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Inside track: Construction & Infrastructure

06 October 2020

#Construction & Infrastructure

Inside track: Construction & Infrastructure

In the media

HomeBuilder scheme: construction industry warns of ‘bust’ if program isn’t extended
The scheme has a looming December 31 end date everywhere except Victoria, forcing some builders to turn potential customers away to meet their obligations with current clients who have signed contracts. Victorians have a three-month extension given the strict, stage four lockdown (02 October 2020).  More...

Helping builders and tradies staring down barrel of destruction
Master Builders Australia commends the Federal Government’s expansion of the First Home Loan Deposit Scheme.  Boosting home ownership and residential building activity are among the most effective ways to fire up aggregate demand, which is exactly what we need right now (02 October 2020).  More...

CFMEU and ACA urge reforms to spark housing construction boom
The CFMEU and the Australian Constructors Association are calling for targeted reforms to drive construction in Build-To-Rent and social housing to stimulate the economy and boost jobs ahead of the Federal Budget (02 October 2020).  More...

CFMMEU officials penalised $282,200 over Palmerston Police Station intimidation
The Federal Court has penalised the CFMMEU and three of its officials $282,200 for attempting to shut down construction at the Palmerston Police Station site in May 2018 (02 October 2020).  More...

ACA Releases Roadmap for Industry Reform to deliver billions in annual cost savings, create  more jobs
The ACA released its roadmap for major industry reform which it believes could unlock billions in project cost savings each year and create more than 10,000 new jobs.. In Australia, there is an opportunity to build an extra $10 billion[1] of infrastructure each year for the same price (01 October 2020).  More...

Ports Australia pioneers world-first sustainability strategy guide
In a world-first, Ports Australia has published the Port Sustainability Strategy Development Guide to provide Australian ports with a systematic and robust approach to sustainability  (28 September 2020).  More...

HIA: Impact of HomeBuilder evident in detached building approvals
The impact of HomeBuilder is now emergingin the ABS Building Approvals Data and there is a significant divergence between the outlook for detached and multi-unit dwellings (30 September 2020).  More...

AIA: Energy roadmap should lead to net-zero emissions
In welcoming the Federal Government’s recent announcement to invest $1.9 billion in new and emerging technologies to lower emissions, the Australian Institute of Architects (AIA) has urged it to also accelerate the transition to a carbon-neutral economy (29 September 2020).  More...

An EPiC initiative to build more sustainable cities
The Environmental Performance in Construction (EPiC) database is a new resource which has been developed to provide easily accessible, consistent and transparent data on the environmental performance of a broad range of common construction materials in Australia (29 September 2020).  More...

How Australia’s construction industry can adapt and build resilience landscape
In Australia, our construction industry comprises nine per cent of GDP and the sector is the largest non-service related industry. Investment in innovation and technology is required to adapt and build resilience both in the short and longer-term, and the most digitally mature organisations are recognising the need for this (29 September 2020).  More.Inland Rail releases new procurement strategy
The Australian Rail Track Corporation (ARTC) has launched a new procurement and packaging plan to the industry for the Inland Rail project. ARTC has adopted a model that allows activation of the procurement process earlier and shorter procurement periods in a more collaborative industry environment (28 September 2020).  More...

Disability gets say on building accesses
The Department of Industry, Science, Energy and Resources is inviting feedback for a review of the Disability (Access to Premises – Building) Standards 2010 (Premises Standards) law that ensures people with a disability, family members, carers and friends, have equal access to public buildings (28 September 2020).  More...

MBA: Lending changes big boost for home ownership and economic recovery
Master Builders backs removing overly restrictive lending rules that act as a barrier to mortgage and small business finance. Access to finance, land titling and planning approvals can substantially delay building of new homes and measures are needed to remove these impediments and speed up processing of HomeBuilder applications (25 September 2020).  More...

Australia’s biggest home builders get even bigger
Even as the market slowed, Australia’s largest home building companies have increased their activity and revenues over the past year as they edged out smaller rivals and took a larger market share, the latest report shows (24 September 2020).  More...

Build back better: Why this must include improving existing building stock
The term Build Back Better was a concept coined to provide a framework by which countries can rebuild and implement robust risk mitigation against natural disasters. It has since been adopted by international institutions including the OECD, UN and WHO, with multinational companies and national governments (22 September 2020).  More...

Parkes Bypass and Commonwealth Avenue Bridge named Priority Projects in infrastructure-led recovery
Infrastructure Australia has added construction of Parkes Bypass on the New South Wales Newell Highway and the upgrade of Canberra’s Commonwealth Avenue Bridge, to the Infrastructure Priority List as Priority Projects to support the national infrastructure-led COVID-19 recovery (22 September 2020).  More...

