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News

Renovation activity grows, but new housing activity falls
ABS figures released showed new housing activity in the June 2011 quarter falling while renovation activity continues to grow. Tthe volume of major alterations and additions work done, which accounts for around 20 per cent of total renovations activity, increased by 2.6 per cent (20 October 2011) More...

Outrage at loss of the building industry cop
Building industry groups are demanding the Government review its decision to abolish the Australian Building and Construction Commission (ABCC). This week the Australian Government announced its intention to introduce the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2011 into Parliament which will abolish the ABCC (13 October 2011) More...

New legislation to boost investment in NSW home building
The NSW Liberals and Nationals Government will this week introduce legislation to stimulate investment and activity in the State’s home building industry by urgently addressing a number of shortcomings in the Home Building Act 1989. Work is underway to address the broader issues with the legislation with a thorough review of the Act scheduled in 2012 (11 October 2011) More....

Coal Seam Gas appeal in Land and Environment Court
In what’s being described as an important test case, the is hearing the concerns the Gloucestor Stroud Preservation Alliance, who has lodged an appeal against the approval granted to AGL’s coal seam gas project in the Gloucestor Stroud Valley (17 October 2011) More...

Gas firm sues officials over project refusal
Cougar Energy has filed a $34 million lawsuit in the Queensland Supreme Court alleging negligence and breach of statutory duty when the government stopped the $550m underground gasification project (18 October 2011) More...

Queensland renovation savings in new legislation
One of the aims of the wide ranging bill was to amend the Plumbing and Drainage Act to cut red tape and reduce compliance costs, according to the Local Government Minister. Under the proposed changes, a wider range of works would no longer require council assessment or inspection. Standards will still need to be upheld with the Plumbing Industry Council notified of any works, self assessment carried out (11 October 2011) More...

Positive signs start to emerge for the Building Industry
Master Builders Director of Housing Policy, Paul Bidwell said the latest report sees business sentiment remain in negative territory for the fifth quarter in a row, but optimism is slowly starting to emerge, according to the latest Survey of Industry Conditions report released by Master Builders (20 October 2011) More...

Articles

Guide to Standards - Energy Efficiency
Author: SAI Global: Standards Australia
Provides a snapshot of information on Standards and Certification schemes and covers topics such as:
Good management practice; Climate change; Alternative energy sources including wind turbines and solar energy; Energy efficiency for buildings; Energy efficiency for electrical equipment; and much more. This guide is a valuable resource for organizations who are increasingly faced with the challenges concerning energy efficiency and climate change (10 October 2011) More...

Dispute review boards in Australia: past, present and future
Author: Paula Gerber
Australasian Dispute Resolution Journal, 2011, Vol 22, August, pp180-191

Benefits to the construction industry around the world through the use of dispute review boards (DRBs) - success rates for completion of projects - analysis of the limited use of DRBs by projects .

Practice Notes

Australian Standards - Minor Works Contracts
Minor Works Contracts are contract forms that are intended to be used for construction projects of a simple nature and are best suited for small construction projects only of limited monetary value. AS 4905-2002 provides for administration by a Superintendent (i.e. Administrator or Manager) whereas AS 4906-2002 provides for administration by a Principal (i.e. Owner) More...

Funding for Remote Airstrip Available
All remote airstrip owners can apply for Federal funding for upgrades to improve vital air access to outback communities. These upgrades can include anything from lighting to fixing airstrip surfaces or building animal proof fences. The Program does not cover landside works including terminals, hangars, buildings or commercial developments. Applications close on Thursday 1 December 2011 (19 October 2011) More...

Commercial Building Disclosure program - November 1 lighting tool deadline
The Department of Climate Change and Energy Efficiency has released more information on the expanded Commercial Building Disclosure program. New rules start on 1 November, requiring a lighting assessment of affected office space before it can be sold or leased.

Click here to download the quick guide to CBD.

