In the media
New ABCC commissioner appointed
The Australian Building and Construction Commission
(ABCC) has appointed a new head following the
resignation of Nigel Hadgkiss in September 2017 after breaching the
Fair Work Act. Stephen McBurney will begin a five-year term as
commissioner from 6 February 2018 (10 January 2018).
More...
MBA: Rise in Approvals Points to Positive Year for
Construction In 2018
Total dwelling approvals increased by 0.9% in seasonally adjusted
terms in November 2017, adding a tenth consecutive month of
positive growth in the approvals data (09 January 2018).
More...
Home buyers to be better protected by Australian-first
defect bond scheme
The Strata Building Bond and Inspections Scheme (the Scheme), the
first of its kind in Australia, provides a structured process to
rectify defects early in the building lifecycle. Developers will
now be required to lodge a building bond, which is equal to two per
cent of the contract price with NSW Fair Trading. For more
information about the Strata Building Bonds and Inspection Scheme,
go to www.fairtrading.nsw.gov.au
(01 January 2018).
More...
New home building scheme comes into
effect
Changes to the NSW Home Building Compensation
(HBC) scheme commence today that will enable
private insurers to enter the market and improve protections for
homeowners against incomplete and defective work. All builders are
required to take out cover under the HBC scheme for residential
building projects costing over $20,000. Each year on average, the
scheme accepts liability for 613 claims, and pays out $82.8
million. For further information visit www.sira.nsw.gov.au (01
January 2018).
More...
Update on the Fire Safety and External Wall Cladding
Taskforce
Six months on, the Cladding Taskforce, comprising representatives
from the Department of Finance, Services and Innovation
(DFSI), the NSW Data Analytics Centre
(DAC), the Department of Planning and Environment
(DPE), Fire & Rescue NSW
(FRNSW), the Office of Local Government
(OLG), Treasury and the Department of Premier and
Cabinet (DPC), has worked to address concerns over
fire safety risks arising from the use of aluminium cladding on
buildings in NSW (15 December 2017).
More...
Australian Bureau of Statistics
09 January 2017 -
Building Approvals, Australia, Nov 2017 (cat no. 8731.0).
Practice and courts
ABCB: Adoption of NCC 2016 Volume One Amendment 1 - Key dates19 January 2018 - The ABCB will release a preview of NCC 2016
Volume One Amendment 1 and the new Evidence of Suitability
Handbook.
12 March 2018 - NCC 2016 Volume One Amendment 1 is scheduled for
adoption by all States and Territories from 12 March 2018.
This amendment is the result of a Building Ministers' direction to the ABCB to expedite completing and adopting actions involving changes to the NCC from a comprehensive package of measures for fire safety in high rise buildings developed following the Lacrosse Apartments fire in Melbourne.
Registration is now open for the 2018 NCC Information
Seminars
In February and March 2018, a representative from the ABCB will be
coming to a capital city near you. Don't miss out on your
opportunity to hear about the following BCA initiatives: NCC 2016
Volume One amendment addressing fire safety; NCC 2019 public
comment draft; The improved CodeMark scheme; and The practical
development and assessment of Performance Solutions. More...
NSW BPB December newsletter
The 'Cert Alert' newsletter is a regular digest of work by
the Board, legislative updates, events, training and consultation
opportunities (21 December 2017). More...
NSW BPB: Certification data reporting software
providers urged to get ready
Providers of specialised building certification software can start
updating their products now to ensure their clients can meet the
new data reporting requirements being introduced for NSW councils
and accredited certifiers (21 December 2017).
More...
NSW BPB: Data reporting certifiers and councils
should start preparing now
To strengthen certification and building regulation in NSW, local
councils and A1-A3 certifiers will soon be required to report
certain data on building certification to the NSW Government (21
December 2017).
More...
NSW BPB: New process for development approvals in mine
subsidence districts
Principal certifying authorities (PCAs) will soon
be able to approve certain developments in mine subsidence
districts (20 December 2017).
More...
NSW BPB: Strata building bond scheme commenced 1 January
2018
The new strata building bond and inspection scheme commenced on 1
January 2018.
More...
Cases
Arambewela v Castle Projects Pty Ltd [2018]
NSWCATAP 14
(1) The application for costs is refused. (2) Each party is to pay
their own costs.
COSTS exercise of the discretion to award costs under r
38(2) of the Civil and Administrative Tribunal Rules 2014 where
proceedings are discontinued.