CFMMEU and six officials hit with $201,500 in penalties over ACT entry breaches
The Federal Circuit Court in the ACT has penalised the CFMMEU $138,000 and six officials a further $63,500 following breaches of right of entry laws across three apartment project sites in Franklin, Harrison and Wright in 2013 and 2014 (21 September 2020).   More...

NSW

Job-creating, congestion-busting boost for Penrith's Dunheved Road
The Morrison Government has announced new funding of $63.5 million to upgrade Dunheved Road that will create jobs and bust congestion in Sydney’s west (02 October 2020).  More...

A sustainable foundation for the new Western Sydney International Airport
Millions of tonnes of sandstone taken from underneath Sydney’s WestConnex are being repurposed to build parts Western Sydney International (Nancy-Bird Walton) Airport, including construction of the runway (02 October 2020).  More...

Design contract awarded for Great Western Highway upgrade
The New South Wales Government has awarded the design and environmental assessment contract for the Medlow Bath section of the Great Western Highway upgrade. The contract was awarded to MRB Technical Services to refine the design and move the project closer to construction (30 September 2020).   More...

Driving toward an upgrade of new line road
Development and costings of a business case for a future upgrade of New Line Road in Sydney’s north-west is now underway (30 September 2020).  More...

CSIRO to cut emissions through renewable power
CSIRO, Australia’s national science agency, has signed a 10-year renewable power purchase agreement (PPA) that will halve its carbon emissions from electricity, a significant step towards achieving net-zero emissions across its operations (29 September 2020).   More...

Taxpayers risk 'missing out' on share of land value surge near new projects
A British rail expert who advised the NSW government says there's a "very short window in which to place" levies on developments and rezoned land (26 September 2020).  More...

SafeWork NSW focusing on falls from heights
SafeWork NSW announced inspectors targeting construction sites for their working at heights compliance. The focus of the inspectors will be on verifying compliance in relation to scaffolds, voids, roofs, edges and skylights (22 September 2020).  More...

Locals construct a new City Deal Sports Hub for Narellan
Construction has started on Macarthur’s sporting mecca that will provide additional netball courts, a synthetic athletics track, a full-size rugby league field, a criterium cycling track and a pedestrian and cycle path network. The jointly funded Narellan Sports Hub has been made possible under Western Sydney City Deal’s, Western Parkland City Liveability Program (22 September 2020).  More...

Audit finds Government paid $26.7 million more for Western Sydney Airport land than it was worth
(22 September  2020 ).  More...

Federal Government doubles its funding for major dam projects
As part of the Federal Government’s economic plan for a more secure and resilient Australia, its cash commitment will increase to $242 million for Dungowan Dam, 60km from Tamworth and $325 million for Wyangala Dam, 40km from Cowra (21 September 2020).  More...

Queensland

Palaszczuk Government backs projects to bring more than 600 jobs to regions
All the projects will create new jobs for regional Queensland. In total 251 direct full-time jobs will be created, another 90 during construction and 346 indirect full-time positions will need to be filled to make these projects come to life (02 October 2020).  More...

$42.5 million funding boost for Isis Highway upgrade
As a part of its economic recovery plan, the Queensland Government has locked in an additional $42.5 million for the Isis Highway between Bundaberg and the Bruce Highway.  Queensland Transport and Main Roads Minister, Mark Bailey, said the new investment would upgrade safety on the 40km stretch as part of a four-year program  (01 October 2020).  More...

$15 million committed for land for proposed Cairns University Hospital
The Palaszczuk Government will invest $15 million to acquire land for a new research precinct near Cairns Hospital to be built in partnership with James Cook University (01 October 2020).  More...

Backing Queensland’s Mining Sector
As part of the Queensland Government’s Unite and Recover Economic Recovery Strategy Treasurer Cameron Dick has committed a re-elected Palaszczuk Government to the delivery of a Queensland Resources Industry Development Plan (01 October 2020).   More... 

Queensland Accessible Transport Advisory Council established
Accessibility for Queensland transport and road projects will soon be advised by a newly established independent advisory group, the Queensland Accessible Transport Advisory Council (QATAC) (30 September 2020).   More...

Palaszczuk Gov rings in Bells Creek upgrade with $57 million roads bonanza
The Palaszczuk Government has announced shovels will hit the ground in coming weeks on the much-anticipated extension of Bells Creek Arterial Road to the Bruce Highway, with funding locked in as part of a $57 million congestion-busting, job-creating blitz for the southern Sunshine Coast (30 September 2020).  More...

New mine to bring 1000 CQ jobs
The $1 billion Olive Downs coal mine in central Queensland which will create 1000 local jobs has been given the final approvals which means construction of the mine can now start (29 September 2020). More...

Construction EOIs open for Walkerston Bypass
Expressions of interest (EOI) are now open for the construction of Queensland’s $150 million Walkerston Bypass. Deputy Prime Minister and Minister for Infrastructure, Transport and Regional Development, Michael McCormack, said the step marked important progress towards construction on the project on the Peak Downs Highway (24 September 2020).   More...

