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Inside track: Construction & Infrastructure

09 October 2019

#Construction & Infrastructure

Inside track: Construction & Infrastructure

In the media

Engineers Australia: the public release of the draft Design and Building Practitioners Bill
Engineers Australia has and continues to support the first recommendations in both the Shergold-Weir report and the Opal Tower report that there must be compulsory registration of engineers in NSW. Engineers Australia calls on the Government to make good on its promise to introduce compulsory registration of engineers (01 October 2019).  More... 

Construction quality problems will not impact housing demand
Well known quality problems in Australia’s construction market will not impact overall levels of new housing demand but may cause some shift in demand away from high-rise apartments towards lower density dwelling stock, a leading housing industry economist says (30 September 2019).  More... 

Construction companies collapsing at record rate as building slowdown bites
New figures reveal the number of construction companies going under in NSW hit its highest level in four years last quarter, as experts raise concerns about "phoenixing" — where a business is liquidated to avoid paying its debts (26 September 2019).  More... 

HIA Reveals Australia's Top Homebuilders for 2019
The market share of the Housing 100 builders has increased to 35 per cent this year from 33 per cent in 2017/18.  This  is  the  highest  market  share  since  2013/14  and  is  consistent  with  previous  trends  where volume home builders gained market share in a contracting market (25 September 2019).  More... 

New South Wales 

Have your say on Design and Building Practitioners Bill
This draft Bill introduces a range of reforms to improve areas of the building sector. It seeks to improve the quality and compliance of design documentation and to strengthen accountability across the design, building and construction sector (03 October 2019).  More... 

Building reform surges ahead with new certifiers regulation
The NSW Government is continuing to deliver on its commitment to reforming the building and construction industry, with the release of the draft Building and Development Certifiers Regulation 2019. The regulation is aimed at simplifying and strengthening the certification system in New South Wales and will allow the Government to more effectively register and regulate the conduct of certifiers (30 September 2019).  More... 

A deliberate strategy': Mascot Towers residents accused of 'forcing' Government to pay for repairs
The Government says the rejection by residents of a $10 million special levy loan was a "deliberate strategy" to force the state to pay for work to fix the beleaguered complex (25 September 2019).  More... 

CPB Contractors wins $463M Sydney Metro Station project
The NSW Government has awarded the contract, part of Sydney Metro, Australia’s biggest public transport project, which will generate revenue of approximately $463 million to CPB Contractors for design and construction of the station (23 September 2019).  More... 

Queensland

Bids open to build Rookwood Weir
Natural Resources Minister Dr Anthony Lynham said expressions of interest open online for construction contractors wanting to build Queensland’s next piece of major water infrastructure (02 October 2019).  More... 

$967 million FNQ capital works spend to generate 3300 jobs
Thousands of new jobs will be up for grabs in Far North Queensland thanks to the Palaszczuk Government’s $967 million capital works program, set to be outlined at an FNQ business forum held at Cairns Convention Centre (30 September 2019).   More... 

Victoria

Stage 2 of Monash Freeway upgrade contract awarded
The design and construct contract for Stage 2 of the Monash Freeway upgrade has been awarded. CIMIC Group company CPB Contractors has been selected, with the contract expected to generate revenue of approximately $761 million (04 October 2019).  More... 

Victoria to undergo $870 million road maintenance blitz
Victoria will receive a massive maintenance blitz for its road network with the State Government announcing more than $870 million in funding to improve hundreds of freeways, arterial and country roads (02 October 2019).  More... 

Wind turbine manufacturing hub officially opened
The return of manufacturing to the former Ford site in Geelong has commenced, with wind turbine components currently being assembled at the factory. For the first time in 10 years, wind turbines are being assembled in Australia, and are providing an alternative manufacturing future for the old automotive plant (01 October 2019).  More... 