Access to Neighbouring Land Act 2000 (NSW); Civil and
Administrative Tribunal Act 2013 (NSW); Civil and
Administrative Tribunal Rules 2014 (NSW); Home Building
Act 1989 (NSW); Uniform Civil Procedure Rules 2005
(NSW).
Sam Komadina t/as We Paint Pools v Kelleher [2018]
NSWCATAP 3
(1) Leave to appeal refused. (2) Appeal dismissed. (3) The stay of
the operation of order 2 made on 2 August 2017 in HB 17/15866 is
lifted.
APPEAL: Swimming pool repair orders made in absence of
contractor whether denial of procedural fairness
whether leave to appeal should be granted.
Leung v Alexakis [2018] NSWCATAP
11
(1) The appeal is allowed in part. Home Building Act 1989
s.48MA - preferred outcome principle, applicability to work
done by holder of owner-builder permit. Owner-builder permit -
Authority conferred, liability to successor in title for breach of
statutory warranties, work to which the statutory warranties apply.
Discretion - failure to exercise, effect of preferred outcome
principle in s.48MA on exercise of discretion. Section 48O - nature
and extent of order making power under Home Building Act, effect of
s.48O(2) permitting order even if not sought by applicant.
Civil and Administrative Tribunal Act 2013; Civil and
Administrative Tribunal Rules 2014; Fair Trading Act 1987; Home
Building Act 1989; Home Building Amendment Act 2014; Home Building
Regulation 2004; Home Building Regulation 2014; Interpretation Act
1987; Plumbing and Drainage Act 2011; Work Health and Safety
Regulation 2011.
Denkov v Langov [2018] NSWCATAP
9
Appeal - application for leave to appeal no question of
principle. Civil and Administrative Tribunal Act 2013; Civil
and Administrative Tribunal Rules 2014 (NSW); Home Building Act
1989.
N & T Buildings Pty Ltd v Ball [2017] NSWCATAP
234
APPEAL expert evidence exercise of discretion
appellant unrepresented at hearing. Civil and
Administrative Tribunal Act 2013; Civil and Administrative Tribunal
Rules 2014; Home Building Act 1989.
Younan v Commissioner for Fair Trading [2018]
NSWCATOD 9
HOME BUILDING disciplinary action whether company
of which the applicant was a director failed, without reasonable
cause, to comply with a rectification order - whether applicant
guilty of improper conduct what penalty should apply
COSTS whether special circumstances
respondent acted without jurisdiction in relation to the issuing of
a rectification order.
Champion Homes Sales Pty Ltd v Commissioner for Fair
Trading [2018] NSWCATAP 18
Disciplinary proceedings - "parity principle", meaning
and applicability, different penalties for licensed contractor
company, directors and supervisor. Discretion - error of law,
circumstances in which Appeal Panel can intervene. Civil and
Administrative Tribunal Act 2013; Home Building Act 1989.
Scharer v Giro Construction Group Pty Ltd (in Liq)
(Receiver and Manager Appointed) [2017] NSWSC
1568
APPEAL civil appeal from the NSW Civil and
Administrative Appeal Panel Appointment of Administrator
subsequent voluntary liquidation whether Appeal
Panel omitted to deal with issue of Tribunal's lack of
jurisdiction per s.500 whether the Appeal Panel erred in
law in concluding that it was not necessary to determine whether
s.440D of the Corporations Act applied to proceedings in the
Tribunal whether the Appeal Panel erred in law in
concluding the consent provided by the Administrator was valid for
the purposes of s.440D whether the Appeal Panel erred in
law refusing otherwise to grant leave to appeal from a costs order
made in circumstances where the Senor Member was proceeding under a
material error of fact Appeal Panel erred in law in failing
to deal with "jurisdiction question" raised regarding
s.500 in effect, the Appeal Panel erroneously found the
Tribunal had jurisdiction failure to determine application
of s.440D limited or qualified consent given by the
Administrator in Tribunal proceedings invalid for the purposes of
s.440D leave to appeal granted.
Azzi v Phan [2017] NSWCATAP
215
DISMISSAL OF APPEAL withdrawal of appeal costs
no question of principle.
Civil and Administrative Tribunal Act 2013 No 2 (NSW)
ss 55 and 60; Civil and Administrative Tribunal Rules
2014 r 38A; Home Building Act 1989 (NSW).
Gassman v Peck [2017] NSWCATCD
90
Home Building preferred outcome s48MA
Breach of Statutory Warranty.
