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Inside track: Construction & Infrastructure

12 March 2019

#Construction & Infrastructure

Inside track: Construction & Infrastructure

In the media

Building quality fiasco: The fallout rumbles into dangerous zones as governments fail to govern
As the building quality fiasco continues to bite, insurers are starting to insert inconvenient exclusions into their policies, forcing private certifiers in NSW to warn that building in the state could grind to a halt (7 March 2019).  More...

MBA: Review of model WHS laws report
Master Builders Australia welcomes the release of the report of the review of model WHS laws conducted by Marie Boland which has examined model WHS Laws to ensure they are working effectively (25 February 2019).  More...

New South Wales

A new era for New South Wales's local roads and iconic timber bridges
New South Wales Deputy Premier John Barilaro and Minister for Roads, Maritime and Freight Melinda Pavey have announced more than $1 billion dollars to help clear the council roads maintenance backlog, repair NSW’s worst timber bridges, and reclaim up to 15,000 kilometres of council owned regional roads (7 March 2019).  More...

CIMIC group wins $725m Regional Rail Project
CIMIC Group companies Pacific Partnerships, UGL and CPB Contractors, as part of the Momentum Trains consortium, have been selected by Transport for NSW to deliver the $1.26 billion Regional Rail Project as a design, build, finance and maintain contract (5 March 2019).  More...

Queensland

Lendlease wins Gold Coast Airport’s terminal expansion
Queensland Airports Limited has appointed infrastructure giant Lendlease for the development of the Gold Coast Airport’s southern terminal expansion. The terminal expansion project is expected to generate employment locally with Lendlease likely to appoint more than 1500 subcontractors and suppliers (8 March 2019).  More...

Palaszczuk Government helps protect local heritage places in Brisbane
The Palaszczuk Government will give the Brisbane City Council new powers to issue repair and maintenance notices to protect local heritage-listed places from becoming dilapidated (06 March 2019).  More...

Victoria

West Gate Tunnel funding secured
The national infrastructure sector welcomes the decision of the Victorian Parliament to provide certainty in funding arrangements to the West Gate Tunnel project following a vote on an Opposition motion, says Infrastructure Partnerships Australia (06 March 2019).  More...

Fire engineer, architect and surveyor wear $5.7m of damages from flammable cladding blaze
Apartment owners at Melbourne's Lacrosse tower in Docklands win millions in damages after a fire fuelled by flammable cladding caused significant damage to the building in November 2014 (28 February 2019).  More... 

Near completed Collins Arch wins $100 million injection from CEFC
The 47-level Collins Arch mixed use project on Melbourne’s Collins Street will be kitted out with high efficiency air-conditioning and other low-impact technologies thanks to a $100 million investment from the Clean Energy Finance Corporation (28 February 2019).  More...

Published - articles, papers, reports

Opal Tower investigation: Final report
Mark Hoffman, John Carter, Stephen Foster; Department of Planning and Environment (NSW): 22 February 2019
This report confirms that a number of structural design and construction issues, including non-compliance with national codes and standards were responsible for the observed damage at Opal Tower in Sydney.

Infrastructure Australia Speech: 2019 Infrastructure Priority List—Focus on Queensland
Infrastructure Australia’s newest release – the 2019 Infrastructure Priority List (26 February 2019).  More...

In practice and courts

ABCB reminder: NCC 2019
All three volumes of the NCC 2019 preview, as well as The Guide to Volume One, are now available to download. To get your copy, log into your NCC account through the NCC Online or create your NCC account and login to access. NCC 2019 will be adopted from 1 May 2019. If you’d like an overview of the key changes and dates, please check out the latest ABCB Connect article.

Queensland

BIF Discussion Paper
Master Builders recently responded to the BIF Reforms Implementation and Evaluation Panel Discussion Paper (8 March 2019).  More...

QBCC: Certificates of Conformity (CertMark International (CMI)
The duty of care requires anyone in the building product supply chain to ensure that all building products are safe, fit for purpose, and that they meet all relevant standards.Multi-storey building owners are required to complete the Safer Buildings combustible cladding checklist, with Part 1 due for completion by 29 March 2019.  More... 

