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News

MBA: The carbon tax and your building business
The Australian Government’s carbon tax will start on 1 July 2012 and will have far-reaching implications for businesses, consumers and the Australian economy, according to Master Builders, including the building industry and for anyone responsible for building contracts (19 April 2012) More...

ABCC’s first sham contracting prosecution filed in Queensland
The ABCC will allege that Supernova Contractors Pty Ltd and its Director, Steven Paul Long, contravened s357 of the Fair Work Act 2009 (FW Act) by misrepresenting three employees as independent contractors (17 April 2012) More...

Regional building approvals show positive growth: February 2012
Building Approvals regional figures, released recently the Australian Bureau of Statistics, show positive growth across all regional centres, according to Master Builders, Queensland. The Director of Housing Policy, said that for the first time since the onset of the GFC all regional areas recorded positive growth for total new residential approvals (17 April 2012) More...

Oil giants fight laws on offshore energy projects
The federal government faces a backlash against plans for stronger "use it or lose it" laws on offshore oil and gas projects. The government's draft energy white paper aims to reform the much-criticised system that allows petroleum giants to hold and then roll over their offshore reserves in five-year blocks without developing them (17 April 2012) More...

ACCC turns attention to building products sector
The building materials industry is set to come under greater scrutiny from the Australian Competition & Consumer Commission (ACCC) as major manufacturers flag the likelihood of having to buy from competitors to cover product shortfalls (12 April 2012) More...

Australia and China MOU on Enhancing Cooperation in Infrastructure Construction
The Australian and Chinese governments have signed a Memorandum of Understanding to strengthen cooperation on delivering infrastructure for both nations.  The MOU will mean closer co-operation on planning of projects, exchanging information on investment opportunities and technical expertise, training and education, joint conferences, as well as joint infrastructure projects in the future (10 April 2012) More...  

Lethal, toxic truth buried in a ditch
Fire and Rescue NSW hazardous materials investigators have joined union officials and other authorities at the site where toxic pesticide and possible remnants of radioactive waste were unearthed during roadworks. An environmental impact statement for the upgrade of the Pacific Highway stated there had been some uncertainty about where the waste was buried (19 April 2012) More...

Social Impact Management Plan - Gladstone region to reap the benefits of LNG
Deputy Premier and Minister for State Development, Infrastructure and Planning has announced Queensland’s first Social Impact Management Plan, which has been approved for the Queensland Curtis Liquefied Natural Gas (QCLNG) facility. The QCLNG Social Impact Management Plan is the first of the three such plans under consideration for the industry (12 April 2012) More...

Vic premier says six-star rating will stay
Victorian Premier Ted Baillieu says the government has no plans to dump six-star energy rules for new homes. The six-star energy efficiency standard has been a state regulation for all new homes since May last year (16 April 2012) More...

Developer awarded $2.2m damages in shonky building dispute
A Property developer has won more than $2 million in damages for shoddy construction work after a long battle during which Victoria's building regulator did not investigate the builder. The VCAT ruling came two years after the Victorian Building Commission was notified about sub-standard work on the $4 million development (18 April 2012) More...

Minerals Council of Australia: Sound science not politics should determine land-use
The Minerals Council of Australia, Victorian Division is profoundly disappointed by the Victorian Opposition’s call for a moratorium on coal seam gas exploration, stating land use approvals should be based on sound science, and this is particularly the case with coal seam gas where community sentiment is often underpinned by groups generally opposed to industrial development (12 April 2012) More...

Articles

Pouring fuel on the fire: the nature and extent of Federal Government subsidies to the mining industry
Source: Matt Grudnoff; The Australia Institute
The federal government gives just over $4 billion in direct subsidies to mining companies each year, mainly in the form of cheap fuel and tax breaks for building roads and railways, this policy brief reveals (18 April 2012) More...

ABS Building Activity, Australia, December 2011
Source: Australian Bureau of Statistics
The trend estimate of the value of total building work done fell 1.7% in the December 2011 quarter. The seasonally adjusted estimate of the value of total building work done fell 4.9% to $18,742.1m, in the December quarter, following a rise of 1.2% in the September 2011 quarter
The seasonally adjusted estimate of the value of new residential building work done fell 1.7% to $9,307.5m; the seasonally adjusted estimate of the value of non-residential building work done in the quarter fell 9.1%, following a 6.2% rise in the September 2011 quarter (18 April 2012) More...

High Court determines the standard of reasons of an expert
Source: Hon Barry O’Keefe, Australian Building Law Journal, 2012, April, pp87
Making expert determinations final and binding in the courts

Performance anxiety: intention and ability to rectify and the reward of rectification damages
Source: Simon G Frauenfelder,  Australian Building Law Journal, 2012, April, pp90
Australian contract law should require builders to pay rectification damages irrespective of the plaintiff’s intention or ability to rectify

Practice Notes

Master Builders Australia: carbon tax and your building business
Master Builders has developed some ‘dos and don’ts’ for building contractors when dealing with the carbon tax in the lead up to its introduction on 1 July 2012. Master Builders has developed information for builders and trade contractors when considering the impact of the carbon tax on contracts. Master Builders (19 April 2012) More...

NSW: Building Certification Forms
The Board has developed certification forms to be used as templates when carrying out certification work, or to review the forms already used by certifiers in their certification processes.  The certification forms reflect statutory requirements and also include additional matters as advised by the Board's Technical Reference Group (for example, where notices are received by council) (April 2012) More...

