the heating or cooling of water, food or the atmosphere or for air ventilation or the filtration of water in a swimming pool or spa.

Further, the Home Building Regulation 2014 (NSW) prescribes the following work to be “residential building work”: Erection of pre-fabricated metal-framed home additions and structures; general building work; kitchen, bathroom and laundry renovation; structural landscaping; swimming pool building; bricklaying; carpentry; decorating; dry plastering; excavating; fencing; general concreting; glazing; joinery; metal fabrication; minor maintenance and cleaning; minor tradework; painting; roof plumbing; roof slating; roof tiling; stonemasonry; swimming pool repairs and servicing; underpinning or piering; wet plastering; wall and floor tiling; and waterproofing.

We discuss contractor licensing requirements, and the consequences of breach of the Act, in our March 2019 article which can be viewed here.

We remind homeowners to conduct a licence check before engaging any tradesperson or contractor to perform any of the above services, as unlicensed contractors are legally prohibited from performing residential building work.

Authors: Marie-Louise Scarf & Jeffery Shi

In the media

Why construction standards need to be free
Standards for Australia’s construction industry should be free to access to help combat poor building quality, according to many people in the industry. For years, experts have said that cost and lack of access to the hundreds of standards contained in Australia’s National Construction Code has been a problem (06 Australia 2019).  More...

Apartments could be the crack in the housing market recovery
Evacuations, cracking, flammable cladding — the apartment market has been plagued by damaging, high-profile problems this year. So could it be the thorn in the side of the emerging property market pick-up (05 September 2019).  More...

Building crisis: we need an injection of good evidence
Rectifying an information and evidence shortfall in the now widely cited building and construction crisis needs to be an important part of improving policy making and regulation (05 September 2019).  More...

'Falling costs of solar' drive 20pc increase in panel installation last year as businesses dive in
Green loans for businesses are making long-shelved plans for renewable energy viable and powering up a new boom in solar PV installation (30 August 2019).  More...

HIA: New home sales remain slow
Sales for the three months to July increased by 6.1 per cent on the preceding quarter and remained down by 12.8 per cent compared to this time last year,” stated HIA’s Chief Economist, Tim Reardon (28 August 2019).  More...

Construction recession deepens and spreads across all sectors
Construction work fell by a far sharper than expected 3.8 per cent in the second quarter and, more worryingly, work completed fell across all sectors and in all states and territories (28 August 2019).  More...

Homeowners fork out $10bn to repair defects
Building defects have cost new home owners a staggering $10.5 billion throughout the past decade, according to a national survey undertaken by financial research and comparison group Mozo (28 August 2019).  More...

Australia trails UK on build-to-rent but poised to catch up
Although the market for build-to-rent (BtR) is maturing in places such as the UK, it has yet to take off in Australia. Australia’s softening property market and ongoing demand for new housing are the right conditions to establish a BtR sector in Australia, according to UK BtR specialist (27 August 2019).  More...

Opal Tower builder Icon put aside $1 million for building defects but has spent $24 million so far
Construction giant Icon claims it has spent $24 million since the evacuation of its cracked Opal Tower skyscraper, despite putting only $1 million aside as a "provision for defects" (28 August 2019).  More...

Unlicensed landscaper jailed for 18 months
NSW Fair Trading Commissioner Rose Webb said Hynes, the sole director of Captain Trade Group Pty Ltd, accepted payments totalling $141,500 from five homeowners in 2017, for landscaping work which he did not complete and was uninsured for at the time (26 August 2019).  More...

Practice and courts

BDAV: Single touch payroll for building And construction employers
What building and construction employers need to know to get ready for Single Touch Payroll (29 August 2019). More...

New Australian Standards

DR AS/NZS 2327:2017 Amd 1:2019
Composite structures - Composite steel-concrete construction in buildings – Standards Australia.  More...

GBCA: Sustainable finance industry guide
This industry guide provides information about sustainable finance in the built environment in Australia. It is designed to support investor understanding of Australia’s world-class rating tools and standards, and how these can be applied to direct more capital towards sustainable finance for our built environment (27 August 2019).  More...