$163 million Deception Bay interchange upgrade contract awarded
The construction contract for the $163.3 million Bruce Highway upgrade at the Deception Bay Road Interchange has been awarded. The contract was awarded to BMD Constructions (23 September 2020).   More...

Builder sought for Walkerston Bypass
Construction companies are being invited to submit their interest in building the $150 million Walkerston Bypass (23 September 2020).  More...

Builders have the numbers that really count this QLD Election
With one in ten Queensland workers in building and construction, contributing $26 billion to the economy, the industry has the numbers the next state government simply can’t ignore (22 September 2020).  More...

Queensland to fund $755 million ‘second M1’
The Queensland Government will provide $755 million in funding to build the 16km stage one of the Coomera Connector – known as the ‘second M1’ – between Nerang and Coomera.  Funding for the second M1, which will support over 700 jobs, is the central to the Queensland Government’s $830 million Gold Coast roads infrastructure and jobs package (21 September 2020).   More...

Victoria

Protecting the public by holding practitioners to account
The Supreme Court of Victoria has ordered an injunction prohibiting Mr Simon Mattiske from working as a building surveyor or building inspector until July 2023 (02 October 2020).  More...

Major Works To Keep Freight Moving In Gippsland
The Victorian Government is supporting hundreds of jobs and investing in one of regional Victoria’s busiest freight lines, with upgrades to the Maryvale rail siding in Gippsland (02 October 2020).  More...

Fishermans Bend Development Board Reappointed
City planning expert Meredith Sussex will continue to lead the organisation charged with advancing Australia’s largest urban renewal precinct – Fishermans Bend (01 October 2020).  More...

VBA prosecutes man for leaving homeowners high and dry
The Victorian Building Authority (VBA) has prosecuted a man for arranging building work without insurance, in breach of Section 136(2) of the Building Act 1993, leaving the homeowners high and dry (30 September 2020).  More...

Melbourne building sites spring back to life
Building sites across Melbourne will spring back to life as COVID restrictions start to ease.
Large construction sites may have up to the greater of 85 percent of their baseline workforce or 15 workers on site – up from 25 percent of their baseline workforce under Stage 4 lockdowns (28 September 2020).  More...

VBA issues emergency order for pool fence non-compliance
The Victorian Building Authority (VBA) has issued an emergency order over the partial removal of a pool safety barrier at a property near Geelong (25 September 2020).  More...

Nickolaos Andriotis v Victorian Building Authority
The long-running case of Nickolaos Andriotis v Victorian Building Authority (VBA) has concluded with the Administrative Appeals Tribunal (AAT) striking out an application for review of a decision to refuse Mr Andriotis registration as a waterproofer in Victoria (24 September 2020).  More...

Bushfire-affected residents take next steps towards rebuilding
Families who lost their homes in the 2019-20 Victorian bushfires are taking the next steps in their rebuilding and recovery journey with the support of payments from the Victorian Bushfire Appeal and grants, modular housing, expert planning advice and extra assistance from the Victorian Government (24 September 2020).  More...

Published - articles, papers, reports

Rationalising regulation: helping the economy recover from the corona crisis
Gene Tunny, Ben Scott; Centre for Independent Studies: 23 September 2020
Australia’s anachronistic, inconsistent and excessive regulatory landscape is an area of immense potential for growth-enhancing economic reforms. This paper considers regulations across a wide range of sectors, including the construction, agricultural, pharmaceutical, retail trade, mining, hospitality and tourism, and childcare sectors. More...

Practice and courts

ACA roadmap 2020
The ACA’s roadmap, Sustaining the Infrastructure Industry is a detailed analysis prepared with BIS Oxford Economics (BISOE) which finds the industry is locked into a spiral of financial and productivity losses that links major project cost overruns and disputes to poorly constructed contracts that promote an adversarial industry culture which in turn negatively impacts the ability of the industry to attract and retain the people required to deliver the projects (01 October 2020).

ABAB September 2020 forum communique
The Advisory Board looks to influence digital adoption in construction projects through the various government stimulus packages (25 September 2020).   More...

