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Inside track: Construction & Infrastructure

02 July 2019

#Construction & Infrastructure

Inside track: Construction & Infrastructure

In the media

Australian mine tailings dams identified as 'high risk' in the case of failure
Mining giants Rio Tinto, BHP and Glencore have listed several of their tailings dams across Australia as being at "high" or "extreme" risk to public safety if they fail (20 June 2019).  More... 

PCA: Federal leadership needed to resolve looming insurance crisis
The Property Council of Australia is calling for the Commonwealth, state and territory governments to immediately convene an industry roundtable on resolving the insurance crisis. Insurers around the world have withdrawn exclusion-free professional indemnity insurance for building certifiers and other professionals including engineers and architects in the aftermath of fires involving combustible cladding products (28 June 2019).  More... 

Infrastructure boom offsets apartment bust for construction workers
First Australia had the mining boom, then the east coast housing boom, now the nation's economic hopes are pinned to its biggest ever infrastructure boom (24 June 2019).  More... 

Lack of infrastructure information hampers planning
Current reporting of infrastructure doesn’t reflect community experiences or measure performance against access, quality and cost, the head of Australia’s independent infrastructure body says (24 June 2019).  More... 

Federal Court penalises company for terminating subbies’ contract over late union fees
Commercial painting business Prolac P/L and its director Tim Petrusic have been penalised $16,200 for terminating a subcontractor’s contract on the EQ Tower project in Melbourne‘s CBD in 2017 (24 June 2019).  More...  

Most tower blocks defective, study finds
An analysis of 212 building audits in three states has found more than half of high-rise blocks have at least one defect, prompting calls for an insurance overhaul to address the problem (24 June 2019).  More... 

New South Wales

New South Wales building industry facing 'crisis of confidence' after second apartment block evacuation
There is a "crisis of confidence" in the New South Wales building industry following the second emergency evacuation of an apartment block in Sydney in six months, the Insurance Council of Australia and Federal Government warns (19 June 2019).  More...  

IPA: New South Wales cements lead as nation’s largest infrastructure funder
The New South Wales Government has cemented its lead as the largest funder of infrastructure in the country with another stellar Budget, delivering $93 billion in funding over the next four years (18 June 2019).  More... 


Successful contractor announced for Kingaroy Hospital redevelopment project
Construction is just around the corner for the $73.9 million Kingaroy Hospital redevelopment project with the successful construction tender contractor awarded (28 June 2019).  More... 

Record transport budget backs Bruce on Sunny Coast
The Palaszczuk Government has announced it will build the next stage of Bruce Highway upgrades for the Sunshine Coast in its $3.13 billion, four-year road infrastructure map for the region (20 June 2019).  More... 

QBCC: Multi-agency blitz on Gold Coast uncovers numerous building offences
A two-day blitz of Gold Coast building sites by 10 local, State and federal government agencies has reiterated the need for vigilance in checking building standards, after a number of offences were detected, including one that could have had tragic consequences (19 June 2019).  More... 


Review of proposed Melbourne Airport runway
Melbourne Airport has announced a third runway will undergo technical consultation with the Government, airlines and regulatory bodies as part of a detailed review of its proposed east-west alignment (28 June 2019).  More... 

Practice and courts

New South Wales

Building Stronger Foundations
Consultation period: 26/06/2019 to 24/07/2019
The NSW Government is implementing four key reforms to deliver a more robust regulatory framework for the construction of buildings. The consultation period is open until 23 July 2019. The appointment of the Building Commissioner is expected to be finalised in coming weeks.  More... 


Master Builders Queensland: What you need to know about the waste levy
A waste levy of $75/tonne commenced on 1 July 2019. A higher rate of up to $155/tonne will be charged on regulated waste (e.g. asbestos, white goods and architectural and decorative paints). The levy rate will increase by $5 each year over the next four years.  More... 


Taouk v Ho [2019] NSWCA 156
APPEAL – Leave to appeal – building and construction dispute – appeal from Local Court to Supreme Court on a question of law – primary judge found that respondent not bound by releases and bars to action in the settlement deed – where deed delivered to applicant’s solicitors – where applicant disclaimed deed without executing it – whether injustice to applicant in refusing leave to appeal

Rhomberg Rail Australia Pty Ltd v Concrete Evidence Pty Limited [2019] NSWSC 755
BUILDING AND CONSTRUCTION – Adjudication determination under section 22 of Building and Construction Industry Security of Payment Act 1999 (NSW) – whether determination void – jurisdictional error – whether adjudicator failed to afford natural justice and procedural fairness in reaching determination – whether denial of procedural fairness was substantial – whether entitled to recover in respect of unaffected part of claim

Pollak v Yapp [2019] NSWCA 150
Appeal dismissed with costs. CONTRACTS — Construction — Interpretation — Contract for sale of land — Special condition in contract required vendor to ensure all development conditions complied with prior to completion — Whether warranty had effect of requiring all works subject of development approval to be completed —Special condition contained disclosure that some works were carried out in conformity with development consent but lower staircase requires replacement — Whether disclosure amounts to warranty that all works subject of development approval have been completed — Where some but not all works the subject of development approval in fact completed — Whether provision of interim occupation certificate capable of satisfying vendors’ obligation to provide an occupation certificate
BUILDING AND CONSTRUCTION — Occupation certificates — Whether interim occupation certificate that certifies some but not all of works the subject of development approval means that whole premises cannot be lawfully occupied — Whether occupation certificate relates to entire property or merely part of property on which certified works situated — Meaning of “altered portion” of existing building (iv) please provide details of insurance under the Home Building Act 1989.” 

