In the media

Coal lobby to disband, join MCA
The Australian Coal Association (ACA) is set to announce that it is disbanding, with the mining industry set to streamlining its lobbying under the banner of the Minerals Council of Australia (MCA). Under a plan to be released, ACA members will be represented through an expanded MCA (23 August 2013).  More...

Calculated and co-ordinated campaign costs QLD unions $119k in FWBC case
The Federal Court at Brisbane today handed down judgment in an FWBC case, ordering the CFMEU and CEPU to pay penalties totalling $119,000 for what the judge called a ‘calculated and co-ordinated campaign’ against construction company, Watpac (20 August 2013).  More...

Australia’s First Infrastructure Sustainability as a Built Rating announced
The ISCA has  formally awarded Australia’s first certified IS As Built rating to the City East Alliance team who delivered the Great Eastern Highway Upgrade on behalf of Main Roads Western Australia in Perth yesterday (16 August 2013).  More...

Westpac–BREE joint publication outlines Chinese developments
The Bureau of Resources and Energy Economics (BREE) and Westpac Institutional Bank (Westpac) have jointly launched the  Westpac–BREE China Resources Quarterly, which is intended to become the primary reference point for decision makers seeking to understand developments in the Chinese economy, with special reference to the resources and energy sectors (15 August 2013).  More...

NSW housing construction at a ten year high
The number of new homes being built in Sydney has jumped by more than a third in a year hitting a ten year high. This is a 35% increase on the previous year, and the highest figure since 2003/04 (24 August 2013).  More...

Brookfield to build new $123 million science facility at UNSW
Brookfield Multiplex has been appointed to design and construct the University of New South Wales’ (UNSW) $123 million Material Sciences and Engineering Building at the Kensington campus in Sydney (20 August 2013).  More...

Contracts: Clarke Energy to build cogen plant for CSU
Clarke Energy has been awarded a contract to engineer, install and maintain a cogeneration plant at Charles Sturt University in Bathurst, New South Wales. The university plans to achieve a 25 per cent reduction in energy consumption through the cogen system, which will help its goal to become carbon neutral by 2015 (22 August 2013).  More...

Government goes for gold with green building programs
The NSW government has set strong NABERS targets for commercial buildings as part of a raft of policies designed to deliver energy savings of around $5.2 billion for the state and inject confidence in the green building sector, with the release of a new Energy Efficiency Action Plan (19 August 2013).  More...

Green light for new Qld building industry regulator
Parliament has passed legislation to allow the creation of the Queensland Building and Construction Commission (QBCC) to replace the Queensland Building Services Authority (BSA). The authority will be responsible for licensing, dispute resolution and the Home Warranty Scheme, with internal divisions firewalled from each other to prevent any conflict of interest (23 August 2013).  More...

AMP buys into Qld school build project
The AMP Capital Community Infrastructure Fund (CommIF) has acquired a 49.99% stake in the South East Queensland Schools Public Private Partnership (PPP) project from the Commonwealth Bank of Australia (20 August 2013).  More...

Ports back to pre-GFC coal volumes
Queensland’s coal passing through the major ports has returned to pre-GFC and pre-flood production in a further sign of a strengthening economy. ports and transport infrastructure are responding to the increased volumes and this is a healthy sign for one of our major export commodities, according to the Transport and Main Roads Minister (22 August 213).  More...

In practice and courts

National Consultations
Closing date for comments to the Australian Building Codes Board on Draft Handbook: Condensation in Buildings - Information Handbook – 02 September 2013.

Closing date for comments to the Productivity Commission on Draft Report - Major Project Development Assessment Processes  - 13 September 2013.

The Building Australia's Future Conference, 15-18 September 2013
The Australian Building Codes Board, together with Master Plumbers Australia and the Australian Institute of Building Surveyors, will jointly deliver the pre-eminent national construction industry conference of 2013.  More...

International Symposium for Next Generation Infrastructure, 1-4 October 2013
SMART Infrastructure Facility at the University of Wollongong will shortly welcome the international infrastructure community as they host the International Symposium for Next Generation Infrastructure (ISNGI).  More...

Australian National Conference on Resources and Energy, 3- 4 October 2013
The conference will provide an opportunity to showcase leading-edge Australian and international research on key issues such as the global gas revolution, China’s growth prospects, the community licence to operate, Indigenous communities and mining, renewable energy developments and also energy efficiency.  More...

OHS Certification Australia Card: Deadline looms for high risk work licence conversions
SafeWork SA Inspectors are focussing on high risk work and reminding workers to convert their old qualifications to the national licence for scaffolding, rigging, dogging, cranes, hoists and pressure equipment and/or a Notice of Satisfactory Assessment (NSA) for forklifts. (22 August 2013).  More...

