In the media

Japan ups the ante on infrastructure
Japanese Prime Minister Shinzo Abe announced in May that his government and the Asian Development Bank (ADB) will jointly provide US$110 billion for the financing of “innovative” infrastructure in Asia over the next five years (19 June 2015).  More...

Call for political parties to honour infrastructure contracts
Australia's leading construction contractors have called on all political parties to commit to honouring contracts entered into for the construction of Australia's much needed infrastructure (18 June 2015).  More...

Renewables helping global emissions-GDP 'decoupling': REN21
Renewable energy targets and other support policies, now in place in 164 countries, powered the growth of solar, wind and other renewable technologies to a record-breaking energy generation capacity last year: about 135 GW of added renewable energy power increasing total installed capacity to 1,712 GW, up 8.5% from the year before (18 June 2015).  More...

ACCC is under fire on building products as HIA calls for Senate inquiry
Shoddy building products, especially those imported from overseas, have risen to the top of industry concerns with the Housing Industry Association calling for a Senate Inquiry into non-conforming products (17 June 2015). More...

New South Wales the king of non-residential construction activity
Australian Construction Insights (ACI) has today released the inaugural edition of the ACI Construction Monitor and places NSW at the top of the pedestal. "Residential building activity has set records recently, particularly for construction of higher density housing in the east coast population centres”. (17 June 2015).  More...

Construction insolvency hearing starts in Canberra
Better enforcement and tougher rules are needed to stop dodgy developers who rip off construction contractors, unions say.  A parliamentary inquiry into insolvency in the construction industry is due to begin in Canberra on Friday (12 June 2015).  More...

Australian median house price exceeds $650,000
The Real Estate Institute of Australia (REIA) says that Australia’s housing market continued its growth in the first quarter of 2015, according to the latest Bendigo Bank/REIA Real Estate Market Facts publication (12 June 2015).  More...

Housing Affordability Remains a Major Issue for Australian Households
The current public discussion taking place around housing affordability highlights a huge and growing problem for thousands of Australian households, according to the UDIA (10 June 2015).  More...

G7 meeting: World leaders pledge to act on climate change, phase out fossil fuels by end of century
The G7 group of industrial nations have pledged to phase out the world's use of fossil fuels by the end of the 21st century (09 June 2015). More...

Victoria

East West Link Deal Finalised
The Andrews Labor Government has reached binding final agreements with the East West Connect consortium (EWC), formalising the in principle deal that was agreed in April (15 June 2015).  More...

Abbott's Ignorance on Renewable Energy Will Cost Victoria Jobs
The clean energy industry in Victoria supports more than 4000 jobs, and many companies that currently supply the automotive industry are looking at renewable energy projects as a lifeline for their business (11 June 2015).  More...

Infrastructure Contributions Overhauled
The Andrews Labor Government has delivered a simpler, fairer development contributions system to provide for infrastructure, particularly in the state’s rapidly-expanding growth areas with new legislation introduced into Parliament (11 June 2015).  More...

Security of Payment for contractors
Everybody involved in a building project should get paid for the work they do. Unfortunately, disputes sometimes arise over payment. The Building and Construction Industry Security of Payment Act 2002 (SOP Act) helps ensure that anyone who carries out construction work or supplies related goods and services under a construction contract gets paid (09 June 2015).  More...

New South Wales

Reaching Common Ground
The Division of Resources and Energy today released Common Ground, a web application that easily allows communities to search all coal, mineral and gas exploration or production titles in their region (17 June 2015).  More...

Tenders open for Narellan Road upgrade
Tenders are now open for Stage Two of the $114 million upgrade of Narellan Road in Western Sydney.  The upgrade plays a key role in the Australian and New South Wales governments plans to transform this vital part of Sydney (16 June 2015).  More...

First Western Sydney Infrastructure Plan report card released
The Australian and NSW governments today released the first Western Sydney Infrastructure Plan report card, providing a comprehensive overview on the first three months of major work undertaken as part of the $3.6 billion package (10 June 2015).  More...

MOU between NSW and SA to attract mineral investment
The New South Wales and South Australia state governments are working together to attract investors for minerals and energy exploration and development. The two states share geological provinces such as the Murray Basin (mineral sands), the Curnamona Province (lead, zinc silver, uranium) and the Delamerian Orogen (iron) (09 June 2015). More...

Queensland

Gold Coast channel dredging to be reviewed
Queensland Ports Minister Mark Bailey has requested an independent review into plans to dredge a Gold Coast channel. Mr Bailey has held talks with the Gold Coast Waterways Authority and the Australian Live-aboard Association on plans to dredge the Labrador Channel and change mooring arrangements for boat residents (17 June 2015).  More...