Click here to access video and presentations from the Department’s recent seminar series. (18 October 2011)

Current Draft Policies and Plans, Announcements

NSW: Expression of Interest (EOI): Councils to join Electronic Housing Code (EHC) project

The Electronic Housing Code (EHC) pilot project management office is looking for 24 additional Councils to join the project. Once interested parties have returned their EOI, an independent selection panel will convene to select the additional Councils. The relevant documents are found on the website (10 October 2011)More...

QLD: Master Builders Roadshow
Rebuilding the building industry one business at a time will be at the top of the agenda as Master Builders sets off on its annual 2011 Roadshow throughout Queensland in November (19 October 2011) More...

QLD: Building and plumbing newsflash number 482 - Proposed plumbing and building reforms and revised pools guideline
Proposed amendments to plumbing and building laws are included in the Sustainable Planning and Other Legislation Bill 2011 (the Bill) introduced into the Legislative Assembly on 11 October 2011 and a new guideline for pool owners and property agents is available (14 October 2011) More...

Cases

Commonwealth

Birdon Pty Ltd v Houben Marine Pty Ltd [2011] FCAFC 126
ADMIRALTY – whether a charter agreement is a construction contract – liability of parties pursuant to an agreement for the hire of a back hoe dredge vessel – whether having invoked federal jurisdiction in proceedings in the Federal Court an adjudication application under a State Act can be pursued – whether the State Act purports to withdraw the Federal Court’s authority to quell a controversy within its jurisdiction – source of rights and remedies in federal jurisdiction – application of surrogate federal laws – maritime claim – admiralty jurisdiction in personam
CONSTITUTIONAL LAW – operation and effect of the Constitution – conflict between State and Federal legislation – whether Part 3 of the Building and Construction Industry Security of Payment Act 1999 (NSW) regarding the enforcement of a statutory claim for progress payments is inconsistent with the institutional integrity of Chapter III Courts – exercise of Commonwealth judicial power
CONSUMER LAW – Australian Consumer Law – misleading and deceptive conduct. More...

New South Wales

Walton v Illawarra [2011] NSWSC 1188
BUILDING AND CONSTRUCTION - contract - interpretation of contract - nature of superintendent’s task - whether contractor’s entitlement to extensions of time and payments are limited to those so determined by superintendent - extent to which liability flowed to principal for superintendent’s failure to adequately perform tasks - DAMAGES - quantification - damages for shortfall between entitlement and superintendent’s valuation- - whether recovery constrained by contract - damages for delay in practical completion - whether loss too remote - entitlement to interest.
Building and Construction Industry Security of Payment Act 1999 (NSW); Industrial Relations Act 1996 (NSW) More...

The City of Sydney v Streetscape Projects (Australia) Pty Limited & Anor [2011] NSWSC 1214
Streetscape Projects (Australia) must deliver up documents and moulds to the City [515] -[543].
Proceedings brought by City of Sydney against Streetscape Projects (Australia) and Mr Moses Obeid in relation to “Smartpole” poles
CONTRACTS - Action for breach of contract - Contractual interpretation - Confidential information - Deeds of variation - Whether particular clauses were penalty clauses - Claim that plaintiffs suffered no loss - Distinction between liquidated damages clause and penalty clause - Damages when proof of loss is difficult - Foreign law- Presumption of identity - Principles for interpreting terms of a contract to avoid capricious consequences
EQUITY - Equitable duty - Duty of confidence - Fiduciary duty - Fiduciary duty under a commercial contract -Accessorial liability - Barnes v Addy
ADMINISTRATIVE LAW - Ultra Vires - Scope of Local Councils authority - Broad interpretation
TRADE PRACTICES CLAIM - Misleading and deceptive conduct - Section 52 Trade Practices Act - Proof of representations - Reliance on representations - Failure to take reasonable care-Section 51A Trade Practices Act - Misleading representation as to future without reasonable basis-No need to prove reliance - Appropriate relief under Section 87 (2) of Trade Practices Act - Varying the terms of a contract for misrepresentation. More...

