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Inside track: Construction & Infrastructure

09 December 2019

#Construction & Infrastructure

Inside track: Construction & Infrastructure

In the media

CoreLogic ‘Cordell’ Construction Monthly Report – October, 2019
Construction activity data collated by Cordell (a division of CoreLogic) showed that the total number and value of new projects announced (but not yet commenced), for October increased by 5 per cent with 1,918 new projects added to the pipeline (29 November 2019).  More... 

Delivering opportunity and growth for Northern Australia
More than $5 billion of Commonwealth Government funding is creating more jobs, providing better infrastructure and unleashing new enterprise in Northern Australia, with the Liberal National Government investing record amounts in infrastructure, water and job-creating projects across three states (27 November 2019).  More... 

A lot of noise, so what was achieved?
When it comes to efforts to introduce statutory registration for engineers, there has been a lot of activity in 2019, especially in NSW and Victoria (27 November 2019).  More... 

Engineers sign up to mitigate impact on climate change
Thousands of professional engineers, engineering students and hundreds of organisations are expected to sign a declaration committing to steering the profession towards reducing carbon emissions in Australia (27 November 2019).  More... 

HIA welcomes Government commitment to reducing red tape
HIA welcomes the Government’s announcement that as part of its move to bring forward billions of dollars in infrastructure, it will also be cutting red tape that hinders the progress of projects that are vital to Australian housing (22 November 2019).   More... 

$3.8 billion infrastructure splash is Government's response to 'uncertain' economic conditions
Prime Minister Scott Morrison is ramping up infrastructure investment in a bid to boost Australia's flagging economy (20 November 2019).  More... 

New South Wales

Major planning reform to drive jobs and investment in New South Wales
Public Spaces Minister Rob Stokes said a series of reforms would be introduced to the planning system over the coming months to slash assessment timeframes, reduce red tape and fast-track projects in high growth areas (27 November 2019).  More... 

Fair Trading NSW:  Proposed ban on the use of certain types of aluminium composite panels
Notice of her intention to impose building product use ban for aluminium composite panels with a core comprised of greater than 30% polyethylene by mass  in any external cladding, external wall, external insulation, façade or rendered finish in certain multi storey buildings, subject to specific exceptions (28 November 2019).  More... 

Emergency water infrastructure for regional New South Wales
The NSW Government will provide funding for 30 urgent water infrastructure projects in drought-affected communities (26 November 2019).  More...

Road and rail investment to boost New South Wales
The New South Wales economy will be boosted by a $570 million infrastructure package to bust congestion and make regional roads safer (21 November 2019).  More... 

Assistance for bushfire disaster cleanup
Premier Gladys Berejiklian, Deputy Premier and Minister for Regional NSW John Barilaro and Minister for Police and Emergency Services David Elliott have committed up to $25 million to facilitate the cleanup of homes and properties damaged and destroyed by the recent fires (19 November 2019).  More... 

Queensland

Paradise Dam inquiry called as reports released
An independent inquiry will be held into Paradise Dam as technical reports detail structural and stability issues with the dam (29 November 2019).  More...

Ground-breaking Inland Rail agreement lays the track for Queensland's future
The most significant freight infrastructure project in the nation’s history has taken a major step forward with the Australian and Queensland Governments signing a ground-breaking Bilateral Agreement to deliver Inland Rail (29 November 2019).  More... 

$1 billion M1 Varsity Lakes to Tugun upgrade to shine bright like a diamond
Gold Coasters have been given their first look at plans for the city’s $1 billion M1 Varsity Lakes to Tugun upgrade set to get underway next year (28 November 2019).  More... 

Palaszczuk Government delivers confidence for Queensland tradies and business
Queensland tradies are set to secure the strongest payment protections in the nation’s history as the Palaszczuk Government announces its response to two independent reports into its building industry fairness reforms (28 November 2019).  More... 

Palaszczuk Government explores new pipeline for parched communities
Ms Palaszczuk said a potential new pipeline to deliver Wivenhoe Dam water to Warwick would be among options considered as part of a $1 million feasibility study into contingency water supply options, to be completed in consultation with local councils (26 November 2019).  More... 

$1.9 billion road and rail boost for Queensland economy
A $1.9 billion road and rail package will boost the Queensland economy and drive more jobs, while getting people home sooner and safer (20 November 2019).   More... 

Making Gold Coast light rail stage 3A a reality
The Australian Government has committed a further $157 million to make Stage 3A of the Gold Coast Light Rail a reality (20 November 2019).   More... 