QLD councils win local disaster relief battle
Queensland’s councils and its state government have finally won their important and protracted battle to be allowed to use local labour on federally funded disaster relief and clean-up programmes instead of hiring-in more expensive external contractors (16 June 2015).  More...

Stricter penalties for building offences
Tougher penalties will apply from 1 July for contractors who commit building offences. The QBCC says the increased penalties will help to boost compliance with building standards and provide more options for removing recalcitrant licensees (12 June 2015).  More...

Simpler, more flexible building contracts benefit all
From 1 July 2015, contracts for residential building work will be more flexible and easier to use. The new contracts, developed by the Queensland Building and Construction Commission (QBCC), will benefit home and property owners as well as industry members (09 June 2015).  More...

Gladstone port master plan sets the standard
Public consultation begins this week on an initiative that will drive economic development in and around Gladstone’s port and protect the Great Barrier Reef (08 June 2015).  More...

Published – articles, papers, reports

Pathway to Productive and Sustainable Infrastructure Workshop Report June 2015
Australian Sustainable Built Environment Council. The approach to infrastructure planning outlined in this report responds to many of these challenges and opportunities and advocates for a 30 Year Infrastructure Plan; Collaborative Stakeholder Engagement and Five Pathways (Released 17 June 2015).  More...

Australian Infrastructure Metric December Quarter 2014
The average work won index for the first six months of FY2014/15 was down significantly on FY2013/14 (see Figure 1), suggesting that public investment – while strengthening – has yet to lift to levels sufficient to offset the retreat in mining (19 June 2015).  More...

Security of Payment Adjudication Activity Statistics Report for 2013-2014
Victorian Building Authority. The report provides summarised adjudication data for the 2013-2014 Financial Year. The information in this report is based on data provided to the VBA by ANAs (09 June 2015).  More...

Practice and courts

CER: Westech Solar and Solimpeks brand products certification to AS/NZS 2712 cancelled
The Clean Energy Regulator has been informed that the certification to AS/NZS 2712:2007 for Westech Solar and Solimpeks brand solar water heater products has been cancelled by the relevant accrediting body as of 11 May 2015 (15 June 2015).  More...

Cases

Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21
Appeal dismissed with costs. Practice and procedure – Contempt of court – Discovery – Where proceeding brought under r 75.06(2) of Supreme Court (General Civil Procedure) Rules 2005 (Vic) ("Rules") to punish appellant for contempt of court – Where appellant is a corporation – Whether a corporation may be ordered to make discovery under r 29.07(2) of Rules in a contempt proceeding – Whether a contempt proceeding is a criminal proceeding or a civil proceeding. Words and phrases – "accusatorial proceeding", "civil proceeding", "companion principle", "criminal proceeding".  More...

Shaw Building Group Pty Ltd v Narayan (No 2) [2015] FCA 585
RESTITUTION – discussion of principles for quantifying the applicant’s claim for money had and received against the person who stole those moneys in circumstances where both the thief and his accomplices made repayments over time to the applicant – whether the applicant is entitled to the total amount stolen less amounts repaid by the thief or that amount less also the quantum of the repayments made by the thief’s accomplices Civil Law (Wrongs) Act 2002 (ACT), Ch 7A, s 107B; Corporations Act 2001 (Cth).  More...

Watpac Construction NSW Pty Limited v Taylor Thompson Whitting (NSW) Pty Ltd [2015] NSWSC 780
CONTRACT – Specific performance of dispute resolution clause – Where parties agreed to refer dispute to independent expert determination – Where one party refused to execute Expert Determination Agreement – Proper construction of primary agreement and Expert Determination Agreement. More...

Roads and Maritime Services v Allandale Blue Metal Pty Ltd [2015] NSWCA 167
APPLICATION FOR STAY – whether risk respondent will be unable to repay monies without difficulty or delay – whether risk respondent will dissipate assets – balance of convenience – interests of justice - Quarry Products (Newcastle) Pty Ltd (QPN) which operates a quarrying business on the land, accepted the sum of $807,758 for disturbance pursuant to s 55(d) of the Act, based on loss of profits due to reduced access to the site and the resource.  More...

