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Inside track: Construction & Infrastructure

15 January 2019

#Construction & Infrastructure

Inside track: Construction & Infrastructure

In the media 

There are lessons to be drawn from the cracks that appeared in Sydney's Opal Tower, but they extend beyond building certification
The reasons for the cracked concrete that triggered the evacuation – twice – of residents from Sydney’s Opal Tower over Christmas and the New Year are unknown and will take time to properly establish. Opal is unusual. Very few residential buildings in Australia have ever been evacuated due to construction defects, and fewer still because of structural cracking (10 January 2019).  More... 

Apartment building bust picks up speed, with 'further falls' predicted
Australian construction trends are looking bleak as the number of building approvals fall by almost a third since last year — with the number of new apartment development plans halving (09 January 2019).  More... 

Master Builders: New home approvals at 5-year low as credit crunch bites harder
Building approvals figures for November 2018 published by the ABS indicates that 15,465 new dwellings were approved during the month – a decline of 9.1% on October and almost one third lower than 12 months ago (-32.8%) (09 January 2019).  More... 

When almost 1,700 construction businesses went bust in a year, people like Joe paid the price
Several large corporate collapses in the building industry are causing a world of pain for smaller contractors further down the chain. With the property market busting in Sydney and Melbourne, things are about to get worse (23 December 2018).  More....  

Infrastructure projects dominate new work in November
Infrastructure projects continue to dominate new project work in both quantity and value, according to the latest Cordell Construction Report released by CoreLogic for November 2018 (21 December 2018).  More... 

ABCC welcomes appointment of new Deputy Commissioners
The Minister for Jobs and Industrial Relations, the Hon Kelly O’Dwyer MP has announced the appointment of two new Deputy Commissioners to fill vacant roles within the ABCC (14 December 2018).  More... 

Former exec faces jail for cooking the books at one of Australia's biggest construction firms
The former chief financial officer of construction giant Leighton Holdings, Peter Gregg, is facing up to four years in jail after being found guilty of falsifying the company's books (11 December 2018).  More... 

Infrastructure and services failing to keep pace with new housing growth
Essential infrastructure and services such as public transport, roads, hospitals and schools are failing to keep pace with the delivery of new housing in growth areas of our largest cities, a new report from Infrastructure Australia warns (11 December 2018).  More... 


Golden Plains Wind Farm granted planning permit
The Golden Plains Wind Farm, about 60 kilometres north-west of Geelong, will create hundreds of jobs and generate nearly 3,000 gigawatt hours of electricity per year. The decision may result in a reduction of up to 47 turbines, from 228 to 181, with the number depending on how the proponent chooses to meet environmental restrictions (12 January 2019). More... 

Victoria’s construction sector leads a strong economy
Data released by the Australian Bureau of Statistics shows the value of Victorian building approvals for the year to November 2018 was worth $39.5 billion. For the month of November alone, the value of Victorian building approvals increased by 8.2 per cent to $3.49 billion (09 January 2019). More.... 

New South Wales

New South Wales Government vows to 'throw the book' at dodgy building certifiers after Opal Tower fiasco
Up to 30 per cent of certification work will be audited every year in New South Wales as part of a crackdown on dodgy operators following Sydney's Opal Tower fiasco (30 December 2018).  More.... 

Popular design trends causing urban heat island effect in Sydney
Dark roofs, masonry, lack of shading elements, reliance on artificial cooling, and insufficient greenbelts are some of the urban design mistakes responsible for the urban heat island effect in cities, says Professor Chris Knapp, chair of architecture at Western Sydney University (18 December 2018).  More... 


Queensland's building and construction industry set for further reform in 2019
In 2017, the Palaszczuk Government published the Queensland Building Plan (QBP) which sets out a reform program across the building and construction industry covering everything from building product safety, through to security of payments and the important issue of building certification. 2019 will see a continuation of the implementation of the QBP reforms, and reform to building certification is a key step for 2019 (05 January 2018).  More... 

Cross River Rail Priority Development Area declared
The Queensland Government has declared a Priority Development Area (PDA) as part of the Cross River Rail Project, which will move forward the development of the new underground Albert Street Station. Acting Planning Minister, Stirling Hinchliffe, said the change would cut red tape for the delivery of the station (18 December 2018).  More... 

