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Inside track: Construction & Infrastructure

22 October 2019

#Construction & Infrastructure

Inside track: Construction & Infrastructure

In the media

Housing downturn will be a larger-than-expected drag on economy, RBA warns
Not only is the property downturn hitting household consumption, it's also a big drag on economic growth and likely to last for another year, the RBA's deputy governor warns (17 October 2019).  More... 

‘Absolutely devastating': Mascot Towers cracks getting bigger, report finds
The latest update on the troubled Sydney apartment block finds existing cracks in the building have widened and new cracking has appeared, as owners continue to argue that they cannot afford repairs (16 October 2019).  More...

Australia looks to sustainable zero carbon emissions for major works
Australia is currently driving world leading outcomes and impacts throughout the infrastructure development lifecycle to ensure sustainability is successfully delivered on major projects such as the Sydney Metro North West Project and Canberra Metro. Both projects effectively utilise renewable energy sources and deliver reduced carbon emissions (16 October 2019).  More... 

Pressure growing on governments for cladding action
Pressure is growing on state governments to help fund building defect rectification as problems such as the Mascot Towers evacuation in Sydney add urgency to the issue, a Sedgwick executive says (14 October 2019). More... 

HIA supports next steps for first home loan deposit scheme
Graham Wolfe, HIA Managing Director said the Bill’s passage means that the National Housing Finance and Investment Corporation (NHFIC) will be able to offer the deposit guarantees that underpin the First Home Loan Deposit Scheme (14 October 2019).  More... 

BDAV: Building Designer insurance update
The Grenfell Tower tragedy in 2017 showed that there is a real risk with buildings that are clad with flammable panels. Building Designers need to ensure they remain vigilant when selecting their partners in the building profession. Working with experienced and knowledgeable people as well as staying up to date with information from their Association, will ensure that their exposure is reduced (09 October 2019).  More...

Project to revolutionise solar construction
Australia’s solar industry is set for a major boost thanks to research involving a startup company and UNSW Sydney, supported by the NSW Government to embed solar panels into building materials (15 October 2019).  More...


Port of Brisbane releases sustainability report
Port of Brisbane has released its Sustainability Report 2018/19, outlining its sustainability progress and achievements for the year. The strategy aligns to the United Nations Sustainable Development Goals (UN SDGs) and reports against the internationally recognised GRI Framework (17 October 2019).  More...


Asbestos material allegedly left unsecured at construction site in Melbourne's west
Worksafe Victoria confirms it is investigating after suspected asbestos material is allegedly left unsecured near a childcare centre in Melbourne's west (07 October 2019).  More...


Coordination of generation and transmission infrastructure proposed access model: discussion paper
Australian Energy Market Commission: 14 October 2019
The electricity sector transition that is currently under way is changing the dynamics of the power system. Traditional thermal plants are closing, and more renewable and asynchronous generators are coming to the power system. This paper sets out a proposed model for generators to locate in more cost-effective places, and access the transmission network more efficiently. More...

Practice and courts

ABCB: NCC 2019 will be amended out-of-cycle
The ABCB is undertaking an out-of-cycle amendment for the 2019 edition of the National Construction Code. It will be known as NCC 2019 Amendment 1. The amendment is intended to introduce enhanced fire safety measures for early childhood centres in high-rise buildings and address recommendations identified in the Shergold Weir Building Confidence Report. Consultation closed on 10 October 2019.  More...

New South Wales

Draft regulations for building certifiers
The New South Wales Government is seeking feedback on a draft regulation for building and development certifiers. The proposed Building and Development Certifiers Regulation 2019 is open for comment until 28 October 2019. A new Building and Development Certifiers Regulation 2019 must be introduced in order to bring the Building and Development Certifiers Act 2018 into force. For more information and to view the documents go to the Department of Customer Services website.

