In the media – National

Brazil dam collapse: Samarco staff and BHP Billiton executives charged with homicide over disaster
BHP Billiton's former president of iron ore is amongst 21 current and former staff charged with manslaughter and environmental crimes over a dam collapse that killed 19 people (20 October 2016).  More...

Barnaby Joyce 'failed to deliver on inquiry promise' ahead of ABCC bill
Deputy Prime Minister Barnaby Joyce is accused of breaking a promise to ensure a Senate inquiry into workplace deaths ahead of reintroducing Australian Building and Construction Commission legislation (20 October 2016).  More...

Xenophon calls for subcontractors' national reserve fund after Bob Day's Home Australia collapse
A national statutory reserve fund needs to be put in place to repay subcontractors affected when home building companies collapse, independent senator Nick Xenophon says (18 October 2016).  More...

From Housing Assets to Housing People
A major new report by Infrastructure Partnerships Australia, with financial modelling by KPMG, released at the National Press Club, outlines a plan to fix Australia’s struggling public housing system by providing more money and more places for vulnerable households (18 October 2016).  More...

CFMEU and official to face court for allegedly shutting down site
Allegations that a concrete pour at a Brisbane construction site was cancelled because the head contractor had engaged a tiling firm without CFMEU approval have landed the union and one if its representatives, Michael Myles in court (17 October 2016).  More...

Tagara Builders liquidators alert watchdog after poring over books
The Master Builders Association demands an explanation from Australia's corporate watchdog over why it will not investigate the directors of failed company Tagara Builders (13 October 2016).  More...

Housing finance confirms fewer first home buyers
The latest housing finance figures released today by the Australian Bureau of Statistics (ABS) confirm fewer first home owner occupiers in the market (11 October 2016).  More...

In the media – Victoria

Value capture could help fund major projects
Infrastructure Victoria has today released a research paper exploring how value capture – such as imposing a levy on windfall gains made by property owners near a new train station – could help fund infrastructure in Victoria (13 October 2016).  More...

Levy for Victorian property owners to pay for major projects floated
Victoria's independent infrastructure body suggests charging a new levy on property owners to help pay for future major projects, like a train tunnel through Melbourne's CBD connecting northern and southern suburbs (13 October 2016).  More...

In the media – New South Wales

Beware of unlicensed contractors
An unlicensed contractor has been successfully prosecuted by New South Wales Fair Trading for contracting to do residential home building and specialist work, despite being an unqualified tradesman. Mr Vlatko pleaded guilty to six offences under the Home Building Act and was ordered to pay over $23,000 in fines and costs (17 October 2016).  More...

Improvements to environmental impact assessment
The New South Wales Government will promote earlier and better engagement with the community in the assessment of large scale or complex projects, often classified as state significant development or state significant infrastructure (16 October 2016).  More...

Record housing completions in NSW
More than 51,000 new homes were delivered across New South Wales over the last year setting a new all-time record for the State. Planning Minister Rob Stokes said the planning system was working to deliver more new homes than ever before (12 October 2016).  More...

In the media – Queensland

Fast-tracked financial boost to deliver vital community infrastructure
Queensland councils will be in a stronger position to deliver priority infrastructure and programs to protect their communities from natural disasters with fast tracked grants from the Palaszczuk Government (21 October 2016).  More...

Applications to open for $5M infrastructure scheme
Thirty-one remote and Indigenous councils will be able to apply for a one-off special round of the Palaszczuk Government’s $375 million Building our Regions infrastructure program from next week (12 October 2016). More...

North Queensland secures major renewable project & new jobs
Minister for Energy Mark Bailey has welcomed the ARENA funding for the Kennedy Energy Park in North Queensland. The 40 megawatt wind and solar farm near Hughenden would boost energy supply and reliability and was expected to create more than 50 direct jobs during construction (14 October 2016).  More...


Value capture - options, challenges and opportunities for Victoria
Infrastructure Victoria: 13 October 2016
This paper outlines the options, challenges and opportunities for implementing value capture in Victoria, including opportunities that arise from both infrastructure investment and planning changes.  More...

ACI Construction Briefs
10 October 2016: ACI Construction Brief: Growth Ahoy for Non-Residential Construction

Practice and courts

ASIC clarifies guidance for forward-looking statements in the mining and resources industry
ASIC has re-issued an updated Information Sheet 214 Mining and resources: Forward-looking statements (INFO 214), on statements relating to future matters commonly made in the mining and resources industry (12 October 2016).  More...

Infrastructure Australia: Infrastructure Priority List
The Infrastructure Priority List is a prioritised list of nationally significant investments. The current priority list for October is now available.  More...

Announcements, Draft Policies and Plans released 2016

Infrastructure Victoria consultation: Draft 30-year infrastructure strategy for Victoria
To read the policy paper and supporting documentation or provide feedback on value capture, visit our consultation website.  Consultation on the draft strategy closes on 31 October 2016.


Henley Arch Pty Ltd v Lucky Homes Pty Ltd [2016] FCA 1217
COPYRIGHT – infringement – artistic work – project home floorplan – whether alleged infringing work objectively similar – whether alleged infringing work reproduced a substantial part – three-dimensional form derived from two-dimensional work – defence of innocent infringement – Copyright Act 1968 (Cth) s 115(3) – loss of opportunity damages – loss of profits – additional damages – Copyright Act 1968 (Cth) s 115(4) – claims upheld – cross-claim under contractual indemnity – cross-claim for misleading or deceptive conduct. 

