Inside track: Construction & Infrastructure

26 February 2019

#Construction & Infrastructure

Inside track: Construction & Infrastructure

In the media 

Australian government releases first national resources plan in two decades
The Australian government has released the first National Resources Statement in two decades, which aims to boost the country’s position as a global leader in the resources sector (15 February 2019).  More... 

Infrastructure lists big ticket items
Infrastructure Australia’s 2019 Infrastructure Priority List includes 121 nationally significant infrastructure proposals and a $58 billion project pipeline. Chair of Infrastructure Australia (IA), Julieanne Alroe said this was the largest, most comprehensive and most diverse list of investments identified to meet the challenges of the future (14 February 2019).  More...  

Litigation funder IMF Bentham gets behind Australia’s first combustible cladding class action
It’s the first time a combustible cladding class action has been launched in Australia and is being backed by global litigation funder IMF Bentham. Compensation is for people who have interests in buildings in Australia that have certain types of aluminium composite panel cladding with a combustible core comprised substantially of polyethylene (PE) (15 February 2019).  More... 

New South Wales

Further $480 million for Western Sydney roads
Up to 65,000 Western Sydney road users a day will benefit from a $480 million investment by the NSW Liberals & Nationals Government to slash travel times and improve safety for motorists, with major upgrades to Mamre and Mulgoa roads (18 February 2019).  More... 

Biggest overhaul of building laws in New South Wales history
The New South Wales Government will appoint a Building Commissioner to act as the consolidated building regulator in New South Wales, including with responsibility for licensing and auditing practitioners. The plan will also clarify the law to ensure there is an industry-wide duty of care to homeowners and owners corporations so that they have the right to compensation where a building practitioner has been negligent (11 February 2019).  More...  


BCC: Certificates of Conformity cancelled on nine cladding products
CertMark International (CMI) is an accredited certification body under the CodeMark Australia Scheme, and on 20 February 2019, it announced that it had been directed to withdraw the certificates of a number of building products (22 February 2019).  More...

Historical outback town strikes gold with new mine
Mines Minister Dr Anthony Lynham said the 20-year lease was for Laneway Resources (external site) to develop its Agate Creek project (external site), 40km south of Forsayth. Dr Lynham said the companies have met land access agreements and fulfil all existing environmental and Native Title requirements (21 February 2019).  More... 

Project Bank Accounts not the answer to tradies problems: HIA
Queensland builders are set to be strangled by red tape if the Queensland Government proceeds with it costly and unnecessary move to introduce project bank accounts (13 February 2019).  More...  

Extra $75M safety investment in Warrego Highway
More than $75 million is being invested by the Australian and Queensland governments in a safer Warrego Highway from Oakey to Miles over coming months (13 February 2019).  More... 


VBA: The Victorian Building Authority and the City of Melbourne welcome the Corkman court decision
160 Leicester Pty Ltd, and its directors, Stefce Kutlesovski and Raman Shaqiri were fined a record amount of $1.325 million and convicted for their roles in the illegal works (20 February 2019).  More... 

CertMark International withdraws nine certificates for cladding systems, including ACP and EPS
The VBA has been informed that CertMark International (CMI), a product certification body under the CodeMark Scheme, has withdrawn nine certificates for cladding systems, including aluminium composite panels (ACP) and expanded polystyrene (EPS). The VBA is seeking information in relation to the circumstances of withdrawal by CMI (20 February 2019).  More...  


Infrastructure priority list: Project and initiative summaries
Infrastructure Australia: 14 February 2019
The 2019 Infrastructure Priority List details nationally significant investments, providing decision makers with advice and guidance on specific infrastructure investments in Australia.  More... 

Practice and courts

AIBS Statement – PI insurance availability
AIBS has released a statement regarding the availability of PI insurance for building surveyors in Australia (21 February 2019).  More... 

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.  More...  

New South Wales

New South Wales Fair Trading: Changes to building laws
In response to the Building Confidence Report, the Government will support the majority of recommendations, including requiring that: builders declare that buildings have been built according to their plans, and requiring building designers and builders to be registered for this purpose (19 February 2019).  More... 


