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Residential Focus

13 September 2023

7 min read

#Property, Planning & Development

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Residential Focus

In the media

Build to rent needs institutional investment, housing minister says
Housing Minister Julie Collins says there is a “realistic prospect” of establishing build-to-rent real estate as a “significant new investment asset class” with the federal government now considering several reforms to encourage financing (11 September 2023).   Read more here.

Australia is in a housing crisis and experts say the solution is building up, not out
Last month, federal, state and territory governments announced a commitment to build 1.2 million new homes in five years from July next year. However, the NSW government has flagged allowing higher and denser development if developers commit to setting aside 15 per cent for affordable housing (7 September 2023).  Read more here.

Coffs Harbour’s Argyll Estate rezoning proposal scrapped by NSW government over social housing numbers
The New South Wales Housing Minister has moved to scrap plans that could have created nearly 500 new homes in Coffs Harbour on the state's mid-north coast, saying the proposal did not deliver enough social housing. The Argyll Estate rezoning proposal would have resulted in the 127-home social housing estate being transformed into a mixed-density development (7 September 2023).  Read more here.


Change to penalties and union right: a risk to the residential building industry?
The Closing Loopholes Bill, introduced into Federal Parliament on Monday, 4 September 2023 risks acting as a “disincentive to run a business particularly a small business in the residential building industry” stated Jocelyn Martin, Housing Industry Australia Managing Director. The Bill proposes increasing penalties for non-serious breaches of workplace laws to nearly $1 million (7 September 2023).  Read more here.

Industrial Relations Bill opposed by the Master Builders
Master Builders Australia (MBA) calls for Parliament to oppose the industrial relations Bill that “takes the sledgehammer to tradies” right across the country, says MBA CEO Denita Wawn. MBA is now in the process of combing through the legislation and will respond to specific elements of the Bill over the coming days (4 September 2023).  Read more here.


Khouri v Commissioner for Fair Trading [2023] NSWCATOD 135
ADMINISTRATIVE LAW - Owner Builder Permit – s 32(1A) Home Building Act - special circumstances - dual occupancy.

Administrative Decisions Review Act 1997 (NSW); Home Building Act 1989 (NSW); Standard Instrument (Local Environmental Plans) Order 2006; Fairfield Local Environmental Plan 2013.

Kalloghlian v Mitry [2023] NSWCA 198
COSTS — Party/Party — Orders against non-parties — Personal costs orders against lawyers — where applicant was defendant/cross-claimant in substantive proceedings resolved by consent — where motion seeking personal costs order against solicitor dismissed — where case below put on basis that defence was woefully prepared — where case on appeal put on basis that lawyer omitted to advise applicant that claim should never have been defended — whether s 99 of the Civil Procedure Act 2005 (NSW) satisfied — whether correct test applied.

Civil Procedure Act 2005 (NSW); Contracts Review Act 1980 (NSW); Home Building Act 1989 (NSW); Uniform Civil Procedure Rules 2005 (NSW).

Tanbuz v Commissioner for Fair Trading [2023] NSWCATOD 134
ADMINISTRATIVE REVIEW – licencing – whether fit and proper person – past convictions – failure to disclose all past convictions - whether rehabilitated – effect of parole.

Administrative Decisions Review Act 1997; Civil and Administrative Tribunal Act 2013; Home Building Act 1989.

Read v Gitman [2023] NSWDC 330
TORT – Defamation – Plaintiff is the chair, secretary and treasurer of the owners committee of a small apartment block – Three publications by the strata manager to owners, a tenant and unit managers concerning her conduct of strata matters – Qualified privilege at common law – Malice – Defence of justification to one imputation – Damages.

Defamation Act 2005 (NSW), ss 10A, 34, 35, 38, 39; Home Building Act 1989 (NSW), ss 3, 4, 10, 92(1)(a); Property and Stock Agents Act 2002 (NSW), ss 3B(1), 8(1), 32(1), 86(1), 103(3), 104(1)(a); Property Stock and Business Agents Regulation 2014 (NSW); Strata Schemes Management Act 2015 (NSW), ss 30(4), 33(2), 178(1)(c), Schedule 1, ss 11, 21; Uniform Civil Procedure Rules 2005 (NSW), rr 17.6, 31.10

Singh v Zamaneh [2023] NSWCATAP 248
APPEALS – error on a question of law – denial of procedural fairness not established - no misapplication of law.