Master Builders Queensland: Minimum Financial Requirements (MFR) reforms
The remainder of the reforms will be implemented as part of Phase 2, commencing 1 April 2019.
Note: The QBCC has already started receiving financial statements from licensees through the MyQBCC portal.  More...

Cases

New South Wales

Bellerive Homes Pty Ltd v FW Projects Pty Ltd [2019] NSWSC 193
CONTEMPT – Civil contempt – where parties entered into design and construction contract – where application made under the Building and Construction Industry Security of Payment Act 1999 (NSW) for adjudication of contractual dispute – where adjudication was that plaintiff entitled to judgment for $1,110,063.83 – where adjudication certificate filed as judgment for a debt pursuant to s 25(1) of the Building and Construction Industry Security of Payment Act 1999 (NSW) – where adjudicated sum unsatisfied – where plaintiff seeks defendant be punished for contempt by declaration, sequestration order, fine or other orders – where defendant made no case submission – whether prima facie case respondents guilty of contempt – May v O’ Sullivan (1955) 92 CLR 654; [1995] HCA 38 – whether failure to pay a judgment debt is capable of constituting civil contempt – whether relevant distinction between a judgment debt and other order to pay money.
CIVIL PROCEDURE – Civil contempt – where adjudication certificate filed as a judgment for a debt pursuant to s 25(1) of the Building and Construction Industry Security of Payment Act 1999 (NSW) – where judgment given file number – where contempt proceedings commenced by notice of motion – whether proceedings should have commenced by way of summons – Supreme Court Rules 1970 (NSW), Part 55, rule 6(2) – Civil Procedure Act 2005 (NSW), s 63, 133(2). 

Mick Fabar Constructions Pty Limited as Trustee for the M Fabar Family Trust No 2 v Lingrp Pty Ltd t/as Lindfield Group [2019] NSWSC 158 
(1) The amended summons commencing an appeal filed on 12 February 2016 is dismissed.
LOCAL COURT – Appeals – whether findings of offer and acceptance and terms of contract available on the evidence – whether on proper construction of contract commencement date different from the date in the written documentation – whether new point not raised at first instance should be allowed to be raised on appeal – whether leave to appeal should be granted. Building and Construction Industry Security of Payment Act 1999 (NSW); Civil Procedure Act 2005 (NSW); Local Court Act 2007 (NSW).

Queensland

Queensland Nickel Sales Pty Ltd & Ors v Mount Isa Mines Limited [2019] QCA 32
APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – PROCEDURE – QUEENSLAND – POWERS OF COURT – ORDERS SET ASIDE OR VARIED.
APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN GRANTED.
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – GENERALLY – REASONS FOR JUDGMENT – ADEQUACY OF REASONS.
REAL PROPERTY – LICENCES – TERMINATION – Where the respondent granted a licence for non-exclusive access to a berth at the Port of Townsville (the Premises) for the purposes of berthing vessels, unloading and loading nickel ore and refined products and for the construction, installation and maintenance of certain works – where the licence agreement contained an essential term to punctually pay all harbour dues – where the respondent alleges that harbour dues were not paid – where the respondent alleges that the licence agreement was terminated because of failure to pay the harbour dues – whether the licence agreement was terminated – whether the purported termination of the licence was void by reason of s 440B(b) of the Corporations Act 2001 (Cth) – whether the appellants can rely upon relief against forfeiture of the licence – whether the right of termination purportedly exercised by the respondent was void as a penalty.
TORTS – TRESPASS – TRESPASS TO LAND AND RIGHTS OF REAL PROPERTY – REMEDIES – Where the respondents were awarded damages for trespass to property because of equipment belonging to the appellants trespassing on the premises – whether the learned primary judge correctly calculated an award of damages for trespass.