Practice and courts 

ABCB: NCC 2019 will be amended out-of-cycle
The ABCB is undertaking an out-of-cycle amendment for the 2019 edition of the National Construction Code. It will be known as NCC 2019 Amendment 1. The amendment is intended to introduce enhanced fire safety measures for early childhood centres in high-rise buildings and address recommendations identified in the Shergold Weir Building Confidence Report. Consultation closes on 10 October 2019 (23 September 2019).  More... 

PC: Resources Sector Regulation Issues paper
An issues paper outlines a range of issues on which the Commission seeks information and feedback.
Initial submissions are due by 31 October 2019.  More... 

New South Wales 

Cladding Guideline
In early 2018, the Building Ministers Forum asked Standards Australia to develop the system. Standards Australia has developed a permanent labelling system of aluminium composite panel products to support the identification of these products throughout their life-cycle. The new guideline can be purchased from the Standards Australia website.

Draft Legislation for design and building practitioners
The New South Wales Government is seeking feedback on new draft legislation governing the design, building and construction sectors. The Design and Building Practitioners Bill 2019 has been released as part of the government’s response to recommendations in the Building Confidence Report (by Professor Peter Shergold and Bronwyn Weir). A regulation will be developed in 2020 to support the bill. Submissions close 16 October 2019. Note: The reforms in the act and the supporting regulation will apply to certain categories of designs and to multi-unit and multi-storey residential apartment buildings (as set out in the regulation).  More... .

Queensland

QBCC reminder: There are changes to professional indemnity (PI) insurance for Certifiers
The Building and Other Legislation Amendment Regulation 2019 commenced on 9 August 2019, introducing amendments to the professional indemnity (PI) insurance for private certifiers relating to non-compliant external cladding. Private certifiers must continue to hold the required PI insurance. However, from 9 August 2019 to 30 June 2021, the required PI insurance may contain an exclusion for non-compliant external cladding. 

QBCC unites with the ATO and ASIC to highlight illegal phoenixing
QBCC, the Australian Taxation Office (ATO) and ASIC have joined forces in an educational offensive against illegal phoenixing in the building industry, with a, series of free road shows for building industry members across the State. Seminar information, including registration details, is available from the QBCC website.

Victoria

Better Apartments in Neighbours:  Public Consultation
DELWP is seeking feedback on the Better Apartments in Neighbourhoods Discussion Paper. The paper proposes changes to the Better Apartments Design Standards, focused on improving the relationship between new apartment developments and the amenity of existing neighbourhoods. Click here to have your say on changes to the planning rules for apartment developments. Submissions closed on 27 September 2019. 

Cases

Queensland

Goodsell Earthmoving Pty Ltd v Coordinator-General [2019] QSC 243
ADMINISTRATIVE LAW – JUDICIAL REVIEW – POWERS OF COURTS UNDER JUDICIAL REVIEW LEGISLATION – STAY OF PROCEEDINGS AND INTERLOCUTORY RELIEF – where the applicant seeks judicial review of a decision to impose two conditions on an approval for a material change of use – where the applicant operates a high impact industry in a low impact precinct in the Townsville State Development area and applied to the respondent for approval of its activities – where the respondent granted an approval for two years subject to conditions – where the applicant challenges only the condition limiting the approval to a two year period and a condition limiting vehicle movements to 80 heavy vehicle movements per day - where the respondent cross-applies for a stay or dismissal of the application on the grounds that such relief is inappropriate because the impugned conditions are integral and not severable from the approval as a whole – whether the proceeding should be stayed or dismissed
Acts Interpretation Act 1901 Cth s 15A; Acts Interpretation Act 1954 Qld s 9; Judicial Review Act 1991 Qld ss 5, 20(2), 23(g), 30(1), 48; State Development and Public Works Organisation Act 1971 Qld s 84E(3)