Ferrari Estate Holdings Pty Ltd v Cooktown Earthmoving & Quarrying Pty Ltd & Anor [2016] QCA 266
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – UNIFORM CIVIL PROCEDURE RULES – DISMISSAL OF PROCEEDINGS FOR WANT OF PROSECUTION – where the appellant owned a building that was flooded and damaged in 2004 – where the appellant claims that the resultant damage was caused by development and construction work done on neighbouring property – where the appellant commenced proceedings in 2010 against the neighbouring land owner, the building company as the first respondent, and the builder as the second respondent for damages for negligence, alternatively nuisance and trespass – where more than five years later the proceedings had still not come to trial – where the learned primary judge dismissed the case against the owner of the neighbouring land for want of prosecution on 13 May 2015 – where the first and second respondents applied under r 280 of the Uniform Civil Procedure Rules 1999 (Qld) for the proceedings against them to be dismissed for want of prosecution – where the learned primary judge dismissed the case against the respondents on 31 July 2015 – where the appellant seeks to appeal from that order – whether the learned judge erred in dismissing the proceedings against the respondents for want of prosecution.
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN GRANTED – where the notice of appeal was not filed in time – where the appellant has filed an application for extension of time in which to appeal – where the only opposition to the application for an extension of time was on the basis that the proposed appeal lacked merit – where the application for extension of time is granted. 

Ostwald Bros Pty Ltd v Jaylon Pacific Pty Ltd & Ors [2016] QSC 240
ADMINISTRATIVE LAW – PREROGATIVE WRITS AND ORDERS – CERTIORARI – GROUNDS FOR CERTIORARI TO QUASH – EXCESS OR WANT OF JURISDICTION – PARTICULAR INSTANCES OF JURISDICTIONAL ERROR – where the applicant and the first respondent were parties to a construction contract – where the first respondent served a payment claim under the Building and Construction Industry Payments Act 2004 (Qld) for work claimed to have been performed under the contract as well as additional work by way of variations – where the applicant disputed the claim and sought to claim an amount for liquidated damages for late performance by the first respondent – where an adjudication decision was purportedly made under the Act – whether the applicant had been denied procedural fairness because the adjudicator determined the dispute on a basis that was not the subject of submissions from either party – whether the adjudication decision should be declared void.  

SunWater Limited v Drake Coal Pty Ltd & Anor [2016] QCA 255
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – DISCLOSING NO REASONABLE CAUSE OF ACTION OR DEFENCE – where the appellant commenced proceedings in the Trial Division claiming damages in contract and, in the alternative, reasonable remuneration for work done in preparation for the construction of various pipelines – where the appellant brought an application to strike out multiple paragraphs of the respondents’ draft defence and counterclaim, contending that the respondents pleaded matters that were irrelevant to the restitutionary claim – where the learned trial judge dismissed the application – where, subsequent to the trial judge’s order but before the appeal, the respondents filed an amended defence and counterclaim – where the appellant contends that the learned trial judge erred in identifying the elements of the restitutionary claim and any defence to it and, notwithstanding the amendments, the pleading remains defective – whether the subject paragraphs of the defence and counterclaim are relevant to the restitutionary claim – whether the paragraphs should be struck out. 

Facade Treatment Engineering Pty Ltd (in liq) v Brookfield Multiplex Constructions Pty Ltd [2016] VSCA 247
BUILDING AND CONSTRUCTION – Right to progress payments in Building and Construction Industry Security of Payment Act 2002 (‘BCISP Act’) s 9(1) – Reference to person who has undertaken ‘to carry out construction work’ or ‘supply related goods and services’ – Whether provisions available to companies in liquidation.
STATUTORY INTERPRETATION – Scope of BCISP Act – Consideration of text, context and purpose of Act – Provisions of BCISP Act pt 3 not available to companies in liquidation.
CONSTITUTIONAL LAW – Whether s 109 inconsistency arises between BCISP Act ss 16(2)(a)(i) and (4)(b) and Corporations Act 2001 (Cth) (‘Corporations Act’) s 553C – Where s 553C provides for set-off of mutual dealings with insolvent company – Where BCISP Act provides for summary judgment proceeding that precludes reliance upon cross-claims or defences – If ss 16(2)(a)(i) and (4)(b) available to companies in liquidation, they would ‘alter, impair or detract from’ operation of s 553C.
CORPORATIONS LAW – Where Corporations Act s 553C(2) precludes set-off where person had notice of company’s insolvency at time of giving credit to or receiving credit from company – Mutual dealings pursuant to contract entered into prior to company’s insolvency – Whether date for assessing notice of insolvency is date of entry into contract or date of conduct pursuant to or in breach of contract.
BUILDING AND CONSTRUCTION – Requirements for payment schedules under BCISP Act s 15 – Adequacy of reasons for withholding payment.  




Troy Lewis, Partner & National Head of Construction and Infrastructure
T: +61 7 3135 0614

Stephen Burton, Partner
T: +61 7 3135 0604

Suzy Cairney, Partner
T: T: +61 7 3135 0684


Stephen Natoli, Partner
T: +61 3 9321 9796


Christine Jones, Partner
T: +61 2 8083 0477

Scott Alden, Partner
T: +61 2 8083 0419


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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