Buckley v Integrity New Homes (Home Building) [2011] NSWCTTT 436
Meaning of liquidated damages clause where parties agree quantum to be determined by “Dept of Fair Trading” – interpretation and enforceability
Respondent builder liable to pay damages where stipulated date of completion exceeded by 110 days - liquidated damages clause provides mechanism for determining amount payable and is enforceable - damages awarded for accommodation, removal and storage and expert report - other claims dismissed. More...

Nestel v Wesfarmers General Insurance Limited (Home Building) [2011] NSWCTTT 430
Appeal against the denial of an insurance claim - Darryl Millar and Linda Millar have “disappeared” for the purpose of s 99(1)(a) of the Home Building Act 1989 and Regulation 52(3)
Court does not accept that the homeowner must attempt enforcement against the builder outside of New South Wales as a prerequisite to making an insurance claim. More...

Ioannou v Damico & Ors (Home Building) [2011] NSWCTTT 475
A money order for $25,432.00
No contract by trader, trader unlicensed at time of performing work, misleading and deceptive conduct by trader, breach of contract by trader. More...

Queensland

Macarthur Coal Ltd & Anor v MCG Coal Holdings Pty Ltd & Ors [2011] QSC 303
PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – OTHER MATTERS – where the matter was set down for trial – where the second, third and fifth defendants applied to adjourn the trial – where the applicants argued that they could not be prepared for the trial – where the applicants argued that counsel and a solicitor would be unavailable – where the applicants argued there was late and defective disclosure – where the plaintiffs argued that the matter required an urgent trial so that development of the subject coal mine would not be further delayed – where the plaintiffs argued that the applicants were refusing access to the subject land to perform expedition work –whether the trial should be adjourned. More...

Queensland Building Services Authority v Alternate Dwellings Pty Ltd [2011] QCAT 460
Penalty – Exceeding Annual Allowable Turnover – mitigating factors – breach due to failure to understand policy. More...

Barry v Queensland Building Services Authority and Ors [2011] QCAT 451
Building matter – direction to rectify by authority for defective workmanship – where contractor seeks to join property owners and sub-contractor – where allegations actions by property owners affected work – where direction issued to applicant as head contractor. More...

 

Discovery Beach Project Pty Ltd v Northbuild Construction Pty Ltd [2011] QSC 306
ARBITRATION – THE AWARD – EFFECT AND PERFORMANCE – CONCLUSIVENESS OF AWARD – where applicant and respondent had referred various disputes to either arbitration or expert determination arbitrations of building dispute – where arbitrator in a “Final Claim Arbitration” provided for an interim award that would decide all disputes not already in other fora – where arbitrator directed that pleadings, lists of disputes in other fora, and lists of remaining claims be delivered for the purpose of hearing the interim award – where respondent included certain breach of contract claims in its pleadings and included these claims in a table of items to be decided by the interim award – where respondent did not adduce any evidence in support of breach of contract claims or address them in submissions – whether breach of contract claims were determined by the interim award. More...

Western Australia

PERRINEPOD PTY LTD -v- GEORGIOU BUILDING PTY LTD [2011] WASCA 217
Administrative law - ‘Jurisdictional facts’ - Principles - Whether matters in s 31(2)(a) Construction Contracts Act 2004 (WA) are ‘jurisdictional facts’
Administrative law - Whether adjudicator’s exercise of powers under s 31(2) Construction Contracts Act 2004 (WA) amenable to prerogative writs of prohibition and certiorari - Construction of privative clause
Building and construction - Security of payment legislation - Application for review to State Administrative Tribunal pursuant to s 46(1) Construction Contracts Act 2004 (WA) - Construction of s 31 and s 46 - Whether review available where an adjudicator refuses to dismiss an application for adjudication under s 31(2)(a). More....

 

 

 

 



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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