Infrastructure priority list 2020
Updated 22 September 2020 - The Infrastructure Priority List is the authoritative guide to the priority infrastructure investments Australia needs to secure a sustainable and prosperous future.  More...
Additions:
Parkes Bypass evaluation summary
Commonwealth Avenue Bridge Upgrade evaluation summary

ABCB Consultations
WMTS-522:2020
For Public Comment Technical Specification for the WaterMark Certification Scheme WMTS-522:2020,incorporates amendments to allow an addition of similar products of alternate design to obtain certification. Closes 28 October 2020

Definition for building complexity
The defined term for 'Building complexity' has been developed in response to a decision of the Building Ministers’ Forum (BMF) that a definition be prepared regarding the design, construction and certification of complex buildings. Closes 01 November 2020

Publication of Infrastructure Australia Corporate Plan
The Infrastructure Australia Corporate Plan will be published by 30 September 2020. More information on the deferral is available at the Department of Finance website

Standards Australia: Drafts open for public comment
Standards Australia are seeking your feedback on a range of standards concerning the plumbing and drainage trade. On this page you will find a complete list of drafts currently  open for public comment from September to October 2020. For more information, please consult the Standards Australia Public Commenting Guide.  More...

AIBS: Code of Conduct – Victoria
In June 2020 the Victorian Building Authority published the final version of the Code of Conduct for Building Surveyors in Victoria, which will commence on 1 January 2021. We take this opportunity to alert all members to the need to review your working or business practices, particularly to ensure appropriate systems are in place here.

Protecting Critical Infrastructure and Systems of N​ational Significance:  Consultation Paper​​
As outlined in Australia’s Cyber Security Strategy 2020​, the Protecting Critical Infrastructure and Systems of National Significance reforms will enhance the security and resilience of Australia’s critical infrastructure through amendments to the Security of Critical Infrastructure Act 2018.For more information on reforms, see: ​Protecting ​Critical Infrastructure and Systems of National Significance. More...

GBCA: draft Green Star Homes Standard for consultation
Part of the Green Building Council of Australia’s Future Homes Strategy, the Standard is a key tool to help drive transformation in the residential sector to create a market for healthier, more resilient, energy efficient homes.
Consultation on the draft standard will run until 30 October 2020. A copy of the Green Star Homes Draft Standard and information on how to provide feedback is available here.

NABERS reminder:  Auditors, supervisors, and trainers panel announced
Congratulations to the new Panel Selection for NABERS Auditors, Supervisors, and Trainers, for October 2019-October 2022. Find the full list here.

2020 National Housing Research Program commences
Research is underway for the suite of projects funded by AHURI as part of the 2020 National Housing Research Program (NHRP). The research will be undertaken by collaborative teams from AHURI’s eight national university research partners. For more details of the 2020 NHRP projects please click here.   More...

NSW

NSW Resources Regulator: Practising certificate reminder
From 1 October 2020, a practising certificate must be held by anyone intending to exercise a statutory function at a mine that requires the certificate. Those requiring a practising certificate should apply by 4 September to ensure they receive the certificate by the deadline. The transitional arrangements that have allowed holders of certificates of competence to exercise statutory functions will end on 30 September 2020. There is no change for individuals who exercise the mechanical engineer or electrical engineer statutory functions. Click here for further information on practising certificate. The Certifiers Practice Standard is now available to assist certifiers in carrying out their statutory obligations. The guide makes clear the legal duties and processes required for trustworthy buildings in NSW and has been developed through consultation with over 25 industry experts. 

Developers must provide advance notice of building completion
Building developers must provide an expected date that they will apply for an occupation certificate. This notice must be provided at least 6 months in advance and no later than 12 months. If building developers do not provide notice, fines may apply and/or a prohibition order may be made that stops or delays an occupation certificate being issued. Notice can be given through the NSW Planning Portal or online via here. Reminder: A transitional period applies to developers with residential apartment buildings due for completion within the first six months of the Act starting 1 September 2020. In these cases, notice must be given within two weeks of the new legislation coming into effect.

Key compliance priorities updated
The Resources Regulator has published its July - December 2020 Compliance priorities document which sets out the key compliance priorities for the next six months. Between July and December this year the Regulator aims to complete four compliance priorities targeting respirable dust (revision to the exposure standards), progressive rehabilitation, subsidence management, and non-reporting of incidents.  More...

Practising certificates required from 1 October 2020
From 1 October 2020 this year, individuals will only be able to exercise a statutory function at a mine when they hold a practising certificate. The transitional arrangements that have allowed holders of certificates of competence to exercise statutory functions will end on 30 September 2020. Click here for further information on practising certificates, including how to apply. 

Four mining compliance priorities
The Resources Regulator has published its July - December 2020 Compliance priorities document which sets out the key compliance priorities for the next six months. Publishing this document serves to increase transparency, community and industry confidence in regulatory activities and increase levels of voluntary compliance. Between July and December this year the Regulator aims to complete four compliance priorities targeting:   Respirable dust (revision to the exposure standards); Progressive rehabilitation; Subsidence management and Non-reporting of incidents.

NSW Revenue: HomeBuilder program
HomeBuilder will provide eligible owner-occupiers (including first home buyers) with a grant of $25,000 to build a new home or substantially renovate an existing home where the contract is signed between 4 June 2020 and 31 December 2020. Construction must commence within three months of the contract date.  More...