Additional funding for congestion-busting M1 Exit Upgrades
The Federal Liberal and Nationals Government has put commuter safety and reducing congestion at the forefront of its infrastructure agenda by announcing it will contribute an additional $46.3 million to upgrade the M1 Pacific Motorway (20 November 2019).  More... 

Huge Federal funding deal set to fast track major infrastructure projects in Queensland
A raft of major infrastructure projects across Queensland is set to go ahead, after a surprise deal was reached between the state and federal governments (20 November 2019).   More... 

Victoria

HIA:  Workplace manslaughter bill passed
The Victorian Government has passed the Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Bill 2019. The Bill inserts a new workplace manslaughter offence into the Occupational Health and Safety Act 2004 (27 November 2019).  More... 

$1 billion road boost for Victorian economy
A federal and state infrastructure package will boost the Victorian economy with more than $1 billion in project funding aimed at busting congestion and increasing road safety (22 November 2019).  More... 

Published 

ABCC Industry Update November-December 2019 edition
This issue includes; ABCC findings from zero drugs and alcohol on building sites campaign; Securing payments for subcontractors and Wages and entitlements - proper record keeping (26 November 2019)  Industry Update November-December 2019 edition

BDAV: Building defects affecting residents
A recent study lead by Deakin University and funded by the PICA Group sought to identify types of building defects and how they impacted on the building and its occupants. Of the 3227 defects analysed, defects relating to building fabric and cladding (40 per cent) were the most prevalent, followed by fire protection (13 per cent), waterproofing (11.5 per cent), roof and rainwater disposal (8.5 per cent), and then structural issues (7 per cent) (20 November 2019). More... 

Practice and courts

CASA: Funding for regional airports
Regional airports can start the process of seeking new funds for safety upgrades, with guidelines are now available to give airport owners and operators more information on their eligibility for the $100 million program ( including safer runways, taxiways, fencing). Round one of the program closed on 12 December 2019. Find out more about the airport funding.

New South Wales

NSW Fair Trading: Intended ban notice: aluminium composite panels
Any person or corporation who does not comply with the requirements of the ban can be subject to fines. A corporation found to be using a banned building product can be fined up to $1.1 million and individuals can be fined up to $220,000. If you have any enquiries about the proposed building product use ban please contact NSW Fair Trading online (28 November 2019).  More... 

Queensland

MBA Qld: Additional annual reporting for Category 4-7 contractors
The QBCC recently communicated with all Category 4 – 7 licence holders requesting an additional annual financial report. The additional report you submit must be based on FY18/19 financial data and  must be submitted by 31 December 2019 (29 November 2019).  More... 

Victoria

Planning – Approvals – 26 November 2019
VC158 changes the VPP and all planning schemes in Victoria by introducing a new particular provision to exempt combustible cladding rectification on buildings subject to an emergency order, building notice or building order under Part 8 of the Building Act 1993.

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. A paper exploring possible options will be released for public consultation in the coming weeks.
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 (22 November 2019). 

Cases

New South Wales 

Hanson Construction Materials Pty Ltd v Brolton Group Pty Limited [2019] NSWSC 1641
BUILDING AND CONSTRUCTION – adjudication determination under Building and Construction Industry Security of Payment Act 1999 (NSW) – whether determination void – jurisdictional error – whether denial of natural justice – whether failure by adjudicator to provide parties with opportunity to make submissions with respect to choice of reference date relevant to payment claim – whether open to claimant to support determination with reference to different reference date than that relied on by adjudicator – whether open to adjudicator to justify determination on basis that it was a determination of a payment claim by reference to other reference date BUILDING AND CONSTRUCTION – adjudication determination under Building and Construction Industry Security of Payment Act 1999 (NSW) –whether determination void – whether payment claim referrable to work completed after relevant reference date – construction of sections 8 and 13 of the legislation – Southern Han Breakfast Point Pty Ltd (In Liq) v Lewence Construction Pty Ltd and other authorities considered – whether payment claim may only relate to work done before reference date in respect of payment claim was served BUILDING AND CONSTRUCTION – adjudication determination under Building and Construction Industry Security of Payment Act 1999 (NSW) – whether to grant conditional relief – power of court to sever part of determination which is within jurisdiction from that part which is not – recent authority

