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Inside track: Construction & Infrastructure

07 September 2020

#Construction & Infrastructure

Inside track: Construction & Infrastructure

In the media

Top developer calls for post-COVID building code for wellness
One of Australia’s top developers is calling on the residential development industry and government to rethink building design standards so that they better foster physical and mental well-being in the post-COVID-19 world (02 September 2020).  More...

Pandemic proofing city buildings: Using natural ventilation to reduce the spread of airborne viruses
In Australia, our practice has been a leader in designing contemporary towers comprising natural or mixed-mode ventilation systems – a feature that not only improves air flow and quality but significantly reduces a building’s carbon footprint (01 September 2020).  More...

Building approvals increase 12 per cent in July
The HomeBuilder program has been very positive for the detached house sector but the impact of this program is yet to be seen in ABS approval data. The lift in detached house approvals in July is more likely to reflect building application lodgement and processing returning to normal after the shutdown,” stated HIA Chief Economist (01 September 2020).  More...

Victoria

Extension for Victorians seeking cladding cost claims
Victorians will be given an extra two years to pursue legal action against builders responsible for installing combustible cladding on their homes under legislation being introduced to the Victorian Parliament today (03 September 2020).  More...

Metro Tunnel continues to break new ground and support jobs
The first of the Metro Tunnel’s tunnel boring machines (TBMs) has broken through at Parkville Station, as work continues on the biggest public transport project in Victoria’s history (28 August 2020).  More...

New South Wales

New South Wales will stop dodgy apartments from opening
Set to commence on Tuesday, the Residential Apartments Buildings (Compliance and Enforcement Powers) Act 2020 will give the New South Wales Building Commissioner new powers to act to stop dodgy construction (02 September 2020).  More...

Queensland

Final projects announced through $134.5 million government infrastructure package
North and north-west Queensland communities will benefit from more than $10 million to repair, rebuild and reinforce infrastructure damaged by the 2019 monsoon trough. The 12 projects represent the final tranche to be approved through the Australian and Queensland governments’ $134.5 million infrastructure package (03 September 2020).  More...

Queensland solar proposal could be a ray of light for those struggling, supporters say
Thousands of jobs could be created and social housing tenants could see energy bills slashed if a proposal to install solar panels on public dwellings is approved by the Queensland Government (02 September 2020).  More...

Published – articles, papers, reports

Quarterly Report by the Commonwealth Ombudsman
Quarterly Report by the Commonwealth Ombudsman under s 65(6) of the Building and Construction Industry (Improving Productivity) Act 2016 for the period 1 April to 30 June 2020.  More...

Australian Bureau of Statistics
02/09/2020 Australian National Accounts: National Income, Expenditure and Product, Jun 2020 (cat no. 5206.0)
01/09/2020 Balance of Payments and International Investment Position, Australia, Jun 2020 (cat no. 5302.0)
01/09/2020 Building Approvals, Australia, Jul 2020 (cat no. 8731.0)

Cases

Victoria

Citi-Con (Vic) Pty Ltd v Trojan Built Pty Ltd [2020] VSC 557
BUILDING CONTRACTS – Whether Adjudicator erred in determining the reference date applicable to the Payment Claim – Whether Payment Claim was served within prescribed time under the Act – Whether Payment Claim is a final payment claim – Whether Adjudicator failed to perform statutory function under Act – Building and Construction Industry Security of Payment Act 2002 (Vic) ss 9, 10B, 13, 14, 22, 23 and 48 – Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd [2016] HCA 52; (2016) 260 CLR 340, applied – Shape Australia Pty Ltd v The Nuance Group Pty Ltd [2018] VSC 808, applied – Commercial & Industrial Construction Group Pty Ltd v King Construction Group Pty Ltd [2015] VSC 426, applied – Ian Street Developer Pty Ltd v Arrow International Pty Ltd (2018) 54 VR 721, applied – Protectavale Pty Ltd v K2K Pty Ltd [2008] FCA 1248, applied – Hickory Developments Pty Ltd v Schiavello (Vic) Pty Ltd [2009] VSC 156; (2009) 26 VR 112, applied – Cat Protection Society v Arvio [2018] VSC 757, applied – Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] HCA 70; (2001) 210 CLR 181, applied – Wilson v Anderson (2002) 213 CLR 401, applied – Mackie Pty Ltd v Counahan [2013] VSC 694, applied – Levi Pty Ltd v Z&H Building Development Pty Ltd [2019] VSC 633, applied – SSC Plenty Road Pty Ltd v Construction Engineering (Aust) Pty Ltd [2015] VSC 631, applied.

Spirito Development Pty Ltd v Sinjen Group Pty Ltd [2020] VCC 1368
CONTRACTS Building contract – payment claim – whether reference date available for payment claim – whether payment claim served prior to reference date valid – whether payment claims validly withdrawn – whether multiple invoices sent by separate emails can constitute one payment claim – whether payment claim served by email after business hours can be taken to be served on the next business day – whether failure to provide a statement confirming payment to employees invalidates payment claim – whether retention moneys can be withheld in absence of payment schedule
Building and Construction Industry Security of Payment Act 2002 (Vic) ss3, 4, 7, 9(1),10B, 12, 14(2), 15, 16(2), 16(4), 17(2), 47, 48, 50; Civil Procedure Act 2010 (Vic) s61, 63.