Building Information Modelling (BIM) for WHS management
What is the best practice and implications of using BIM in WHS management?
Timeline of project; Project completion: Mid 2021.  More...

Queensland

Queensland mine safety inquiry postpones public hearings until 2021
The Queensland Coal Mining Board of Inquiry public hearings into the accident at Grosvenor Mine will be postponed until 2021, and its report released in two parts. More...

No 579 Building Industry Fairness (Security of Payment) and Other Legislation Amendment Regulation 2020 brings in new building laws
02 October 2020 - To advise tha tthe following changes commence on 1 October 2020. Amendments made to the Building Act 1975(Building Act) by the Building Industry Fairness (Security of Payment) and Other Legislation Amendment Act 2020 (BIFOLA Act); and Building Regulation 2006(Building Regulation) by the Building Industry Fairness (Security of Payment) and Other Legislation Amendment Regulation 2020 (BIFOLA Regulation).  More...

No 578  Building Industry Fairness (Security of Payment) and Other Legislation Amendment Regulation 2020
02 October 2020 - To advise that the Building Industry Fairness (Security of Payment) and Other Legislation Amendment Regulation 2020 (BIFOLA Regulation) has been approvedtosupportrecent changes to Queensland’s security of payment laws.  More...

Construction law: commencement dates for BIF Act amendments
The Building Industry Fairness (Security of Payment) and Other Legislation Amendment Act 2020 (BIFOLA) received assent on 23 July 2020, with a small number of provisions commencing that day or being given retrospective effect.
The Proclamation No. 1—Building Industry Fairness (Security of Payment) and Other Legislation Amendment Act 2020 (commencing certain provisions) and Proclamation: Building Industry Fairness (Security of Payment) Act 2017 were made on 27 August 2020 and proclaim commencement dates for much of the remainder of BIFOLA. A summary of changes introduced by BIFOLA and details of the various commencement dates are available on the Department of Housing and Public Works website.

QBCC: Air-conditioning condensate discharges
As the installation of split-system air-conditioning units throughout dwellings in Queensland becomes more prevalent, it is timely to reflect on what are considered acceptable practices when it comes to air-conditioner condensate discharges ( 21 September 2020).  More...

QBCC reminder: Extension to PI insurance cladding exemption
The Building (Professional Indemnity Insurance) Amendment Regulation 2020 commenced on 18 September 2020, giving effect to the extension of the external cladding exclusion. Now, certifiers can continue to obtain a licence to operate with PI insurance containing exclusions in relation to non-compliant external cladding until 30 June 2022.  More...

QBCC: Safer Buildings program enters final stage
The QBCC is administering the three-part Safer Buildings program to understand the extent of combustible cladding use in Queensland’s private buildings. The Safer Buildings program has advanced considerably with Part 3 of the combustible cladding checklist now underway. The deadline for building owners to finalise the Part 3 assessment is 3 May 2021. More...

Victoria

VBA Actions for the week ending 25 September 2020
30 September 2020 - A summary of VBA prosecutions, show cause notices, notices of decision, permit levy audits, proactive inspections and plumbing activities for the week.  More...

VBA Actions for the week ending 18 September 2020
23 September 2020 - A summary of VBA prosecutions, show cause notices, notices of decision, permit levy audits, proactive inspections and plumbing activities for the week.  More...

Code of Conduct for Building Surveyors
State Building Surveyor - The code clearly sets out examples of inappropriate conduct and establishes eight key areas of professional conduct that building surveyors in Victoria must follow. The building surveyor code commences on 1 January 2021.  More...

Have your say on the Professional Engineers Registration Scheme
The VBA is calling on engineers to help shape the future of the industry, with the first round of consultation on Victoria’s Professional Engineers Registration Scheme now open.  Public consultation gives engineers the opportunity to have their say on the scheme, which requires civil, structural, mechanical, electrical and fire safety engineers operating in Victoria to obtain registration from 1 July 2021. The first round of the public consultation is now open until 7 October 2020. – have your say

VBA reminder:  regulation of the routine servicing of fire protection equipment
If you carry out the routine servicing of fire equipment and want to continue doing this work, you need to obtain a restricted registration or licence in the relevant class from the VBA by 31 December 2020. To find out how to apply, see Apply for fire protection restricted classes. A random selection of completed routine service work will be audited, and non-compliance will be dealt with under the VBA’s Compliance and Enforcement Policy.

VBA: Carpenters selected for first stage of trades registration
Carpenters will be the first group of trades registered under Victoria’s recently developed trades registration framework. Provisional registration and licensing for carpenters is expected to commence in mid-2021. For more information and answers to frequently asked questions, refer to the Engage Victoria website. 