Sanrus Pty Ltd & Ors v Monto Coal 2 Pty Ltd & Ors (No 7) [2019] QSC 241
EVIDENCE – ADMISSIBILITY – OPINION EVIDENCE – EXPERT OPINION – GENERALLY – where the plaintiffs sought to adduce expert evidence in the form of a report from an expert in rail and other infrastructure as it relates to the development of a mine – where the defendants objected to extensive parts of the reports produced by the expert and some portions of the joint expert reports for which he was responsible – where the bases of the objections included that the matters contained in the report are not properly the subject of expert opinion, that the expert is not adequately qualified to make the impugned statements and that the opinions stated are not based wholly or substantially on the expert’s expertise – whether the objections to the expert reports should be upheld
Uniform Civil Procedure Rules 1999 Qld r 149

SHA Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd [2019] QCA 201
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – APPOINTMENT OF SUPERINTENDENT – where the appellant and the respondent entered into a design and construction contract – where a dispute arose regarding progress payment claims made by the respondent which were not paid by the appellant – where the question was raised in the first instance as to whether the payment claims were valid under the Building and Construction Industry Payments Act 2004 (Qld) – where the learned primary judge held in favour for the respondent – where the appellant appeals against the three orders made in the first instance – where the contract required the appointment of a superintendent – where it is contended by the respondent that the appellant, which was the principal of the contract, had nominated themselves as superintendent – where the matter below was decided on the basis that the appellant was the superintendent – where the validity of the payment claims hinged upon the standpoint that the appellant was the superintendent – where the question arose as to whether the appellant being the superintendent could be an implied term to the contract – whether the payment claims were valid – whether the appellant’s status as the superintendent under the contract could be an implied term 

Victoria

Queensland Phosphate Pty Ltd v Korda [No 2] [2019] VSCA 215
INSOLVENCY – Dormant mining company with insufficient cash to meet liabilities – Ownership of valuable mining tenements through subsidiary – Whether tenements realisable within reasonable period to enable payment of debts – Whether company able to pay all its debts as and when they became due and payable – Whether fact that tenements necessary for company’s ongoing business precluded them from being treated as realisable assets – Jingellic Minerals NL v Beach Petroleum NL [1991] SASC 3099; (1991) 56 SASR 532 considered – Rees v Bank of New South Wales [1964] HCA 47; (1964) 111 CLR 210, Re Timbatec Pty Ltd (1974) 24 FLR 30, Switz Pty Ltd v Glowbind Pty Ltd [2000] NSWSC 222; (2000) 18 ACLC 343 applied – Re Adnot Pty Ltd (1982) 7 ACLR 212, Re Newark Pty Ltd (in liq) [1993] 1 Qd R 409 distinguished – Corporations Act 2001 (Cth) ss 95A, 459A, 585.
INSOLVENCY – Whether subsidiary insolvent – Whether subsidiary should be wound up on the just and equitable ground – Corporations Act 2001 (Cth) ss 459A, 461(1)(k).

Levi v Z&H Building Development [2019] VSC 633
ADMINISTRATIVE LAW – Judicial review – Relief in the nature of certiorari – Whether adjudication determination is vitiated by jurisdictional error – Whether a payment claim was served in relation to a reference date which accrued more than three months’ earlier – Whether the Adjudicator correctly determined a reference date to 28 December 2018 – Whether certain work performed was able to be lawfully claimed – Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 56 – Building and Construction Industry Security of Payment Act 2002 (Vic) ss 14(5)(b), 28O, 28R, 29, 31-41 - Building Act 1993 (Vic), s 37H(2). 

MKA Bowen v Carelli Constructions [2019] VSC 436
ADMINISTRATIVE LAW – Judicial review – Relief in the nature of certiorari – Whether Adjudication Determination is vitiated by jurisdictional error as a result of a payment claim not served ‘on and from’ the relevant reference date – Whether an Adjudication Determination is vitiated by jurisdictional error as a result of a failure to determine that a payment claim was made because it was the second payment claim within the one reference date – Adjudication Determination quashed as it was not served on and from the relevant reference date – Building and Construction Industry Security of Payment Act 2002 (Vic), ss 9(1), 9(2)(a), 14(1), 14(8), 28Q.

Legislation

New South Wales 

Consultation or Exposure Bills – 01 October 2019
Design and Building Practitioners Bill 2019

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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