Monadelphous Engineering Pty Ltd & Anor v Wiggins Island Coal Export Terminal Pty Ltd [2015] QSC 160
CONTRACTS – BUILDING ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – SECURITY AND RETENTION FUNDS – where the defendant contracted the plaintiffs’ firm to perform construction work under several contracts in relation to the construction of a coal export terminal – dispute over whether the defendant was entitled to call upon four bank guarantees provided by the plaintiff as security for its performance, amounting to 10 per cent of the contract price – where the defendant called upon the guarantees, claiming it was entitlement damages for the plaintiffs’ delay in performance – where the contract entitled the defendant to have recourse to the securities where the defendant had a bona fide claim against the plaintiff – where the plaintiffs claimed that the terms of the contract were qualified by s 67K of the Queensland Building and Construction Commission Act 1991 (Qld) which limited the retention amounts and securities for a builder’s performance to 5 per cent of the contract price and s 67J, which provided a contracting party may only use a security to obtain an amount owed where it has given written notice to the contracted party – whether the contract was a “building contract” within the meaning of s 67J and 67K – a building contract is a contract for carrying out building work – whether items of work fell within excluded items in s 5 and Sch 1AA of the Regulation – where the plaintiff failed to establish that work in respect of items pleaded was for “building work” – contract was not a “building contract” for the purpose of the Act. STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PARTICULAR WORDS AND PHRASES – whether the contract between the defendant and plaintiffs was a “building contract” within the meaning of s 67J and 67K of the Queensland Building and Construction Commission Act 1991 (Qld) or its predecessor – onus on the plaintiff to prove the contract was a building contract – a building contract is a contract for carrying out building work – whether items of work fell within excluded items in s 5 and Sch 1AA of the Regulation – the approach to characterisation of relevant works with a “broad and practical interpretation” of the items within the Regulation without it being necessary that the work be precisely described by the item – contract was not a “building contract” for the purpose of the Act.  More...

Saipem Australia Pty Ltd v GLNG Operations Pty Ltd (No 2)[2015] QSC 173
CONTRACTS – BUILDING ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – SECURITY AND RETENTION FUNDS – where the applicant claimed the respondent was not entitled under s 67J of the Queensland Building and Construction Commission Act 1991 (Qld) to use a security in the form of two bank guarantees to obtain an amount owed to it, because no amount was actually due to the respondent – applicant argued that the contract entitled the respondent to have recourse to bank guarantees only to “recover any debt due” and that whether the liquidated damages claimed constituted debts due was to be determined by an arbitrator. EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – RELEVANT CONSIDERATIONS – BALANCE OF CONVENIENCE GENERALLY – where the applicant sought interlocutory injunction restraining the respondent from demanding payment under two bank guarantees – uncontradicted evidence the applicant would suffer reputational damage if the respondent made demands upon guarantees – respondent argued that the applicant could avoid that risk by paying the amounts claimed – where a contractual clause provided the applicant would not restrain the respondent from making a demand under a performance guarantee even when it disputed the respondent’s right to payment – where this could be said to act as a “risk allocation device” to allocate risk as to who should be out of pocket pending resolution of a dispute – when a performance guarantee acts as a risk allocation device this often has a decisive impact upon the balance of convenience if the court is asked to restrain by interlocutory injunction the use of the guarantee – whether non-compliance with s 67J of the Queensland Building and Construction Commission Act 1991 (Qld) should tilt the balance in favour of an injunction - where the respondent would be prejudiced by the grant of an injunction because it would not have the money to which it allegedly was entitled –respondent restrained from calling on the bank guarantees. EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INTERLOCUTORY INJUNCTIONS – INJUNCTIONS TO PRESERVE STATUS QUO OR PROPERTY PENDING DETERMINATION OF RIGHTS – OTHER CASES – respondent argued the applicant had no case for final determination which could found an interlocutory application because the disputes about extensions of time and certain completion dates in the Originating Application must be determined by an arbitration – the applicant claimed final relief in the form of declarations that the liquidated damages were not amounts owed or debts due to the respondent and that notices given under s 67J of the Queensland Building and Construction Commission Act were invalid – the applicant had legal rights from the contract and from s 67J requiring the protection of an interlocutory injunction – where the respondent was restrained from calling on the bank guarantees. STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PARTICULAR WORDS AND PHRASES – whether it was a purpose of the Queensland Building and Construction Commission Act 1991 (Qld) that a notice given in breach of s 67J(2) should be invalid – the better view seems to be that noncompliance would have the consequence of invalidating the notice – whether the respondent gave notice to the applicant within 28 after it became aware of its right to obtain the amount owed – where the contract provided that the obligation to pay liquidated damages arose only when a certificate of completion was issued by the respondent company’s representative – notice under s 67J must state the amount owed – the 28 day period to give notice under s 67J did not commence from the date of awareness that something was owed but from the date the respondent certified the date for completion and became aware of the period of delay.  More...

