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Inside track: Construction & Infrastructure

11 February 2019

#Construction & Infrastructure

Inside track: Construction & Infrastructure

In the media 

Contractors stung by collapse of civil construction firm hit out at industry regulator
The company charged with scrutinising building companies in the Territory is broken and should be scrapped, according to contractors stung by the collapse of a pre-approved civil construction firm (06 February 2019).  More...  

IPA: PC endorsement of light-handed regulation welcomed
The PC’s recommendation reconfirms its position since 2002, and Infrastructure Australia’s view in the Australian Infrastructure Plan, that the current regulatory framework is effective and works in the best interest of customers (06 February 2019).  More... 

ABCC launches case against CFMMEU in NT over threats and intimidation
The ABCC has commenced proceedings against the CFMMEU and six of its Queensland-based officials alleging they intimidated NT Worksafe Inspectors and demanded that the head contractor shut down construction at the Palmerston Police Station site (04 February 2019).  More... 

Queensland engineers beware changes in legal responsibilities
Recent changes to the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) mean that engineers can now be held liable for non-conforming building products, legal experts say. Specifically, the QBCC Act was amended to include engineers and architects in the 'Chain of Responsibility' (CoR) for building products (30 January 2019).  More...  

New South Wales

New South Wales coal mine ruled out due to climate change, in landmark court decision
Australia’s coal-lump caressing prime minister won’t speak its name, but a NSW judge has cited climate change in a landmark ruling on Friday, blocking plans to develop an open-cut coal mine in the state’s Hunter Valley region (08 February 2019).  More... 

Sydney council to fight stadium demolition
Waverley Council has voted to launch legal action in the Land and Environment Court on the basis the planning minister approved the new stadium without first determining it would exhibit “design excellence” as required under the Sydney Local Environment Plan (08 February 2019).  More... 

Resources regulator suspends mining lease in state's far-west
A mine in the State’s far-west has been shut down temporarily, after the Resources Regulator suspended the titleholder’s mining lease. The suspension follows the discovery of breaches the mining lease and a determination that the titleholder is not currently a fit and proper person (08 February 2019).  More... 

$170 million transformation for Western Sydney communities
Western Sydney will undergo a liveability upgrade with the announcement today of millions of dollars in projects to revitalise community infrastructure and public spaces. Under Round One of the Western City Liveability Program, eight councils will receive funding for a string of important local projects (05 February 2019).  More... 


Six-laning the Bruce Highway to Steve Irwin Way a step closer
Detailed design to widen the Bruce Highway to six lanes between Caboolture and Steve Irwin Way is about to start, setting the project up for a 2020 construction start date (06 February 2019).  More... 

$130 million to bust congestion
The Morrison Government will invest $130 million to fix traffic headaches at exits on the M1, Mount Lindesay Highway and Ipswich Motorway corridors. The projects will improve the local economy and importantly provide a safer journey home for motorists (07 February 2019).  More... 

Contracts awarded, construction imminent for mega cruise terminal
Port of Brisbane Pty Ltd (PBPL) has announced the principal contractors for its $158 million Brisbane International Cruise Terminal, paving the way for construction to begin in the coming months (04 February 2019).  More... 


$260 million in road infrastructure upgrades for Melbourne
As part of the Federal Government’s $1 billion Urban Congestion Fund, it has announced plans to invest over $260 million in 14 projects designed to ease congestion on Melbourne’s road network. $140 million has been put towards alleviating congestion north and south of the city (08 February 2019).  More... 

Victoria’s booming economy leads the way
Deloitte Access Economics’ December Quarter Business Outlook, which was also released today, says Victoria can expect a rising employment rate and solid business investment growth, led by private engineering, commercial construction and equipment investment (29 January 2019).  More... 

Published - articles, papers, reports 

Economic regulation of airports: draft report
Productivity Commission: 06 February 2019
Sydney, Melbourne, Brisbane and Perth airports have market power in services provided to airlines. This draft report asserts that there is no reason for airport operators to become complacent — further scrutiny of some aspects of airports’ performance is warranted, and tailored reforms are needed to address specific areas of concern.  More...  

Meltdown 2018: Breakdowns at gas and coal plants over 2018
TAI: Posted 01 February 2019
In 2018 there were 135 major breakdowns at gas and coal power stations in the National Energy Market.
While the oldest coal plants were responsible for a large proportion of the breakdowns, newer supercritical plants were also unreliable. There were three breakdowns at one of the newest gas plants. Victoria’s brown coal plants were the least reliable overall.  More... 

Practice and courts

What to expect from the National Construction Code (NCC) 2019
The Australian Building Codes Board (ABCB) recently gave consideration to the content of the 2019 edition of the NCC. NCC 2019 will be available for public preview in February 2019 and will be adopted from 1 May 2019. Some of the key changes from the 2016 edition are described here (30 January 2019).  More... 

New South Wales

New dates for Environmental Planning & Assessment Act updates
Councils, certifiers and other industry practitioners have more time to implement some of the recent EP&A Act updates. Changes affect new provisions for building and subdivision certification, Local Strategic Planning Statements for councils in the Greater Sydney Region and Community Participation Plans. While most of the changes will commence on 1 March 2018, there will be a number of other changes that will involve further design and consultation from mid to late 2018. 


Master Builders Queensland: Minimum Financial Requirements (MFR) reforms
Phase 1:  commenced on 1 January 2019. Existing category 4–7 licensees are to provide their most recent financial statements to the QBCC by 31 March 2019, while all other licenses have until 31 December 2019 to report. Phase 2: The remainder of the reforms will be implemented as part of Phase 2, commencing 1 April 2019 (30 January 2019).  More...  