Civil and Administrative Tribunal Act 2013; Home Building Act
1989 (NSW); Home Building Amendment Act 2014.
Lal v Jardak Construction Pty Ltd [2017] NSWCATAP
224
Home Building duty to self-represented litigant
costs offer better than result conduct of
proceedings.
Civil and Administrative Tribunal Act 2013 (NSW);
Home Building Act 1989 (NSW).
Ralan (Culworth) Pty Ltd v Owners Corporation SP
83405 [2017] NSWCATAP 223
Home Building late expert evidence taking claim beyond
Tribunal jurisdictional limit exercise of procedural
discretion.
Civil and Administrative Tribunal Act 2013 (NSW);
Home Building Act 1989 (NSW).
Robert Huang and Others v Dong Chen and Anor [2017] NSWSC
1699
CONTRACTS general contractual principles intention
to enter legally binding relations.
CONTRACTS general contractual principles breach
and defences to action for breach non est factum.
EQUITY equitable remedies specific
performance.
McPherson v Mace [2017] NSWCATAP 227
Calderbank offers, whether rejection was unreasonable costs
issues no question of principle. Civil and
Administrative Tribunal Act 2013; Civil and Administrative
Tribunal Rules 2014; Home Building Act 1989;
Legal Profession Uniform Law Application Act 2014.
Rockwall Constructions Pty Ltd v Nayak [2017] NSWCATAP
226
APPEAL jurisdiction right to hearing on the merits
mitigation of loss.
Civil and Administrative Tribunal Act 2013 ss 36, 38, 55,
80, cl 10 Sch 4, cl 12 Sch 4; Civil and Administrative Tribunal
Rules 2014 cl 38A; Home Building Act 1989 ss 48L,
48K; Civil Procedure Act 2005 s 91; Legal Profession
Uniform Law Application Act 2014.
My Stone Tiles Pty Ltd v Ell; My Stone Tiles Pty Ltd v
Allen [2018] NSWCATAP 7
(1) The application for leave to appeal is refused. (2) The Appeal
is dismissed. Australian Consumer Law - Guarantee as to acceptable
quality and fitness for disclosed purpose.
White v Sunrise Pools Australia Pty Ltd [2017] NSWCATAP
236
(1) The appellant is to pay the respondent's costs of this
appeal as agreed or assessed on the basis set out in the legal
costs legislation (as defined in section 3A of the Legal
Profession Uniform Law Application Act 2014).
APPEAL Costs - Home building Application for costs
of appeal by successful respondent - Where amount in dispute more
than $30,000 Principle that costs follow the event
Whether Calderbank offer made Whether the question of
whether there was a need for the parties to be legally represented
is relevant to the exercise of the costs discretion.
LEAVE TO APPEAL Where application for leave to appeal from
costs decision at first instance already determined.
Civil and Administrative Tribunal Act 2013 (NSW);
Home Building Act 1989 (NSW); Civil and Administrative
Tribunal Rules 2014 (NSW).
Nutek Constructions Pty Ltd v Slotwinski (No 2) [2017]
NSWSC 1814
Freezing order granted. CIVIL PROCEDURE Interim
preservation Freezing orders.
Home Building Act 1989 (NSW); Uniform Civil Procedure
Rules 2005 (NSW) r 25.14.
Nutek Constructions Pty Ltd v Slotwinski [2017] NSWSC
1795
Freezing order set aside. INJUNCTIONS freezing order
obtained ex parte in aid of proceedings at NCAT whether
material matters not disclosed whether freezing order
should be set aside - Home Building Act 1989 (NSW).
Legislation
Regulations and other miscellaneous
instruments
Administrative
Arrangements (Administration of Acts Amendment No 4) Order
2017 (2017-756) published LW 22 December
2017.
Home
building compensation (business plan) insurance guidelines
(2017-736) published LW 22 December 2017.
Home
building compensation (claims handling) insurance guidelines
(2017-737) published LW 22 December 2017.
Home
building compensation (eligibility) insurance guidelines
(2017-738) published LW 22 December 2017.
Home
building compensation (premium) insurance guidelines (2017-739)
published LW 22 December 2017.
Home
building compensation (prudential) insurance guidelines
(2017-740) published LW 22 December 2017.
Licensee
application guidelinesHome building compensation
regulation (2017-741) published LW 22 December
2017.
Statute
Law (Miscellaneous Provisions) Act (No 2) 2017 (NSW)
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.