ABCB: Energy efficiency scoping study
The ABCB has released an energy efficiency scoping study for public comment. The study outlines an approach and scope for investigating possible changes to the NCC’s energy efficiency provisions, with a focus on NCC 2022. This work will consider the COAG Energy Council’s Trajectory for Low Energy Buildings. Consultation closed 8 September 2019.  More...

CER: Public consultation open for changes to solar postcode zones
The Clean Energy Regulator is proposing updates to postcode zones for small-scale technologies under the Small-scale Renewable Energy Scheme. The changes will affect the number of small-scale technology certificates for eligible systems in certain postcodes. If agreed, the changes will come into effect from 1 October 2019.  More...

AIBS: Inquiry into the regulation of building standards
AIBS gave evidence at the Inquiry into the regulation of building standards, building quality and building disputes by the NSW Legislative Council’s Public Accountability Committee on 28 August.  More...

NSW Fair Trading: Security of Payment laws start soon
The Building and Construction Industry Security of Payment Amendment Act 2018 (the Amendment Act) and the Building and Construction Industry Security of Payment Amendment Regulation 2019 (the amending Regulation) will commence on 21 October 2019.  More...

BPB releases summary of key audit findings for 2019
The Building Professionals Board has released a summary of key findings so far from its 2019 program of certifier audits. Read more about the audit program, including the objectives and summary of findings. As audits continue, more findings will be added (August 2019).

NSW Fair Trading: Part 6 of the EP&A Act postponed until 1 December 2019
The Part 6 provisions of the Environmental Planning and Assessment Act have been postponed and will now start on 1 December 2019. This delay will allow time for the sector to adjust to the regulatory changes that have been progressing around fire safety and the Building and Development Certifiers Act 2018 (30 August 2019).  More...

Planning Circular – Commencement of Part 6 (building and subdivision certification provisions)
FAQ – Occupation certificate
FAQ – New mandatory compliance powers for private principal certifiers
FAQ – New subdivision works certificate
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
If you have any queries, please contact the Department of Planning, Industry and Environment here.  More...


White Constructions Pty Ltd v PBS Holdings Pty Ltd [2019] NSWSC 1166
BUILDING AND CONSTRUCTION LAW – CONTRACT – DAMAGES – Contract to design a sewerage system for a subdivision and submit it for approval – alleged breach consisting of failure to create and submit a design acceptable to the approval authority allegedly having the effect of delaying completion of the subdivision – whether breach established – whether damages established – programming experts called on question of delay – appropriate method of delay analysis – requirement to have regard to evidence – requirement for the plaintiff to establish damages. HELD – no breach established – damages not established.

Islam v Javam 1147
COSTS – where an unnecessary appeal to this Court has been generated as the result of conduct by both plaintiff and defendant – no order as to costs. Submission: The defendant has come up with a defence to characterise it and somehow try and tie it to a home building contract. My submission is that by the defendant doing that, my client shouldn’t be dragged into the Home Building Act just because the defendant wants to put a defence on that ties it to the Home Building Act

Stefanis v Oneview Construction Pty Limited [2019] NSWCATAP 218
APPEAL – Expert evidence – Section 18F defence – Leave to appeal

Nationwide Builders Pty Ltd v Le Roy [2019] NSWCATAP 220
HOME BUILDING – rectification and completion costs – damages for late completion
DISCRETION – order making power under s 48O of Home Building Act – application of preferred outcome principle

DB Homes Australia Pty Limited v Kes [2019] NSWCATAP 221
APPEALS – Building and Construction – Contract – Repudiation – Adequacy of findings

Simcoe v Bate [2019] NSWCATAP 216
APPEAL – failure to appear – whether reasonable opportunity to be heard – whether denial of procedural fairness – whether rehearing should be ordered – construct the stable block, including ground work, concrete slab – Leave to appeal on grounds other than a question of law is refused 

The Owners SP 89023 v AT Building Pty Ltd (No 2) [2019] NSWCATAP 215
COSTS – home building – appeal from first instance costs order
The Owners – SP 89023 must pay the respondents costs of and incidental to appeal AP 19/00156 on the ordinary basis as agreed or assessed. 

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.

Christine Jones

Published by Christine Jones

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