Victoria

Primary Flooring Pty Ltd v Australian Comfort Group Pty Ltd [2019] VSC 104
CONTRACT – Supply agreement – proper construction – implied terms – good faith in contract – BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 – Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 – Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104 – Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 – Esso Australia Resources Pty Ltd v Southern Pacific Petroleum NL [2005] VSCA 228 – Virk Pty Ltd (in liq) v YUM! Restaurants Australia Pty Ltd [2017] FCAFC 190.

John Beever (Aust) Pty Ltd v Paper Australia Pty Ltd [2019] VSC 126
BUILDING AND CONSTRUCTION – Whether payment claim identifies the construction work to which the progress payment relates – Whether payment claim states that it is made under the Act – Sections 14(2)(c) and 14(2)(e) of the Building and Construction Industry Security of Payment Act 2002 (Vic).
PRACTICE AND PROCEDURE – Nature of judgment pursuant to s 16(2) and s 17(2) of the Building and Construction Industry Security of Payment Act 2002 (Vic).
PRACTICE AND PROCEDURE – Application for summary judgment – whether summary judgment appropriate where question of law but no disputed facts.

Republic of Turkey v Mackie Pty Ltd [2019] VSC 103
BUILDING AND CONSTRUCTION LAW—Appeal—orders of Victorian Civil and Administrative Tribunal awarding damages to builder—whether in error of law—tribunal constituted by non-specialist—whether qualified to determine issues in proceeding—whether apparently biased—whether acted fairly and according to substantial merits of case—scope, application and limits of that obligation—AS 2124–1992, cll 23, 35.5 and 40.5—superintendent’s responsibility to act honestly and arrive at reasonable measure or value of work, quantities or time—whether properly applied—superintendent’s power to grant extensions of time for practical completion—whether properly exercised—whether concurrent delays taken into account—reserve power to grant extensions at any time for any reason—whether available to tribunal—whether properly exercised—scope and application of that power—superintendent’s power to value variations—whether properly applied—Victorian Civil and Administrative Appeals Tribunal Act 1998 (Vic) ss 97, 98, 148(1).

Zeng v Leeda Projects Pty Ltd [2019] VSC 106
APPEAL – Application for leave to appeal on question of law – Victorian Civil and Administrative Tribunal – Senior Member awarded nominal damages for respondent’s breach of implied term requiring building works to be completed within reasonable period of time – appellant could not access property for 130 weeks due to respondent’s breach of contract – loss of use damages for breach of contract – measure of damages by reference to rental value of property during delay period – application for leave to appeal granted and appeal upheld – loss of use damages awarded – whether damages should be reduced by reason of failure to mitigate loss – whether proceeding should be remitted to the Victorian Civil and Administrative Tribunal – no remittal of proceeding – Civil Procedure Act 2010 s 7 – Domestic Building Contracts Act 1995 ss 42, 53, 57, 57A – Victorian Civil and Administrative Tribunal Act 1998 ss 109, 148.

Legislation

Queensland

Natural Resources and Other Legislation Amendment Bill 2019
Introduced by: Hon A Lynham MP on 26/02/2019
Stage reached: Referred to Committee on 26/02/2019

Contacts:
Brisbane
Troy Lewis, Partner & National Head of Construction and Infrastructure 
T: +61 7 3135 0614 
E: troy.lewis@holdingredlich.com

Stephen Burton, Partner 
T: +61 7 3135 0604 
E: stephen.burton@holdingredlich.com

Suzy Cairney, Partner 
T: +61 7 3135 0684 
E: suzy.cairney@holdingredlich.com

Melbourne
Stephen Natoli, Partner 
T: +61 3 9321 9796 
E: stephen.natoli@holdingredlich.com

Kyle Siebel, Partner 
T: +61 3 9321 9877 
E: kyle.siebel@holdingredlich.com

Sydney
Scott Alden, Partner 
T: +61 2 8083 0419 
E: scott.alden@holdingredlich.com

Christine Jones, Partner 
T: +61 2 8083 0477 
E: christine.jones@holdingredlich.com

Helena Golovanoff, Partner 
T: +61 2 8083 0443 
E: helena.golovanoff@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 publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources. 

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