Cases

NSW

Dave King Building Services Pty Ltd v LeLievre; LeLievre v Dave King Building Services Pty Ltd [2020] NSWCATAP 204
APPEAL – expert opinion evidence – failure to refer to or comply strictly with Expert Witness Code – potential conflict of interest – discretion to reject the tender of an expert report filed and served late APPEAL – application for extension of time to lodge appeal – length of delay – prejudice to other party – prospects of success
Civil and Administrative Tribunal Act 2013; Home Building Act 1989

Jabbcorp (NSW) Pty Limited v Strathfield Golf Club [2020] NSWSC 1317
CONTRACT – Construction and interpretation – Consideration of the principles of contract interpretation – Whether application of principles of contractual interpretation modified by entire agreement clause – Relevance of surrounding circumstances - Clause 34.3 of the General Terms specifically states that Jabbcorp acknowledges that it bears the risks for all causes of delay whatsoever other than those specifically identified in the contract.

Acciona Infrastructure Australia Pty Ltd v Holcim (Australia) Pty Ltd [2020] NSWSC 1330
BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) (the Act) – The plaintiff design & construct contractor for the Sydney Light Rail Project entered into an agreement with the first defendant for the production and supply of ready mixed concrete – The first defendant made a payment claim on the plaintiff for ready mixed concrete allegedly supplied to the plaintiff under several purchase orders but not paid for – The plaintiff responded with a nil payment schedule – The claim went to adjudication and the second defendant made a determination for $2,953,035.57 in favour of the first defendant – The plaintiff challenged the jurisdiction of the second defendant on the grounds that the payment claim was invalid because it covered work under more than one contract – The plaintiff also relied on other grounds, including that the adjudicator had denied it procedural fairness, as vitiating the determination – HELD – The second defendant had no jurisdiction, the plaintiff had been denied procedural fairness, and the second defendant had not discharged the statutory task of satisfying herself that the work claimed for had been done and of its value

Bonett v Woollahra Municipal Council [2020] NSWLEC 1461
APPEAL – building information certificates – structures erected or altered without development consent – conciliation conference – agreement reached DEVELOPMENT APPLICATION – Use of lower ground level – minor alterations and additions – agreement between the parties – orders

Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Budvalt Pty Ltd; Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Harris [2020] NSWLEC 113
SENTENCE - four charges - plea of guilty by corporation to a single rolled-up charge of unlawful construction and use of a water supply work without holding an approval for that work - remaining charges against the corporation and the charge against the individual defendant to be dismissed - consideration of potential aggravating factors - whether offending conduct was carried out for financial gain - consideration of defendant’s subjective factors - extent of contrition and remorse - extent of likelihood of reoffending - other subjective factors favourable to defendant - need for general deterrence - consideration of other potentially relevant prosecutions - appropriate starting penalty at the top of the low range for such conduct - plea of guilty not entered at earliest opportunity but of more than minor utilitarian value - discount of 10% on starting penalty appropriate - fine of $252,000 imposed

Lindvest DM Pty Ltd v CPDM Pty Ltd [2020] NSWSC 1290
BUILDING AND CONSTRUCTION – contractual rights preserved by s 32 of the Building and Construction Industry Security of Payment Act 1999 (NSW) – party seeking final relief in relation to contractual rights while adjudication determination remains unsatisfied CIVIL PROCEDURE – abuse of process – whether it is an abuse of process for a party to commence and prosecute proceedings seeking to enforce contractual rights – where adjudication determination made under s 22 of the Act – where judgment has been entered against it under s 25 of the Act – where party does not seek to stay or set aside judgment under s 25(1) of the Act – where party does not pay amount of judgment debt into court

MTR Corporation (Sydney) NRT Pty Ltd v Thales Australia Ltd [2020] NSWCA 226
PRACTICE AND PROCEDURE – application for interlocutory restraining order pending hearing of appeal – judicial review proceedings – determination of separate question – review of determination by adjudicator under Building and Construction Industry Security of Payments Act 1999 (NSW) – appeal fixed for hearing in 5 weeks – concurrent unresolved claim under Australian Consumer Law (Cth), s 18

Mistrina Pty Ltd v Australian Consulting Engineers Pty Ltd [2020] NSWCA 223
CONTRACTS — Misleading conduct under statute — Misleading or deceptive conduct — Representations — Loss — Causation and remoteness CONTRACTS — Misleading conduct under statute — Remedies — Measure of damages — Where loss of opportunity

Byron v JBG Contractors (NSW) Pty Ltd [2020] NSWSC 1280
(1) Judgment for the first to fifth plaintiffs against the defendant for $26,099.
(2) Judgment for the seventh plaintiff against the defendant for $15,292.50.
TORTS – private nuisance – assessment of damages
This is a claim in nuisance for the drift of airborne hydrated lime from a building site onto residential properties.