SG Investment Group Pty Ltd v K&K Industries Pty Ltd [2020] VCC 1341
CONTRACTS - Building contract – payment claim – whether plaintiff accurately identified the construction contract – whether payment claims identified the construction work to which they related – whether payment claims invalid because not calculated in accordance with the construction contract
Building and Construction Industry Security of Payment Act 2002 (Vic) ss 4, 9, 10A, 10B, 12, 14(2), 15, 16(2), 17(2) and 48; Civil Procedure Act 2010 (Vic) s61

Cool Logic Pty Ltd v Citi-Con (Vic) Pty Ltd [2020] VCC 1261
CONTRACTS - Building contracts – payment claims – grounds for resisting payment claims when no payment schedule is provided – whether payment claims had a valid reference date – whether payment claim validly withdrawn – whether payment claim served out of time – whether payment claim included excluded amounts – whether prohibition on excluded amounts extends to payment schedules – whether work comprising claimable amounts must be completed when payment claim served – principles of statutory construction – whether payment claim failed to provide mandatory documents – whether payment claim for retention moneys is valid
Building and Construction Industry Security of Payment Act 2002 (Vic) ss4, 9, 10, 10A, 10B, 12, 14, 15, 16(2), 17(2); Building and Construction Industry Security of Payment Act 1999 (NSW) ss13

New South Wales

Owners of Strata Plan No 30791 v Southern Cross Constructions (ACT) Pty Ltd (in liquidation) [2020] NSWCA 199
BUILDING AND CONSTRUCTION — Negligence — Miscellaneous forms of negligent conduct — Right of support — Application of Conveyancing Act 1919 (NSW) s 177 and common law — Whether loss of support caused damage to adjoining property.
TORTS — Negligence — Essentials of action for negligence — Whether there was a failure to take reasonable care — Whether any failure caused damage — Assessment of expert evidence.
TORTS — Negligence — Proof of negligence — Res ipsa loquitur.

MTR Corporation (Sydney) NRT Pty Ltd v Thales Australia Ltd [2020] NSWSC 1147
BUILDING AND CONSTRUCTION – determination under the Building and Construction Industry Security of Payment Act 1999 – whether adjudicator acted beyond jurisdiction – whether adjudicator denied plaintiffs procedural fairness by deciding claim in favour of first defendant on basis not advanced by either party – whether adjudicator failed to consider relevant matters. Building and Construction Industry Security of Payment Act 1999 (NSW) 

Valmont Interiors Pty Limited v Giorgio Armani Australia Pty Limited [2020] NSWDC 395
BUILDING AND CONSTRUCTION – Construction contract – Completion – delay damages – scope of work – defects. Civil Procedure Act 2005, s 90(2)(b); Airports (Building Control) Regulations 1966 (Cth), reg 2.03(4)

Queensland

Glencore Coal Queensland Pty Limited v Aurizon Network Pty Ltd & Ors; Yarrabee Coal Company Pty Ltd & Ors v Aurizon Network Pty Ltd & Ors [2020] QCA 182
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – where the first respondent to each appeal operates a rail network for shipping coal from mines to several port facilities in Queensland – where the appellants are coal mining companies which use the network – where each of the appellants contracted with the first respondent for the first respondent to upgrade the capacity of the network to facilitate the transport of coal to the Wiggins Island Coal Export Terminal (WICET) – where one of the appellants gave a notice, purportedly under cl 6.1(c) of the deed, that would have reduced its liability to pay certain fees to nil, and required the other parties to pay for its share – where the other appellants served notices the next day, which would have put all the liability for the fees, which were estimated to total $480 million, onto one company – where the first respondent argued that upon the proper construction of the deeds or as a result of an implied term, a notice could not be given under cl 6.1(c) unless it was given because the Customer would not be using that part of the rail network in order to transport its coal to WICET – whether, on the correct construction of the text or as a result of an implied term, the notices were valid
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – where the first respondent argued that the appellants could give a notice under cl 6.1(c) only if acting in good faith, and none of the appellants had done so – whether there was an implied term of good faith, and if so, whether it was breached
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – where the deeds provided that a notice under cl 6.1(c) could be given prior to the date on which a certain milestone in the development of WICET, measured by the capacity of its facilities, was reached – whether the capacity of WICET had reached that milestone before the date on which the notices were given 

Adani Abbot Point Terminal Pty Ltd v Lake Vermont Resources Pty Ltd & Ors [2020] QSC 260
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – UNCONSCIONABLE CONDUCT – WHAT CONSTITUTES – where the applicant is the owner, and the respondents are users, of a coal terminal – where user agreements exist between the applicant and the respondents –– where the respondents argue that as the result of a series of agreements the applicant in effect received payment of a previous user’s future obligations while requiring the remaining users to pay the equivalent of those obligations as charges under the user agreements – where the applicant was in a monopolistic position – where market conditions put the respondents in a vulnerable position – where applicant was acting in the interests of related corporation as well as its own interests – where there were alternative courses of action available to the applicant – whether applicant went beyond its legitimate commercial interests – pricing of monopoly asset – situational disadvantage and vulnerability – where there was no breach of contract – dishonest behaviour and want of good faith – whether the applicant’s conduct was in all the circumstances unconscionable in contravention of s 21(1) of the Australian Consumer Law

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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