Draft legislation for design and building practitioners
The New South Wales Government is seeking feedback on new draft legislation governing the design, building and construction sectors. The Design and Building Practitioners Bill 2019 has been released as part of the government’s response to recommendations in the Building Confidence Report (by Professor Peter Shergold and Bronwyn Weir). A regulation will be developed in 2020 to support the bill. Submissions closed 16 October 2019. Find out more and provide feedback.

New South Wales 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) came into effect on 21 October 2019.  More...


Mann v Paterson Constructions Pty Ltd [2019] HCA 32
Appeal allowed with costs.
Restitution – Unjust enrichment – Work and labour done – Where land owners and builder entered into contract to which Domestic Building Contracts Act 1995 (Vic) applied – Where contract provided for progress payments at completion of stages – Where owners requested, and builder carried out, variations to plans and specifications in contract without giving written notice as required by s 38 of Act – Where owners repudiated contract after builder raised invoice claiming for variations – Where contract terminated by builder's acceptance of owners' repudiation – Whether s 38 of Act applied to limit amount recoverable by builder for variations – Whether builder entitled to recover in restitution as alternative to claim in damages for breach of contract – Whether contract price operated as ceiling on amount recoverable by way of restitution.
Words and phrases – "accrued rights", "alternative restitutionary remedy", "common counts", "completed stage", "contract price ceiling", "contractual incentives", "domestic building contract", "failure of basis", "failure of consideration", "limit on recovery", "measure of restitution", "notice", "primary and secondary obligations", "principle of legality", "protective provisions", "qualifying or vitiating factor", "quantum meruit", "quasi-contractual obligation", "repudiation", "restitution", "subjective devaluation", "unjust enrichment", "variations", "work and labour done". Domestic Building Contracts Act 1995 (Vic), ss 1, 3, 4, 16, 27, 38, 39, 53, 132.

New South Wales

Blue Haven Pools South Pty Ltd v Maloney [2019] NSWCATAP 259
APPEAL – whether permitted to raise new issue on appeal
CONTRACT – construction of contract – whether capricious, unreasonable, inconvenient or unjust
CONTRACT – repudiation – whether retracted by conduct

Vannella Pty Limited atf Capitalist Family Trust v TFM Epping Land Pty Ltd; Decon Australia Pty Limited v TFM Epping Land Pty Ltd; Vannella Pty Limited v TFM Epping Land Pty Ltd [2019] NSWSC 1379
BUILDING AND CONSTRUCTION – payment claims under the Building and Construction Industry Security of Payment Act 1999 (NSW) – application for summary judgment – whether validity of payment claim is a triable issue – whether email constitutes payment schedule – where email fails to specify the claims to which it objects and the grounds for objection 
COSTS – security for costs – relevance of personal undertaking by director – discretion to order – no issue of principle


Sanrus Pty Ltd v Monto Coal 2 Pty Ltd (No 8) [2019] QSC 255
EVIDENCE – ADMISSIBILITY – OPINION EVIDENCE – EXPERT OPINION – GENERALLY – where the defendants sought to adduce expert evidence in the form of reports from experts in coal markets and coal pricing – where the plaintiffs objected to parts of some of the reports produced by the experts – where the bases of the objections included: that opinions contained in the report were irrelevant as the nature, content or existence of particular matters was not identified; that the opinions were inadmissible as they were to the state of mind of a third party; that the opinions were inadmissible as the basis of knowledge was not identified and the facts underpinning the assertions were not stated; and that the opinions were hearsay – whether the objections to the expert reports should be upheld

Aurizon Network Pty Ltd v Glencore Coal Queensland Pty Ltd & Ors (No. 2) [2019] QSC 249
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – PARTIAL SUCCESS – Where the plaintiff was the successful party – Where the plaintiff was successful on one of three issues – Whether costs should be awarded on a proportional basis – Where the defendants were ordered to pay 65 percent of the plaintiff’s assessed costs as an estimate made on the broad-brush basis

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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