VBA: Victorian building permit activity for November 2018
The VBA has released building permit activity data for November 2018 (05 February 2019).  More... 


Edgewater Homes Pty Ltd v Donohoe [2019] NSWSC 44
The plaintiffs’ release of the second to eighth defendants released the first defendant from the plaintiffs’ claim for breach of fiduciary duty but not their claim for breach of contract.
EQUITY – fiduciary duty – release by beneficiary of parties who allegedly knowingly received fruits of breach of fiduciary duty and who allegedly were knowingly involved in the breach – whether defaulting fiduciary also released.
CONTRACT – inducing breach of contract – whether release of parties who allegedly induced breach of contract also released party allegedly in breach of contract.
Mr Donohoe’s responsibilities as Building Manager was to approve the payment of invoices rendered to Edgewater by contractors who supplied goods and services to Edgewater.

Civil Mining & Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Limited; Wiggins Island Coal Export Terminal Pty Limited v Civil Mining & Construction Pty Ltd [2019] QCA 12
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PROCEDURAL ASPECTS OF EVIDENCE – EXPERT REPORTS AND EXPERT EVIDENCE – where WICET’s appeal concerned the admission into evidence of Exhibit 31, also referred to as the Vance Measurement – where in general terms WICET complained that Exhibit 31 was admitted into evidence over its objection, and that the document represented a radical departure from CMC’s pleaded case – where the issue between the parties was whether CMC had been delayed overall in completing the earthworks – where WICET, who engaged their expert, Mr Abbott, to produce a productivity analysis to show that CMC was not so delayed – where Exhibit 31, the Vance Measurement, responded to the pleaded case and to Mr Abbott’s report – where Mr Vance simply sought to demonstrate that there were antecedent delays in the period 23 November 2011 to 19 February 2012, by reference to the extra time the works took to complete – where Mr Vance’s calculations were consistent with the pleaded case and relevant to the issues alive on the pleadings – whether the learned trial judge was correct to admit Exhibit 31, the Vance Measurement. 

Santos Limited v BNP Paribas [2019] QCA 11
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS – where the appellant appeals against the primary judge’s dismissal of its application for summary judgment on its claim for payment of a sum said to be due and owing under a performance security given by the respondent – where the primary judge refused summary judgment for the appellant because he found that the appellant had no real prospect of succeeding on its claim and there was no need for a trial – whether the finding was correctly made.
INTERPRETATION – GENERAL RULES OF CONSTRUCTION OF INSTRUMENTS – COMMERCIAL AND BUSINESS TRANSACTIONS – PARTICULAR TRANSACTIONS – BANKING AND FINANCE – INSTRUMENTS – MISCELLANEOUS – where the respondent issued to the appellant a “bank guarantee” in the nature of an unconditional bond to pay money on demand up to a stated maximum amount – where bond requires demand to be “purporting to be signed by an authorised representative” of plaintiff – where bond requires demand to be in form of letter annexed to demand which states under signature line “authorised signatory of Santos Limited” – where letter of demand stated above signature “Santos Limited – GLNG Upstream Project” and under signature a name and the title “General Manager Development” – where principle of strict compliance to be applied intelligently, not mechanically – whether demand was “purporting to be signed by an authorised representative” – whether demand complied with bond. 

Swan v Santos GLNG Pty Ltd & Ors [2019] QCA 6
PLANNING AND ENVIRONMENT – ENVIRONMENTAL LAW – where part of the respondent’s [Santos’] gas pipeline was built on the applicant’s properties – where Environmental Authorities were granted to Santos – where the applicant filed an originating application applying for declarations under s 505 of the Environmental Protection Act 1994 (Qld) that Santos was in breach of various conditions of the Environmental Authorities – where the applicant sought the appointment of an independent expert to report to the court on the extent of the breaches and the rehabilitations required – where the primary judge found that the orders sought at trial were beyond power – where Santos’ expert believed that all recommended rehabilitation had been undertaken except those obligations that required ongoing maintenance – where Santos undertook to continue that ongoing maintenance.
ENVIRONMENT AND PLANNING – COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION – QUEENSLAND – PLANNING AND ENVIRONMENT COURT AND ITS PREDECESSORS – COSTS – GENERALLY – where the applicant was wholly unsuccessful in the proceeding below – where the primary judge ordered the applicant to pay the respondents’ costs of the proceedings on the standard basis or as agreed – where s 457(1) of the Sustainable Planning Act 2009 (Qld) provides that the costs of the proceeding are in the discretion of the Planning and Environment Court – where it was accepted that the general rule that costs follow the event did not apply and instead the non-exhaustive list of considerations in s 457(2) should be considered – where the primary judge observed that the court never ruled against the no case submission – where the court did in fact rule against the no case submission – where the primary judge considered the factor in s 457(2)(d) of whether a party commenced or participated in the proceeding without reasonable prospects of success in light of this error – whether the primary judge erred in ordering the applicant to pay the respondents’ costs of the proceeding on the standard basis. 

Troy Lewis, Partner & National Head of Construction and Infrastructure 
T: +61 7 3135 0614 

Stephen Burton, Partner 
T: +61 7 3135 0604 

Suzy Cairney, Partner 
T: +61 7 3135 0684 

Stephen Natoli, Partner 
T: +61 3 9321 9796 

Kyle Siebel, Partner 
T: +61 3 9321 9877 

Scott Alden, Partner 
T: +61 2 8083 0419 

Christine Jones, Partner 
T: +61 2 8083 0477 

Helena Golovanoff, Partner 
T: +61 2 8083 0443 

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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