Queensland

Gerhardt v Queensland Building and Construction Commission [2020] QCAT 370
PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – where the applicant sought review of a decision made by the respondent that the applicant had engaged in unsatisfactory conduct and professional misconduct – where the applicant applied to stay the decision and applied for non-publication orders and closed hearing – where the effect of the decision under review was that the respondent could apply to the Tribunal to commence disciplinary proceedings against the applicant – where the respondent could continue to act as a certifier – where the balance of convenience favoured the statutory oversight duties of the respondent continuing rather than being stayed - where the applicant bore the onus of showing why the usual principle of open justice should not apply – where the onus not satisfied
Building Act 1975 Qld ss 204(6), 112; Queensland Civil and Administrative Tribunal Act 2009 Qld ss 22, 66(2), 90(2) 

S.H.A. Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd [2020] QSC 307
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – ADJUDICATION OF PAYMENT CLAIMS – where the applicant and first respondent were parties to three related contracts for the construction of petrol stations – where the contracts were terminated and the first respondent commenced court proceedings and also pursued relief under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) – where the first respondent adopted inconsistent positions in each forum regarding whether the defects liability periods had been validly extended – where the applicant contends the adjudicator erred in deciding that the first respondent’s adjudication applications were not vexatious – whether the exercise of the adjudicator’s jurisdiction is conditioned on an adjudication application being not vexatious as a matter of fact, or on the adjudicator deciding that the application was not vexatious – whether the adjudicator misconceived his function by determining that the first respondent was entitled to claim for retention moneys as a component of its final payment claim – where the adjudicator recognised he was required to value the work by having regard to the estimated cost of rectifying certain defects, but neglected to value certain defects – whether such an error was a jurisdictional error or an accidental or erroneous omission within jurisdiction
Building Industry Fairness (Security of Payment) Act 2017 Qld s 71, s 72, s 75, s 84, s 88

KDR Gold Coast Pty Ltd v CPB Contractors Pty Ltd [2020] QSC 303
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – EVENT: WHAT CONSTITUTES – where the applicant sought an order for specific performance and a declaration in relation to a contractual dispute resolution process it had commenced involving the respondent – where the application was adjourned part-heard, by consent, pending the parties’ anticipated execution of an expert determination agreement on terms satisfactory to each of them – where the agreement was executed, obviating any need for the making of an order or declaration – where the respondent submits that the applicant was not successful and should be ordered to pay its costs – whether the applicant obtained the outcome sought 

Kline Industries International Pty Ltd v Queensland Building and Construction Commission [2020] QSC
ORDERS:1.Order 2 of the orders made 11 August 2020 is varied to read:“Pursuant to s 30(1)(a) of the JR Act, the decision of the  respondent  dated  18  July  2019  to  approve  a  claim   under   the   Queensland   Home   Warranty   Scheme in the sum of $106,636.69 and subsequently varied  to  $172,585.51 for  work  at  5 Golden  Grove  Blvd, Reedy Creek, Queensland, is set aside.”2. The   respondent   pay   the   applicant’s   costs   of   and   incidental  to  the  further  amended  application  for  review to be assessed on the indemnity basis

Corbet & Anor v Department of Transport and Main Roads [2020] QLC 34
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – AMENDMENT – ORIGINATING PROCESS, PLEADINGS ETC – where the applicants required leave to amend its statement of facts, matters and contentions – where the applicants made an application for leave to amend its statement of facts, matters and contentions and to file and rely on additional lay witness affidavits - where the respondent opposed the application in full – where the Court granted leave to amend the applicants’ statement of facts, matters and to file and rely on additional affidavits
The applicants say the orders are necessary to correct some assumptions made by the civil engineers which are false and to fill some gaps in the lay evidence.

EHome Construction Pty Ltd v GCB Constructions Pty Ltd [2020] QSC 291
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – ADJUDICATION OF PAYMENT CLAIMS – where a payment claim was made for work carried out up to termination of a construction contract – where the payment claim was made, and the adjudication determined, on the basis that the claim was a final payment claim – whether the payment claim was made within time – where the payment claim included an amount for retention monies – whether the payment claim was a valid payment claim – whether the adjudication decision was affected by jurisdictional error
Building Industry Fairness (Security of Payment) Act 2017 Qld s 75

Smith v Porter [2020] QCAT 354
ORDERS: Terence Owen Porterpay Rebecca-Jane Smiththe sum of $22,765.80 within 21 days of the date of this decision. 
Rebecca-Jane Smith made an application to the Tribunal about a domestic building dispute she has with Terence Owen Porter.  Ms Smith claims the sum of $22,180.00 and costs associated with this debt for building works contracted between the parties under a building contract dated 5 August 2008.