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


New Practice Note 89 – Extractive Industry and Resources
This planning practice note provides information and guidance about the current extractive industry approvals process and protecting extractive operations and resources (14 February 2019). 



Victorian Building Authority v Andriotis [2019] HCATrans 008
In essence, the Act enables a person who is registered for an occupation in one State to gain registration in another State on the basis of their original registration. The question on this appeal is whether the Commonwealth scheme requires registration of a person by the Mutual Recognition Act where that person has been found not to be of good character.
More specifically in this case, Mr Andriotis has been found to have provided false information to New South Wales in support of his registration there and to have been a party to a scheme intended to deceive the regulators. It was found that he had not dealt candidly and honestly with either New South Wales or Victoria in terms of the regulating authorities and that he lacked candour in his evidence to the AAT. 

New South Wales

Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (In liquidation) [2019] NSWCA 11
EQUITY – Rectification of building contract – whether adjudication application under the Building and Construction Industry Security of Payment Act 1999 (NSW) (Security of Payment Act) made within time – answer depends on the date under the contract for the making of a progress payment – whether the primary Judge was correct to order rectification of the contract by changing the due date for payment – whether the evidence supported the finding that the parties had a common intention, at the time the contract was executed, that the date for payment should be otherwise than as recorded in the contract.
BUILDING AND CONSTRUCTION – adjudication application invalid because made out of time – whether the contractor entitled to institute summary proceedings under s 16(2)(a)(i) of the Security of Payment Act to recover unpaid portion of the scheduled amount as a debt – whether adjudication application, although a nullity, had a factual existence that had legal consequences – whether the invalid adjudication constituted an election between inconsistent statutory remedies so as to preclude summary proceedings to recover the debt.
BUILDING AND CONSTRUCTION - contractor in liquidation – whether the Security of Payment Act, as a matter of construction, is capable of operating for the benefit of a contractor which has gone into liquidation in insolvency – where Façade Treatment Engineering Pty Ltd (in liq) v Brookfield Multiplex Constructions Pty Ltd [2016] VSCA 247; (2016) 337 ALR 452 decides that equivalent Victorian legislation is not available to a contractor in liquidation – whether Victorian Court of Appeal decision is clearly wrong and should not be followed.


Crofts v Multisport Concepts Pty Ltd (in liq) [2019] QCA 26
DEEDS – COVENANTS – GENERALLY – Where the appellant entered into a deed of covenant and assurance for the purpose of complying with licensing requirements of the Queensland Building Services Authority – where clause 2 of that deed provided that in the event the respondent is wound up the appellant would, on written demand by the respondent, pay the Defined Amount to the respondent – where the Defined Amount is defined to mean the amount as stated in an independent review report – where the appellant contends that the second sentence in the definition of Defined Amount acts as a qualification so that the Defined Amount should instead be calculated according to the true financial position of the respondent – whether the learned primary judge erred in construing the deed.
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SETTING ASIDE – Where the respondent sought summary judgment against the appellant for payment of the Defined Amount following the winding up of the respondent – where appellant contended a trial was necessary to determine the Defined Amount under the Deed – whether the learned primary judge erred in finding there was no triable issue.

Wellington v Huaxin Energy (Aust) Pty Ltd (formerly Cuesta Coal Limited) [2019] QSC 18
CONTRACTS – GENERAL CONTRACTUAL PROVISIONS – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – IMPLIED TERMS – GENERALLY – whether implied duty to cooperate existed – whether implied duty to cooperate required defendants to undertake further work – where plaintiffs failed to establish breach of the implied duty to cooperate.
CONTRACTS – GENERAL CONTRACTUAL PROVISIONS – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – IMPLIED TERMS – GENERALLY – whether implied duty to undertake detailed and reliable exploration work existed – where the term was not ‘so obvious’ it goes without saying – where the circumstances yielded a number of possible alternatives.
CONTRACTS – GENERAL CONTRACTUAL PROVISIONS – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – whether plaintiffs’ entitlement to issue of Third Tranche Shares and Third Tranche Options persisted after Third Milestone Date – where ongoing duty inconsistent with express term in Agreement – where inconsistent with Third Milestone Date constituting a “sunset date”.

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

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

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

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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