Published- articles, papers, reports

Cascading deemed statutory trusts in the construction sector
Australian Small Business and Family Enterprise Ombudsman: 18 December 2018
Statutory trusts have been considered and proposed by a number of inquiries as a means of ensuring prompt progress payments to subcontractors, and ring-fencing payments in the event of insolvency of their contractor. The ASBFEO has considered the various arguments for and against cascading deemed statutory trusts and, on balance, supports their implementation in the construction sector.  More... 

ACI Construction Briefs
A fortnightly communication highlighting key updates related to Australia's construction industry (26 November 2018).  More...

In practice and courts

ABCC Alert: Review of the Building and Construction Industry (Improving Productivity) Act 2016
The formal report on the independent review of the Building and Construction Industry (Improving Productivity) Act 2016 was tabled in Federal Parliament on Thursday 6 December, 2018. The review concluded that a cautious approach should be taken to the question of amending the BCIIP Act and 2016 Code A copy of the full report and recommendations and the Australian Government's response can be found here and on the Department of Jobs and Small Business website here. View the complete summary of the review here (14 December 2018). 

NABERS Plans for 2019
Preparation for the inclusion of Commitment Agreements as a Verification Method for office buildings into the National Construction Code 2019 (18 December 2018)


What this means for you Commencement of new security of payment laws (20 December 2018).  

QBCC: Minimum Financial Requirements (MFR)
The new Minimum Financial Requirements (MFR) Regulation will commence on 1 January 2019. The Regulation will operate alongside the current MFR policy, which was introduced in October 2014. These will support the security of payment initiatives within the building and construction industry. Under the new laws, QBCC licensees who hold a contractor grade licence will be required to meet annual financial reporting obligations.  More... 


McCann, in the matter of Walton Construction (Qld) Pty Ltd (In Liq) v QHT Investments Pty Ltd [2018] FCA 1986
CORPORATIONS – Winding up – voidable transactions – uncommercial transactions – purported agreements to “restructure” insolvent companies – agreements designed to benefit insolvency advisers – not reasonably commercial for insolvent company.
CORPORATIONS – Winding up – voidable transactions – uncommercial transactions – identifying transaction “of” the company – relevant transaction linked to other transactions – whether artifice or construct to secure benefit for insolvency advisers.  

Grandview Ausbuilder Pty Ltd v Budget Demolitions Pty Ltd (No 2) [2018] NSWCA 341
CIVIL PROCEDURE – Court of Appeal – application to extend time for compliance with statutory demand for payment JUDGMENTS AND ORDERS – amending, varying and setting aside – Court of Appeal. 

Grandview Ausbuilder Pty Ltd v Budget Demolitions Pty Ltd [2018] NSWCA 336
CIVIL PROCEDURE – Court of Appeal – extension of time to comply with statutory demand for payment CORPORATIONS – statutory demand – claim for offsetting. 

Icon Co (NSW) Pty Ltd v Australia Avenue Developments Pty Ltd [2018] NSWCA 339
ADMINISTRATIVE LAW – Judicial review – adjudicator’s determination – jurisdictional error – scope of payment claim – duty to consider payment claim – scope of claim to be determined by adjudicator.
BUILDING AND CONSTRUCTION – Adjudication of payment claim – review of adjudicator’s determination – whether error in construction of payment claim – respondent alleged adjudicator made allowances in award for amounts not contained in payment claim – whether adjudicator exceeded jurisdiction by determining claim other than that made by claimant – Building and Construction Industry Security of Payment Act 1999 (NSW), ss 20, 22(2) 

Eden Co Construction Pty Ltd v Leed Engineering and Construction Pty Ltd [2018] NSWSC 1882
CONTRACTS - Termination - breach of term - summons seeking leave to appeal judgment for defendant in the Local Court - plaintiff engaged as subcontractor to undertake construction work - where clause of contact provided for procedure to terminate upon breach, including three-day notice period to allow for rectification of breach - plaintiff did not comply with safety policy and directions - where defendant terminated under common law - whether observance of safety policy essential condition or intermediate term - whether clause stipulating procedure for termination excluded common law right to terminate - summons dismissed. 