QLD: Arrow Energy EIS – Public Consultation
The public is invited to have its say on the environmental impact statement (EIS) for the proposed multi-billion dollar Arrow liquefied natural gas (LNG) planti on Curtis Island, in the Port of Gladstone.
The EIS will be available for public comment for six weeks from Monday 16 April 2012.
A copy of the EIS can be downloaded from www.arrowenergy.com (12 April 2012) More...

VIC:  six-star energy rating regulations for new homes
Premier Ted Baillieu confirms the six star standard that has been a regulation in Victoria since may 2011, will remain in force (18 April 2012) More...

Cases

Monaghan Surveyors Pty Ltd v Stratford Glen-Avon Pty Ltd [2012] NSWCA 94
DAMAGES - contract - negligent breach of contract - failure to exercise due care and skill - whether Civil Liability Act 2002 (NSW), Pt 1A applies - whether analysis under Civil Liability Act 2002 (NSW), s 5D incorporates policy questions - whether loss was reasonably within the contemplation of the parties as the probable result of the contract
DAMAGES - tort - negligence - failure to exercise due care and skill - whether Civil Liability Act 2002 (NSW), Pt 1A applies - whether analysis under Civil Liability Act, s 5D incorporates policy questions - whether loss was reasonably foreseeable - whether differing outcomes in tort and contract justified
DAMAGES - misleading and deceptive conduct - whether Civil Liability Act 2002 (NSW), Pt 1A applies to claim under Fair Trading Act 1987 (NSW), s 42 - whether elements of cause of action for misleading and deceptive conduct include negligence - whether position differs under Trade Practices Act 1974 (Cth), s 52 - whether losses resulting from representations that involved same consequences as simultaneous claims in tort and contract are recoverable More...

Bushby v Dixon Holmes du Pont Pty Ltd & Anor [2012] NSWCA 90
The application for leave to appeal is dismissed.
APPEAL - civil - where matter in issue amounting to $100,000 or less - appeal from District Court judgment for $59,562 in dispute over early termination of licence - no reasonable prospects of success in overturning finding of primary judge - arguable alternative case on appeal - would require retrial - expense of retrial and continuing litigation not commensurate with amount in dispute - application for leave to appeal dismissed More...

The Owners Corporation of Strata Plan 61390 v Multiplex Corporate Agency Pty Limited and Ors (No 2) [2012] NSWSC 322
CIVIL PROCEDURE - separate question - obligation to take interventionist role - effect of Civil Procedure Act 2005 - overriding purpose intersects with usual warnings about dangers of separate questions CONTRACT - deed of release - Grant v John Grant & Sons (1954) 91 CLR 112 - construction - general words of release confined to subject matter of dispute - limited by recitals and other admissible evidence EQUITY - deed of release - Grant v John Grant & Sons (1954) 91 CLR 112 - equitable principle - unconscientious reliance on legal rights - general words of release confined to true purpose of transaction EVIDENCE - deed of release - Grant v John Grant & Sons (1954) 91 CLR 112 - equity permits consideration of state of knowledge of parties concerning existence, character and extent of liability in question [including] actual intention of releasor
BUILDING AND CONSTRUCTION - notorious likelihood of future claims - plaintiff advised by specialist construction litigation solicitors - probative value of evidence of lack of awareness of claims - desirability of evidence from plaintiff's solicitor More...

New South Wales Land and Housing v Clarendon Homes [2012] NSWSC 333
BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 (NSW) - adjudication determination - whether adjudicator's performed statutory function by giving sufficient reasons for the decision that was made - ADMINISTRATIVE LAW - jurisdictional error - denial of natural justice - whether adjudicator gave sufficient reasons for accepting superintendent's representative's assessment - whether adjudicator properly dealt with submissions based on the quantum of the claim - whether adjudicator erred by failing to note a concession - whether oversight capable of correction under "slip rule" - whether adjudicator failed to afford natural justice by omitting reference to materials provided to him in relation to submissions and documentation in support of a payment schedule. More...

Canterbury City Council v Mihalopoulos (No 3) [2012] NSWLEC 72
SENTENCE - sentencing following plea of guilty to two charges of contempt for failure to comply with court orders to remove unlawful building work - wilful contempt - contempt not purged - sale of property subject of contempt charges - mitigating factors of financial incapacity, early plea of guilty - periodic fine imposed More...

Bach and Anor v Majestic Pools & Landscape Pty Ltd [2012] QCAT 132
Building dispute – domestic pool – breach of warranty – provisional sum – role of certifier – demolition – rectification More...

Lida Build Pty Ltd v Miller and Anor [2012] QCAT 137
Contract – Domestic Building Contract – Remuneration – Whether a home owner may lose the right to liquidated damages when they have contributed to or caused the contractor‘s delay
Contract – Domestic Building Contract – damages – whether assessed according to rectification measure rather that diminution in value
Peak Constructions (Liverpool) v McKenney Foundations Limited (1970) 69 LGR 1 followed SMK Cabinets v Hili Modern Electrics Pty Ltd [1984] VR 391 followed Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272 at 286 followed Willshee v Westcourt Ltd [2009] WASCA 87 followed More...

Contact details

Melbourne

Chris Edquist, Partner
T: +61 (0)3 9321 9919
E: chris.edquist@holdingredlich.com.au

Brisbane

Troy Lewis, Partner
T: +61 (0)7 3135 0614
E: troy.lewis@holdingredlich.com.au

 

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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