Spence v Queensland Building and Construction Commission (No. 2) [2020] QCAT 358
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS GENERAL MATTERS – where applicant substantially succeeded in application for review of decision not to give Directions to Rectify – where interests of justice so compelling as to displace the usual rule that parties bear their own costs
Queensland Civil and Administrative Tribunal Act 2009 Qld ss 100, 102, 107

Stevens v Queensland Building and Construction Commission [2020] QCAT 355
PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – where builder fraudulently claimed to hold a building licence – whether contractual relations formed – whether residential construction work – whether fixed price contract. Queensland Building and Construction Commission Act 1991 Qld s 69(2)(a)(iii); Queensland Building and Construction Commission Regulation 2003 Qld ss 10, 11, 12

Number One Quality Homes Pty Ltd v Murphy & Anor [2020] QCAT 353
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT – GENERALLY – where respondents seek determination of a preliminary issue – whether utility, economy and fairness to the parties of a separate question is beyond issue – where factors tell against the making of an order for the determination of a preliminary issue – where it is not just and convenient to determine the preliminary issue
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – GENERALLY – where the parties entered into a contract for the construction of a dwelling - where applicant seeks payment of an amount owing under the contract- where the respondents counterclaim damages for defective work and misleading and deceptive conduct
Queensland Building and Construction Commission Act 1991 Qld ss 3(a)(ii), 3(d), 67AZN, sch 1B, 7(1)(b), 15, 18, 35, 37, 38, 44, 46(1) 

Victoria

1155 Nepean Highway Pty Ltd v Promax Buildings Pty Ltd [2020] VSCA 253
ADMINISTRATIVE LAW – Judicial review – Adjudicator’s determination under Building and Construction Industry Security of Payment Act 2002 – Applicant failed to provide payment schedule in response to builder’s payment claim and barred from providing adjudication response – Whether adjudicator impermissibly drew adverse inference that applicant incapable of credibly challenging payment claim – Permissible to draw adverse inference from failure to provide payment schedule but not absence of adjudication response – Any inference drawn permissible – Whether adjudicator overlooked relevant evidence – Evidence not before adjudicator and irrelevant to review of determination – Whether adjudicator failed to conduct independent assessment of claim – Adjudicator’s reasons brief and reliant on builder’s trade summary – Brevity not indicative of failure to independently assess – Reliance on trade summary appropriate given contractual significance – Whether adjudicator impermissibly failed to consider contractually incorporated plans – Adjudicator required to consider provisions of contract but not incorporated documents – Building and Construction Industry Security of Payment Act 2002 ss 11, 14, 15(4), 18, 21(2A), 22, 23.

Beveridge v Integrated Construction Management Pty Ltd (Building and Property) [2020] VCAT 1073
Who was the builder? Is a contractor liable for rectifying defects, builder deregistered, s3, 5 & 8 Domestic Building Contracts Act, 1995. Contractor not liable for rectification
This is an application by John Beveridge (the Applicant) for the sum of $18,600.00 (including $217.70 filing fees and $200 for photocopying) for damages from Integrated Construction Management Pty Ltd (the Respondent).

SG Investment Group Pty Ltd (as trustee for SG Unit Trust t/as BSL Group (ACN 622 338 069) [2020] VCC 1499
Building contract – payment claims – whether payment claim sufficiently stated that it was made under the Act. Building and Construction Industry Security of Payment Act 2002 (Vic) 14(2)(e)

Legislation

National Greenhouse and Energy Reporting (Safeguard Mechanism) Amendment (Additional Prescribed Production Variables) Rule 2020
02/010/2020 - The instrument amends the National Greenhouse and Energy Reporting (Safeguard Mechanism) Rule 2015 to provide for additional production variables and updates global warming potentials.

NSW

Environmental Planning Instruments
Local Environmental Plan Amendment (Major Infrastructure Corridors—Maps) 2020 (2020-596) — published LW 2 October 2020
State Environmental Planning Policy (Infrastructure) Amendment (Sydney Metro West Interim Corridor) 2020 (2020-591) — published LW 2 October 2020
State Environmental Planning Policy (Western Sydney Aerotropolis) Amendment (Commencement) 2020 (2020-586) — published LW 30 September 2020

Bills introduced  Non-Government – 23 September 2020
Restart NSW Fund Amendment (Rural and Regional Infrastructure Funding) Bill 2020

Queensland

Subordinate legislation as made – 05 October 2020
No 237 Economic Development (Boggo Road Cross River Rail PDA) Amendment Regulation 2020
No 241 Building Industry Fairness (Security of Payment) and Other Legislation Amendment Regulation 2020
No 242 Building Industry Fairness (Security of Payment) (Transitional) Regulation 2020

Subordinate legislation as made – 25 September 2020
No 222 Manufactured Homes (Residential Parks) (COVID-19 Emergency Response) Regulation 2020
No 223 Queensland Building and Construction Commission and Other Legislation (Fire Protection Licensing) Amendment Regulation 2020

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 newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

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