FPA: Good Practice Guide on the adoption and use of AS 1851-2012
AS 1851 is the Australian Standard for the routine servicing of fire protection systems and equipment. A comprehensive revision of this standard was released in December 2012. Non members can view an extract of the guide from the technical documents page of the FPA Australia website. Members can download the complete good practice guide from CONNECT (14 August 2013).

VIC : Tenders Victoria
The Closing date for expressions of interest to Tenders Victoria for stage one of the East West Link Project is 29 August 2013.

Cases

Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2013] FCA 846
INDUSTRIAL LAW – ss 43(1)(b), 44 and 69(1)(b) Building and Construction Industry Improvement Act 2005 (Cth) – pecuniary penalties – industrial action – coercion – intent to apply undue pressure – unauthorised work stoppages – admitted contraventions of statutory provisions by unions – union liability arising on account of conduct of union officials – agreed penalties – appropriate penalties within permissible range – application of totality principle where multiple contraventions of legislation – specific deterrence particularly relevant factor for consideration in relation to one of the respondents.  More...

Construction Forestry Mining & Energy Union v Mammoet Australia Pty Ltd [2013] HCA 36
Industrial law (Cth) – Payments relating to periods of industrial action – Where employer provided employees with accommodation under enterprise agreement – Where employees took "protected industrial action" within meaning of s 408 of Fair Work Act 2009 (Cth) ("Act") – Where employer ceased to provide accommodation to employees for duration of "protected industrial action" – Whether provision of accommodation a "payment to an employee in relation to the total duration of the industrial action" under s 470(1) of Act.  Industrial law (Cth) – Enterprise agreement – Whether employees entitled to accommodation under terms of enterprise agreement when not ready, willing and available to work. Appeal allowed.  More...

NSW Land and Housing Corporation -v- DJ's Home and Property Maintenance Pty Ltd (in liquidation) [2013] NSWSC 1167
Fund to be disbursed as to $20,000 to the Plaintiff, $3,000 to the Fourth Defendant and the balance to the Liquidators.  CORPORATIONS - Winding up - Corporations Act 2001 (Cth) ss 500(1), 501, 569(1) - BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 (NSW) Div 2A ss 26A, 26B, 26C ("the SoP Act") - Contractors Debts Act 1997 (NSW) ss 5, 6, 7, 8, 9(1), 11(1) ("the CD Act") - whether service of a payment withholding request under s 26A of the SoP Act on a company creates a charge over the monies retained in favour of the claimant - Held no charge created - whether service of a payment withholding request is an attachment put in place against the property of the company within s 500(1) of the Corporations Act - Held: that it is - whether the obtaining of a debt certificate under s 7 of the CD Act and service of a notice of claim under s 8(1) of the CD Act is the institution of proceedings to attach a debt due to a company within s 569(1) of the Corporations Act - Held that it is - whether payment out of monies retained as a consequence of the service of a payment withholding request under the SoP Act to the unpaid person as a consequence of the service of a notice of claim is an amount received by the creditor as a result of the attachment - Held that it is.  Corporations Act 2001 (Cth); Building and Construction Industry Security of Payment Act 1999 (NSW); Contractors Debts Act 1997 (NSW).  More...

In the matter of Pioneer Energy Holdings Pty Ltd [2013] NSWSC 1134
The total price payable for a transfer of shares under clause 7.6(b)(i) of the Shareholders Agreement is $1. Clause 7.6(b)(i) is a penalty.  [CONTRACTS] - where parties in a commercial joint venture project for development of maritime fuel facility - where Shareholders Agreement governs funding of project - where one of the joint venturers in funding default - construction of Shareholders Agreement - whether non-defaulting party entitled to compulsory transfer of all the shares of the defaulting party for $1 - or for $1 per share [PENALTY] - whether compulsory transfer for $1 constitutes a penalty.  More...

Gray t/as Clarence Valley Plumbing Services v Ware Building Pty Ltd [2013] NSWCA 271
APPEAL AND NEW TRIAL - procedural fairness - where request for adjournment and transfer of trial to another location refused - where defendant (now appellant) did not attend - whether violation of the hearing rule established.  CONTRACT - construction of clause giving rise to an election to terminate on a insolvency event - whether there was anything that indicated the defendant (now appellant) was or would be insolvent at the relevant time - whether contract validly terminated.  EVIDENCE - where evidence adduced ex-parte - where evidence is comprised of hearsay - whether evidence should be given less weight.  Building and Construction Industry Security of Payment Act 1999.  More...