Aurizon Network Pty Ltd v Glencore Coal Queensland Pty Ltd & Ors [2019] QSC 163
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – CUSTOM AND USAGE – INCORPORATION INTO CONTRACT – CONSISTENCY WITH EXPRESS TERMS – Where ordinary meaning of text is clear - where defendants submit that legal meaning of text cannot be affected by extrinsic facts - whether the ambiguity requirement is a gateway that must be passed through before admission of evidence of extrinsic facts in every dispute relating to the construction of a contractual term in a formal written contract – whether ambiguity gateway does not apply where something has clearly gone wrong with the text on its ordinary meaning.
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – CUSTOM AND USAGE – INCORPORATION INTO CONTRACT – CONSISTENCY WITH EXPRESS TERMS – where ordinary meaning of text is clear - where defendants submit that legal meaning of text cannot be affected by surprising operation or commercial inconvenience or disadvantage to the plaintiff - whether the operation of the text on its ordinary meaning amounts to a commercial absurdity – whether the court may depart from ordinary meaning in order to avoid a commercial absurdity – whether the construction contended for is sufficiently clear
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – IMPLIED TERMS – GENERALLY – where ordinary meaning of text is clear - where defendants submit that term cannot be implied because of failure to satisfy requirements for implication of a term implied in fact – whether the implied term contended for is sufficiently clear
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – IMPLIED TERMS – GENERALLY – where each defendant notified the plaintiff and each Other Customer under cl 6.1(c) of the WIRP Deed that every relevant Customer’s Segment for the defendant was to cease being a Customer’s Segment – where notice had effect of reducing each defendants’ liability to pay the WIRP Fee to nil – where notice had effect of shifting the burden of the WIRP Fee for the Customer’s Proportion for the Segment onto any remaining Segment Customer for the Segment – whether there is an implied term in the WIRP Deed that a Customer is obliged to act in good faith towards and deal fairly with the plaintiff in respect of giving notice under cl 6.1(c)
Queensland Competition Authority Act 1997 Qld s 84, s 100, s 101, s 133, s 136, s 158, s 250

Sanrus Pty Ltd & Ors v Monto Coal 2 Pty Ltd & Ors [2019] QSC 162
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PROCEDURAL ASPECTS OF EVIDENCE – EXPERT REPORTS AND EXPERT EVIDENCE – OTHER MATTERS – Where the proceeding concerns complaints made by a junior joint venture partner about the conduct of a senior joint venture partner in relation to decisions made in the course of performing a joint venture for exploitation of a coal deposit – where a pre-trial case management regime imposed on the parties deadlines for filing and serving expert reports – where the plaintiffs sought leave to adduce new expert evidence on day 31 of a long and factually complex trial and shortly before the expert conclaves and joint expert reports process was due to commence – where the plaintiffs had enjoyed a significant indulgence in being permitted to amend their case based on new expert evidence shortly before the trial was due to commence which imposed a considerable burden on the defendants – where the plaintiffs must be taken as having made a forensic decision in finalising the case they would take to trial at the time the amendment was permitted – where the defendants would suffer prejudice if the plaintiffs were granted leave to amend – whether the plaintiffs should be granted leave to rely on additional expert evidence at trial. Uniform Civil Procedure Rules 1999 Qld Ch 11 Pt 5

Re Australia's Residential Builder Pty Ltd (in liq) (No 2) [2019] VSC 389
CORPORATIONS – Unsuccessful appeal by liquidator against decision of associate justice – Liquidator ordered to pay costs of successful party on appeal – Calderbank offer – Calderbank offer not accepted – Whether liquidator entitled to indemnity for own costs and for costs of successful party from assets of company – Held liquidator personally liable for own costs and costs of successful party and not entitled to indemnity from assets of company.

Troy Lewis, Partner & National Head of Construction and Infrastructure 
T: +61 7 3135 0614 

Stephen Burton, Partner 
T: +61 7 3135 0604 

Suzy Cairney, Partner 
T: +61 7 3135 0684 

Stephen Natoli, Partner 
T: +61 3 9321 9796 

Kyle Siebel, Partner 
T: +61 3 9321 9877 

Scott Alden, Partner 
T: +61 2 8083 0419 

Christine Jones, Partner 
T: +61 2 8083 0477 

Helena Golovanoff, Partner 
T: +61 2 8083 0443 

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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