Monadelphous Engineering Pty Ltd v Acciona Agua Australia Pty Ltd & Anor [2018] QSC 310
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – ADJUDICATION OF PAYMENT CLAIMS – Where the applicant and first respondent entered into a contract for the construction of a project – where the first respondent served a monthly payment claim on the applicant – where that payment claim was disputed – where the first respondent commenced adjudication proceedings under the Building and Construction Industry Payments Act 2004 (Qld) (“the Act”) – where the applicant sought to have the adjudication proceedings restrained – whether the Act applied to the contract – whether the contract was an excluded contract under s 3(2)(c) of the Act. 

Bourne v Queensland Building and Construction Commission (No 2) [2018] QSC 311
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – OTHER PARTICULAR CASES AND MATTERS – Where the respondent paid money to a former client of the applicant’s company pursuant to a statutory insurance scheme – where the applicant owed that money as a debt to the respondent – where the respondent commenced proceedings to recover that debt – where the applicant sought judicial review of the respondent’s decision to commence those proceedings – where the respondent brought an application to have the applicant’s judicial review application dismissed pursuant to s 48 of the Judicial Review Act 1991 (Qld) – where the applicant’s application failed and the respondent’s application succeeded – where the respondent submitted that costs should not follow the event – where the respondent submitted that procedures adopted by the respondent in QCAT proceedings prevented the applicant from challenging the payment made pursuant to the statutory insurance scheme – whether costs ought to follow the event.  

Tucker v Murphy [2018] QDC 264
EQUITY – Equitable set-off – available for cause of action barred by Limitation of Actions Act 1974.
COSTS – Solicitor and client – statutory provision for assessment – whether exclusive mechanism for resolving disputes as to quantum. The company retained the plaintiff in relation to a building dispute which became the subject of a proceeding in the Supreme Court.
Held: Overall, I am not persuaded that the provisions of Division 7 of the 2007 Act on their true construction exclude the jurisdiction of the court to determine whether there has been a breach by the plaintiff of the costs agreement under which it claims remuneration, or indeed, whether the amount of remuneration claimed has been properly claimed in accordance with the terms of that agreement.

Runaway Bay Investments Pty Ltd as trustee for Runaway Bay Investments Unit Trust v GCB Constructions Pty Ltd and Ors [2018] QSC 292
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – OTHER MATTERS – Where an adjudicator determined that an amount of $61,054.44 was to be paid to the builder – where no payment has been made – where an Adjudication Certificate has been obtained – where judgment has been entered in the District Court after making demand for the judgment amount – where an application was subsequently filed for the adjudicator’s decision to be declared void – where the first respondent seeks an order that the disputed amount be paid into Court pending determination of the substantive application – where the substantive application is to be heard on 15 February 2019 – where it is contended that the substantive application is analogous to a proceeding under s 31 of the Building and Construction Industry Payments Act 2004 (Qld) - where the applicant resists this application on the basis that it is unnecessary – whether an order should be made that the disputed amount be paid into Court – whether the substantive application is analogous to s 31 of the Building and Construction Industry Payments Act 2004 (Qld)

Mitchell Water Australia Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [2018] VSC 753
ARBITRATION – Application for adjournment of application to enforce arbitral award pending resolution of applications in the court of the “arbitral seat” (Supreme Court of Queensland) – Commercial Arbitration Act 2011 (Vic), ss 35 and 36 – Commercial Arbitration Act 2013 (Qld), ss 16(9), (11) and 34. 

Cat Protection Society v Arvio [2018] VSC 757
ADMINISTRATIVE LAW – Judicial review – relief in the nature of certiorari – injunctions – declarations – whether Adjudication Determination is vitiated by jurisdictional error – review of jurisdictional facts – Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 56.
BUILDING CONTRACTS – Adjudication Determination – reference dates – nature of payment claim – whether payment claim is ‘final claim’ – significance of a final claim – where construction contract makes no provision for payment claim – whether construction contract ousts default statutory provision for reference dates – where contract is terminated – whether default statutory provision for reference dates applies if construction contract is terminated – Building and Construction Industry Security of Payment Act 2002 (Vic), ss 9, 14.
WORDS AND PHRASES – ‘Deposit moneys ’– ‘de novo hearing’ – ‘final claim’ – ‘final payment claim’ – ‘jurisdictional fact’ – ‘payment claim’ – ‘progress claim’ – ‘reference date’ – ‘retention moneys’.

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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