Valuer-General v Perilya Broken Hill Ltd [2013] NSWCA 265
APPEALS - appeal from valuation decision limited to question of law - scope of appeal - error of law in failure to bring to account cashflow - no error of law in arithmetic error.  COURTS AND JUDGES - statement of reasons for decision - appeal limited to question of law - extent of duty to give reasons - no error in giving short reasons.  MINES AND MINERALS - operation and history of mining legislation - nature of rights conferred by mining lease - nature of rights of owner of privately owned minerals.  VALUATION - methods of valuation - hypothetical fee simple of mine - valuation by discounted cashflow of hypothetical mine - application of royalty provisions in Mining Act 1992 as generally applicable public law - parties' cashflows included royalty payments as expenses but did not include receipts of royalty for privately owned minerals - valuation set aside and proceeding remitted – appeal allowed.  More...

AWX Constructions Pty Ltd v IDH Modular Pty Ltd & Anor [2013] QSC 218
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – SUBCONTRACTORS’ CHARGES ACT (QLD) – where the first respondent was engaged as subcontractor for the supply of modular housing for the purpose of the head contract – where the respondent claimed a charge over money payable under the head contract pursuant to the Subcontractors’ Charges Act 1974 (Qld) – where the applicant applies pursuant to s 21 of the Act for an order that the claim of charge be cancelled – whether the issues may be disposed of summarily.  CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – where the first respondent was engaged as sub-contractor for the supply of modular housing for the purposes of the head contract – where s 42 of the Queensland Building Services Authority Act 1991 (Qld) prohibits undertaking to carry out building work without the appropriate licence – where the respondent was licensed – whether the subcontract required the respondent to engage in building work.  More...

Civil Mining & Construction P/L v State of Qld [2013] QSC 214
ARBITRATION – THE AWARD – APPEAL OR JUDICIAL REVIEW – PROCEDURE – APPEALS AND LEAVE TO APPEAL – LEAVE TO APPEAL FROM DECISION OF ARBITRATOR – QUESTION OR ERROR OF LAW – where the applicant applies for leave to appeal an interim award under a contract for road construction works – where variations were claimed in relation to a change in statutory requirement and subgrade treatments – whether manifest error of law – whether discretion to grant leave should be exercised.  More...

WP & SB v Raceberry Pty Ltd [2013] QCAT 330
Home Warranty Insurance Scheme – where the insurance policy imposes and obligation on a homeowner to properly terminate the contract before the policy will respond to the claim – whether the contract was terminated lawfully under the contract – whether the contract was terminated otherwise at law – whether applicants elected to accept the builders repudiation – whether claim made in time.  CGM investments Pty Ltd v Chelliah (2003) 196 ALR 548; Marminta Pt Ltd v French [2003] QCA 541; Immigration, Local Government & Ethinic 2 Affairs, Minister for v Kutovic (1990) 92 ALR 93 at 108 Queensland Building Services Authority v Fox [2005] QDC 129 Shevill v Builders Licensing Board (1982) 149 CLR 620 at 625 Cheshire.  More...

Raptis v Queensland Building Services Authority [2013] QCAT 279
Extension of time – whether financier breached the terms of the finance facility in appointing an administrator to a company of which the applicant was a director – whether the appointment of the administrator was unlawful – whether the Tribunal has jurisdiction to consider the validity of the appointment in determining whether there has been a “company event” – whether an application about the validity of the appointment should be made to a court under the Corporations Law – consideration of whether the decision maker can consider the validity of the appointment.  More...

Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [No. 3] [2013] VSC 435
ARBITRATION – Stay application under s 8 of the Commercial Arbitration Act 2011- s 8 considered – Stay granted in part.  BUILDING CONTRACT - Clause 42 of Australian Standard Contract AS4300–1995 contract considered.  PRACTICE AND PROCEDURE - Summary judgment sought pursuant to s 63 of the Civil Procedure Act 2010 or Order 22 of the Supreme Court (General Civil Procedure) Rules 2005 - Applicable test for summary judgment under the Civil Procedure Act 2010 determined by the Court of Appeal on a reference pursuant to s 17B(1) Supreme Court Act 1986 [2013] VSC 201 and applied.  More...

Legislation

NSW

Proclamations commencing Acts
Energy Services Corporations Amendment (Distributor Efficiency) Act 2013 No 33 (2013-445) — published LW 23 August 2013.
Evidence Amendment (Evidence of Silence) Act 2013 No 9 (2013-446) — published LW 23 August 2013.

Bills passed by both Houses of Parliament
Road Transport Amendment (Obstruction and Hazard Safety) Bill 2013
.

Contact details

Melbourne

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

Sydney

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

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  

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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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