Appeal Panel decision delivered on Biowood
On 15 November 2019, the NSW Civil and Administrative Tribunal (Tribunal) determined that a treated wooden cladding product called “Biowood” was combustible, not sufficiently fire retardant and was in breach of the requirements of the Building Code of Australia (BCA) and awarded an owners corporation the cost of removing and replacing it from the façade of a residential apartment building.
The decision was significant as it was the first decision of any court or tribunal in Australia after the Melbourne Lacrosse fire, where damages were awarded for the cost of replacing combustible cladding, other than for aluminium composite cladding (ACP), which is the subject of bans in NSW and other states.
The defendant builder and developer both appealed the decision. The Appeal Panel of the Tribunal has now delivered its determination on the appeal, which upholds the original decision.
Being an appeal, the Appeal Panel did not hear new evidence but was required to determine whether the Tribunal below had sufficient grounds for making its original decision and whether there had been any errors in making that decision.
The Appeal Panel determined that there was a reasonable basis for and no error in the original decision and that the owners corporation had sufficiently demonstrated the combustibility and risk of fire spread created by the product through its expert evidence, to establish that the product was not BCA compliant, imposed an undue risk on the occupants and users of the building, was accordingly not fit for purpose and amounted to a breach of the statutory warranties in section 18B of the Home Building Act 1989 (NSW) (Act).
Some likely consequences of the decision are below:
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In the matter of Vista Del Mare Pty Ltd  NSWSC 938
CORPORATIONS — Winding up — Statutory demand — Whether statutory demand should be set aside by reason of offsetting claim — Where Plaintiff makes offsetting claim for defective construction works — Where expert evidence provides opinion on rectification cost.
Decision restricted  NSWCATAP 163
BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Statutory warranty — In accordance with the law - Building Code of Australia – Whether issue of interim occupation certificate creates an irrebuttable presumption that the building is BCA compliant – Whether attachment of “Biowood” to the exterior walls constituted an “undue risk of fire spread via the façade of the building” – Words and phrases – “undue risk”
Price v Commissioner for Fair Trading  NSWCATOD 93
ADMINISTRATIVE LAW – administrative review – licensing – whether Applicant meets requirements for Issue of builders licence - application of Instrument as policy – experience requirements not met – not unfair or unjust to apply policy - Administrative Decisions Review Act 1997; Civil and Administrative Tribunal Act 2013; Evidence Act 1995; Home Building Act 1989
Florida Kitchens Pty Ltd v Number One Cutting Service Pty Ltd trading as Number One Marble and Granite 
Summons seeking leave to appeal dismissed, with costs. APPEALS – leave – dismissal of appeal from order for provision of security for costs – orders made against sole director and shareholder – no question of principle – leave refused - Civil and Administrative Tribunal Act 2013 (NSW), s 83; Civil Procedure Act 2005 (NSW), s 56; Home Building Act 1989 (NSW); Uniform Civil Procedure Rules 2005 (NSW), rr 49.4, 51.12, 51.18, 59.11
F.E. V Mono Constructions Pty Ltd v Beattie  NSWSC 1093
CIVIL PROCEDURE – stay of proceedings – pending appeal – where there is no practical benefit of imposing a stay CIVIL PROCEDURE – summary disposal – dismissal of proceedings – where action may be maintainable
The remaining plaintiff corporation, which is unrepresented, is suing the law practice defendants for professional negligence in the performance of legal work and the provision of legal advice in a home building dispute brought against the plaintiff by former customers, originally in the Consumer Trader and Tenancy Tribunal, and continued in the Civil and Administrative Tribunal (NCAT)
Calderwood v Department of Planning, Industry and Environment; Calderwood v Campbelltown City Council; Department of Planning, Industry & Environment v City of Ryde  NSWCATAD 200
GOVERNMENT INFORMATION- Combustible [Flammable] Cladding Register- disclosure of addresses of buildings on Register- agency can rely on additional factors in Table negative to disclosure other than those referred to in access decision-denial of access affirmed
Michael Kuehn & Jennifer Kuehn v Masterton Homes (NSW) Pty Ltd t/as Masterton Homes (NSW) Pty Ltd  NSWSC 1049
CONTRACT – Whether parties compromised or settled proceedings between them – One of the plaintiffs sued the first defendant house builder in the NSW Civil & Administrative Tribunal (NCAT) for damages, alleging defective construction of their house – The first defendant alleged that on 29 July 2019 when the proceedings were before NCAT, a binding compromise or settlement of the claims of both plaintiffs was entered into
HELD – No binding compromise or settlement was entered into because the other plaintiff was not a party to any arrangement and, in any event, the objective intention of the parties was that there would be no binding arrangement until the terms of it were embodied in a formal deed signed by all of them.
One Pro Baulkham Hills Pty Ltd v Ming Tian Real Property Pty Ltd  NSWSC 1043
CONTRACTS – building contract – construction – conditions precedent – whether conditions precedent were to formation of contract or parties’ performance of their obligations under the contract – whether defendant contractor obliged to commence work under contract – whether failure by defendant to provide bank guarantees and evidence of home warranty insurance caused plaintiff to suffer damage
CONTRACTS – ambit of exclusion clause – whether exclusion clause survived consensual termination of contract
CONTRACTS – remedies – damages – whether plaintiff principal proved it had suffered damage by reason of defendant’s conduct
CONSUMER LAW – misleading or deceptive conduct – where director of defendant represented guarantee was genuine – where bank guarantee was not genuine – where plaintiff general manager saw at once that bank guarantee was not genuine – whether plaintiff has suffered any loss by director’s conduct
Loneragan v The Owners - Strata Plan No 16519  NSWCATAP 177
APPEAL — NCAT — questions of law — leave to appeal from decision of Consumer and Commercial Division of NCAT
LAND LAW — strata title — common property — maintenance and repair of common property ─ relationship between ss 106 and 108 of the Strata Schemes Management Act 2015
EVIDENCE — expert evidence — whether Tribunal permitted to consider whether witness was an expert in proceedings in which NCAT Procedural Direction 3, Expert Evidence did not apply
Crea v Bedrock Construction and Development Pty Ltd; Bedrock Construction and Development Pty Ltd v Crea & Anor  sadc 124
CONTRACTS - Building, Engineering and related contracts - performance of work
CONTRACTS - Building, engineering and related contracts - the contract - construction of particular contracts and implied conditions - variations
Regulations and other miscellaneous instruments
Residential Apartment Buildings (Compliance and Enforcement Powers) Regulation 2020
(2020-475) — published LW 14 August 2020
Road Transport Amendment (Miscellaneous) Regulation 2020
(2020-476) — published LW 14 August 2020
Western City and Aerotropolis Authority Amendment (Operational Area) Regulation 2020
(2020-479) — published LW 14 August 2020
Administrative Arrangements (Administration of Acts—Amendment No 5) Order 2020
(2020-389) — published LW 3 July 2020
Home Building Amendment (Fees) Regulation 2020
(2020-314) — published LW 26 June 2020
Building and Development Certifiers Amendment (Provision of Information) Regulation 2020
(2020-300) — published LW 26 June 2020
Home Building Amendment (Miscellaneous) Regulation 2020 (2020-179)
published LW 1 May 2020
Environmental Planning Instruments
State Environmental Planning Policy Amendment (Western Gateway Sub-precinct) 2020
(2020-480) — published LW 13 August 2020
Bills assented to
State Revenue Legislation Amendment (COVID-19 Housing Response) Act 2020 No 19 — Assented to 11 August 2020
For the full text of Bills, and details on the passage of Bills, see Bills.
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.