Visual Building Construction Pty Ltd v Armitstead (No 2) [2019] NSWCA 280
Appeal dismissed with costs
CONTRACTS – termination – whether building contract validly terminated – whether in the circumstances, 10 business days notice giving opportunity to remedy default needed to be given prior to termination – alternative bases for termination – Shepherd v Felt & Textiles of Australia Ltd the Statutory Warranty Provisions of the Home Building Act in that the work was not done in accordance with done in accordance with and or complied with the Home Building Act or other Law
Environmental Planning and Assessment Act 1979 (NSW) ss 109F(1A), 121B, 149E(1)(a); Local Government Act 1993 (NSW)

Omega Plumbing Pty Ltd v Harbour Radio Pty Ltd t/as 2GB and 2GB 873 [2019] NSWSC 1576
The parties are to bring in short minutes to reflect these reasons and to define the terms of the interlocutory injunction
TORTS – injurious falsehood – application for interlocutory injunction to prevent further publications pending final hearing where the first defendant is a media company and the second defendant is an employee and radio broadcaster for the first defendant – where the second defendant made a number of representations about the plaintiff’s business on his radio show – representations were also made in articles published on the first defendant’s website – whether there is a prima facie case that the representations were made maliciously – where the defendants made allegations about the plaintiff with reckless indifference to the truth of the allegations or without any belief in the truth of the allegations – absence of evidence to support a number of statements made by the defendants – prima facie case made out – balance of convenience strongly favours the plaintiff

Queensland

Samios Plumbing Pty Ltd v John R Keith (QLD) Pty Ltd [2019] QDC 237
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – FORMATION OF CONTRACTUAL RELATIONS – OFFER – GENERALLY – where a credit application was sent to the plaintiff by the defendant, enclosing the defendant’s terms and conditions – whether the credit application constituted an offer
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – FORMATION OF CONTRACTUAL RELATIONS – ACCEPTANCE – GENERALLY – LEGAL PRINCIPLES – where plaintiff approved the defendant’s credit application – whether approval letter constituted acceptance of an offer and acceptance of the defendant’s terms and conditions
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – FORMATION OF CONTRACTUAL RELATIONS – ACCEPTANCE ADDING TO OR VARYING TERMS OF OFFER - COUNTER-OFFER – where the plaintiff sent letter to the defendant approving the credit application – where the letter reiterated some of the plaintiff’s payment terms – whether the letter amounted to counter-offer rather than acceptance
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSIDERATION – FAILURE OF CONSIDERATION – whether the credit application provided for consideration from either party to the other 

Wagner & Ors v Nine Network Australia & Ors [2019] QSC 284
DEFAMATION – DAMAGES – GENERAL DAMAGES – ASSESSMENT – IN GENERAL – where a jury found that a 60 Minutes program imputed that the plaintiffs caused a man-made disaster and that the disaster was the result of their failing to take steps that they should have to prevent a quarry wall on property they owned from collapsing, causing a devastating wall of water to destroy Grantham and kill twelve people – where the jury found that the sixth defendant, an experienced journalist who featured in the program, conveyed a similar imputation by his words – where the program also was found to impute that the plaintiffs sought to conceal the truth about the role their quarry played in the flood and that the plaintiffs disgracefully refused to answer to the public for their failure to take steps to prevent the quarry wall they owned from collapsing and causing the flood – what award of damages should be given to each plaintiff against the Nine Network defendants and against Mr Cater
DEFAMATION – DAMAGES – GENERAL DAMAGES - ASSESSMENT – SPECIAL MATTERS – AGGRAVATION – CONDUCT OF THE PARTIES – where the plaintiffs claim aggravated compensatory damages on the basis that the defendants engaged in conduct that was improper, unjustifiable or lacking in bona fides – where the defendants made inadequate attempts to ascertain the truth – where the defendants possessed information which contradicted allegations in the program but did not report it – where the defendants made belated attempts to seek a response from the plaintiffs and did not include in the program any part of a statement issued by the plaintiffs – where, despite the findings of a Commission of Inquiry which in October 2015 discredited the allegations in the program, the defendants pleaded a defence of justification for seven months, withdrawing it in November 2018 – where the defendants have failed to broadcast a correction, retraction or apology in the years following the program – whether the defendants engaged in conduct which was improper, unjustifiable or lacking in bona fides – whether there should be awards of aggravated compensatory damages against the Nine Network defendants and against Mr Cater
DEFAMATION – DAMAGES – GENERAL DAMAGES – ASSESSMENT – SPECIAL MATTERS – MITIGATION – where in September 2018 the plaintiffs received large awards of damages for numerous defamations, including substantially similar imputations, broadcast on a radio show – whether the previous awards and any public vindication achieved by reporting that decision should mitigate damages, and the extent of any such mitigation