Gambaro Pty Ltd v Rohrig (Qld) Pty Ltd [2015] QSC 170
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER THE UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – SUMMARY JUDGMENT – PLEADING – STATEMENT OF CLAIM JUDGMENT – where the plaintiff and defendant entered into a construction contract – where the defendant made a number of claims for progress payments under the contract prior to practical completion – where the defendant issued a payment claim under the Building and Construction Industry Payments Act 2004 (Qld) (‘BCIPA’) after practical completion had been reached, seeking further payment for all works completed to that point – where that payment claim was adjudicated under BCIPA – where the plaintiff paid the adjudicated amount – where the plaintiff then commenced proceedings seeking restitution of the amount owed – where the defendant argued that the plaintiff’s claim had been brought pre-emptively, while the statutory regime had yet to complete running its course, contrary to the intention of BCIPA s 99 – whether the plaintiff’s claim and statement of claim should therefore be struck out in full – alternatively, whether certain paragraphs of the plaintiff’s statement of claim should be struck out under Uniform Civil Procedure Rules 1999 (Qld) r 171. PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER THE UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – SUMMARY JUDGMENT – where the plaintiff and defendant entered into a construction contract – where the defendant had made a number of claims for progress payments under the contract prior to practical completion – where the defendant issued a payment claim under the Building and Construction Industry Payments Act 2004 (Qld) (‘BCIPA’) after practical completion had been reached, seeking further payment for all works completed to that point – where that payment claim was adjudicated under BCIPA – where the plaintiff paid the adjudicated amount – where the plaintiff then commenced proceedings seeking restitution of the amount owed – whether, on failure of the defendant’s strike-out application, summary judgment should be granted. CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – ADJUDICATION OF PAYMENT CLAIMS – where the plaintiff and defendant entered into a construction contract – where the defendant had made a number of claims for progress payments under the contract prior to practical completion – where the defendant issued a payment claim under the Building and Construction Industry Payments Act 2004 (Qld) (‘BCIPA’) after practical completion had been reached, seeking further payment for all works completed to that point – where that payment claim was adjudicated under BCIPA – where the plaintiff paid the adjudicated amount – where the plaintiff then commenced proceedings seeking restitution of the amount owed – whether the effect of BCIPA s 99 is to oust the supervisory jurisdiction of the Supreme Court and prevent the enforcement of a party’s contractual rights during the operation of the statutory progress payment regime.  More...

Samimi & Anor v Queensland Building and Construction Commission [2015] QCA 106
PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURT – CIVIL JURISDICTION – APPEAL AND NEW TRIAL – APPEAL TO SUPREME COURT – where the trial judge gave summary judgment against the appellants in favour of the respondent – where there were two requirements for summary judgment: first, that there was no real prospect of success in any defence of the claim, and second, that there was no need for a trial – where the appellant submitted that a factual dispute which was relevant to the respondent’s prospects of success in relation to the claim – where the factual dispute was not sufficiently explained such as to allow the primary judge to conclude there was no need for a trial – whether the primary judge erred in giving summary judgment. INSURANCE – where there was a statutory insurance scheme – where the respondent paid a building owner $400,000 pursuant to the statutory insurance scheme due to the defective work of a builder – where the appellants were the directors of the builder, which was a corporation – where the respondent sought to recover that payment from the appellants – whether the payment made was “on a claim under the insurance scheme”.  More...

PT Thiess Contractors Indonesia v PT Arutmin Indonesia [2015] QSC 123
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – where the parties entered into a deed of settlement and termination – where the defendant was required to make payments to the plaintiff under the deed – where the payment mechanisms of the deed provided for payments by a bank pursuant to a cash distribution agreement between the defendant and the bank – where payments were not made in accordance with the deed – whether the defendant is liable to make the payments. CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – PENALTIES AND LIQUIDATED DAMAGES – GENERAL PRINCIPLES – where the parties entered into a deed of settlement and termination – where the deed provides for payment of interest on amounts not paid at a rate of 10.4 per cent per annum – where, after a further period of non-payment, the interest rate increases to 18 per cent per annum thereafter – whether the increase in interest rate from 10.4 per cent to 18 per cent is a penalty.  More...

CONTACT

Brisbane

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

Stephen Burton, Partner
T: +61 7 3135 0604
E: stephen.burton@holdingredlich.com

Suzy Cairney, Partner
T: T: +61 7 3135 0684
E: suzy.cairney@holdingredlich.com

Melbourne

 

Stephen Natoli, Partner
T: +61 3 9321 9796
E: stephen.natoli@holdingredlich.com

Sydney

Tony Britt, Partner
T: +61 2 8083 0497
E: tony.britt@holdingredlich.com

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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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