Civil and Administrative Tribunal Act 2013 (NSW) sections 36 (3), 80 (2), Schedule 4 Clause 12 (1); Home Building Act 1989 (NSW) sections 4, 7, 18B, 92 and 94.

Zhan v Commissioner for Fair Trading [2023] NSWCATOD 130
OCCUPATIONAL – owner builder permit - s32(1A) Home Building Act - no special circumstances established – no financial hardship established - dual occupancy.

Administrative Decisions Review Act 1997 (NSW) Home Building Act 1989; Standard Instrument (Local Environmental Plans) Order 2006.

Rauf v Vartanian; Vartanian v Rauf [2023] NSWCATAP 238
APPEALS- BUILDING AND CONSTRUCTION – contract not in writing –need to prove loss or damage arises - new decision substituted.

Civil and Administrative Tribunal Act 2013 (NSW); sections 36 (1), (2),(4), 38 (2), (5), 80, Schedule 4 clause 12 (1).

Promina Design & Construction Pty Ltd v The Owners – Strata Plan No 97449 [2023] NSWCATAP 252
BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) s 48K — Jurisdiction of the Civil and Administrative Tribunal — Claim for breach of statutory warranty — Section 48K(3) does not limit the Tribunal’s jurisdiction in respect of claims for breach of statutory warranty — Civil and Administrative Tribunal Act Schedule 4 clause 6 — Power of the Tribunal to transfer proceedings to a court — The Tribunal has power to transfer proceedings to a court even where the Tribunal has no jurisdiction in respect of the claim — Consideration of the circumstances in which it will be appropriate to order the transfer of proceedings.

Civil and Administrative Tribunal Act 2013 (NSW) Sch 4 cl 6; Consumer Trader and Tenancy Tribunal Act 2001 (NSW); Design and Building Practitioners Act 2020 (NSW); Home Building Act 1989 (NSW) ss 18B, 18C, 18D, 18E, 48K, 48L; Home Building Act Amendment Act 2011 (NSW); Home Building Act; Amendment Act 2014 (NSW); Interpretation Act 1987 (NSW); Statute Law (Miscellaneous Provisions) Act 2012 (NSW).

Votraint No. 1019 Pty Ltd v Zauner Construction Pty Ltd [2023] NSWSC 1055
EVIDENCE – expert evidence – expert report on alleged defects in construction of houses – where defects have been rectified – where expert no longer available for cross-examination – whether Court should make advance ruling under s 192A of the Evidence Act 1995 (NSW) – whether Court should grant leave to plaintiff under r 31.29(5) of the Uniform Civil Procedure Rules 2005 (NSW) to tender report.

Civil Procedure Act 2005 (NSW); Evidence Act 1995 (NSW); Home Building Act 1989 (NSW); Uniform Civil Procedure Rules 2005 (NSW).

Crystele Designer Homes Pty Ltd v Wood [2023] NSWCATAP 242
APPEALS — Appeal on question of law – Scope of question of law

APPEALS — From exercise of discretion — Acting on the wrong principle

APPEALS — Leave to appeal — Principles governing – Leave to appeal refused

BUILDING AND CONSTRUCTION – Residential building work – Statutory warranties under Home Building Act 1989 (NSW) – Claims by owner against builder – Whether single cause of action for breach of contract – Whether amendments to introduce new defects more than two years after completion of building work should be permitted – Money order made against the builder.

Civil and Administrative Tribunal Act 2013 (NSW), ss 60, 80, 81, Sch 4, cl 12; Civil and Administrative Tribunal Rules 2014 (NSW), r 38A; Civil Procedure Act 2005 (NSW), s 65; Home Building Act 1989 (NSW), ss 3B, 18B, 18E, 48A, 48K, 48MA, 48O.

The University of Sydney v Multiplex Constructions Pty Ltd (No 2) [2023] NSWSC 1019
CIVIL PROCEDURE – Technology and Construction List Statement – application to amend – proposed contentions against sixth defendant concerning breach of common law duty of care and misleading or deceptive conduct.

Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law.

Design and Building Practitioners Act 2020 (NSW).

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 newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

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