Pivovarova v Michelsen [2019] QCA 256
ADMINISTRATIVE LAW – STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS – where applicant seeks leave to appeal a decision of the appeal tribunal of the Queensland Civil and Administrative Tribunal – where s 150(3)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) provides that an appeal may be made “only on a question of law” – whether the grounds of the proposed appeal raised by the applicant are limited to questions of law – whether the Court of Appeal lacks jurisdiction to hear and determine the proposed appeal
Administrative Appeals Tribunal Act 1975 Cth s 44; Domestic Building Contracts Act 2000 Qld s 67
Liquor Act 1992 Qld s 35; Queensland Civil and Administrative Tribunal Act 2009 Qld s 142, s 149, s 150, s 153
Uniform Civil Procedure Rules 1999 Qld r 765(1)

Sanrus Pty Ltd & Ors v Monto Coal 2 Pty Ltd & Ors (No 9) [2019] QSC 278
PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – OTHER MATTERS – where the plaintiffs applied for directions so as to extend the time until the delivery of written submissions – where the defendants opposed the application – where the court was required to balance the prejudice which would be visited upon the parties and the administration of justice – whether leave should be granted

Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors (No 21) [2019] QLC 41
CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – AMENDMENT – ORIGINATING PROCESS, PLEADINGS ETC – where the respondent sought to amend its defence – whether leave was required – where the Court found leave was not required – where the Court held that, if leave was required, it would not have adjourned the application and would have granted leave
CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PROCEDURAL ASPECTS OF EVIDENCE – EXPERT REPORTS AND EXPERT EVIDENCE – OTHER MATTERS – where the respondent gave additional instructions to their expert – where leave was required to do so – where the Court made orders to allow the applicant to provide further instructions to its expert on the same matter
Mineral Resources Act 1989 Qld s 334ZJ(4), s 334ZJ(5), s 334ZJ(8)(k); Uniform Civil Procedure Rules 1999 Qld r 378 

Victoria

Nantong Construction (Australia) Pty Ltd (ACN 154 528 751) v M & S Sambor Pty Ltd (ACN 004 599 151) [2019] VSC 774
INJUNCTION - Urgent interlocutory injunction – Serious question to be tried – Balance of convenience – Damages as an adequate remedy.
LICENSE - License for agreement to use land – Revocation of license to access land –Circumstances in which common law regards a licence as irrevocable.
ESTOPPEL - Equitable estoppel – Circumstances when a licence becomes irrevocable – Considered Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605.

Key Infrastructure Australia Pty Ltd v Bensons Property Group Pty Ltd (No 2) [2019] VSC 763
COSTS – Plaintiff awarded nominal damages of $100 for breach of contract – Counterclaim dismissed – Offer of compromise in ‘walk-away’ terms by plaintiff – Rule 26.08(2) of the Supreme Court (General Civil Procedure Rules) 2005 (Vic) – Whether good reason to depart from the usual order set out in the rule – Plaintiff’s entitlement to costs under the rule reduced. 

Top Cat Installations Pty Ltd v Southstar Homes Pty Ltd [2019] VCC 1878
CONTRACTS - Building contract – payment claim – whether payment claim included work under more than one construction contract – whether payment claim sufficiently identified the construction work to which it related – severance of part of payment claim – whether variations claimed were excluded amounts
Building and Construction Industry Security of Payment Act 2002 (Vic) ss4, 10A, 14(2) and 16

Argyrou v Victorian Building Authority [2019] VSC 721
INJUNCTION – Application for interlocutory injunction to restrain defendant conducting disciplinary proceedings – Serious issue to be tried as to whether defendant has jurisdiction to undertake disciplinary proceeding – Application brought at early stage of disciplinary proceeding – Plaintiff entitled to exercise rights of internal review and appeal to Victorian Civil and Administrative Tribunal if dissatisfied with outcome of disciplinary proceeding – Application for injunction refused – Building Industry Act 1993 (Vic) ss 179, 182B, 182E, 185, 186, 187 sch 8 cls 3, 4 – Interpretation of Legislation Act 1984 (Vic) s 14(2) – Victorian Civil and Administrative Tribunal Act 1998 ss 51, 148, 187 – Supreme Court (General Civil Procedure) Rules 2015 o 56. 

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 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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