23 April 2018
23 min read
#Property, Planning & Development
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High Court finds NCAT doesn’t have jurisdiction over disputes between residents of two states
The High Court of Australia has handed down its decision in Burns v Corbett; Burns v Gaynor [2018] HCA 15, finding that the New South Wales Civil and Administrative Tribunal (the Tribunal) does not have the jurisdiction to deal with a dispute arising between two residents of different states. The High Court upheld the decision of the New South Wales Court of Appeal, which determined that the Tribunal is not a “Court of a State” under Chapter III of the Commonwealth Constitution (Constitution). A summary of Burns v Corbett; Gaynor v Burns [2017] NSWCA 3 is available here.
Relevant legislation
Section 39(2) of the Judiciary Act 1903 (Cth) (Judiciary Act) provides, relevantly, that “Courts of the State” have federal jurisdiction in all matters in which the High Court has original jurisdiction. Pursuant to s75(iv) of the Constitution, the High Court has original jurisdiction in all matters “between States, or between residents of different States, or between a State and a resident of another State”. Section 76 of the Constitution empowers the Commonwealth Parliament to make laws conferring additional original jurisdiction on the High Court to determine certain other matters, and section 77 gives the Parliament the power to make laws defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States, and investing State courts with federal jurisdiction.
Decision
The High Court of Australia unanimously dismissed the five appeals from the Court of Appeal’s decision. It is relevant to note that it was common ground in the Court of Appeal matter that the Tribunal was not a Court of a State and that the Tribunal was exercising state judicial power.
The Attorney-General of the Commonwealth’s primary argument was that there is an implied constitutional constraint on State legislative power, meaning a State law is invalid to the extent it purports to confer the judicial power found under sections 75 and 76 of the Constitution on a court which is not a “Court of the State”. In the alternative, the Attorney-General argued that such a law would be inconsistent with s39(2) of the Judiciary Act and therefore invalid by operation of s109 of the Constitution.
The High Court unanimously dismissed all five appeals, with the majority finding that Chapter III of the Constitution clearly means the powers conferred by sections 75 and 76 of the Constitution may not be exercised by any court other than a “Court of the State” within the meaning of Chapter III.
The majority of the High Court (Kiefel CJ, Bell and Keane JJ, with Gagelar J concurring generally) found:
Sections 28(2)(a) and (c), 29(1) and 32 of the NCAT Act are invalid to the extent that they purport to confer jurisdiction upon [the Tribunal] in relation to the matters between Mr Burns, and Ms Corbett and Mr Gaynor. Pursuant to s 31 of the Interpretation Act 1987 (NSW) they may be read down to avoid that conclusion so that they do not confer jurisdiction upon [the Tribunal] where the complainant and the respondent to the complaint are "residents of different States" within the meaning of s 75(iv) of the Constitution.
Further, Nettle, Gordon and Edelman JJ agreed with the Attorney-General’s alternative line of argument, holding that the Tribunal is prohibited from resolving a dispute between residents of different States due to section 39 of the Judiciary Act.
Does this apply to corporations?
While this decision clarifies the Tribunal’s inability to resolve disputes between residents of different States, it does not address whether this rule would also extend to a dispute between two corporations operating out of different states or a dispute between a corporation and an individual resident of different states.
NSW Government begins public consultation on changes to strata building bond and inspections scheme
The NSW Government is inviting public comment on proposed changes to the strata building bond and inspections scheme (the Scheme) which was introduced on 1 January 2018. The Scheme, which is established by Part 11 of the Strata Schemes Management Act 2015 (NSW) (the Act), was introduced to incentivise developers to address building defects early and quickly. In particular, it requires developers to pay a building bond equivalent to 2% of the contract price for the building work to the Secretary of the Department of Finance in order to secure funding for the rectification of any building defects. More information on the Scheme can be found here.
The draft Strata Schemes Management Amendment (Building Defects Scheme) Bill 2018 (the Bill) introduces a raft of amendments to the Scheme. All members of the public, in particular industry members and stakeholders, are invited to submit feedback on the Bill. Comments must be made in writing to stratabond@finance.nsw.gov.au by 11 May 2018.
Proposed changes under the Bill
The proposed amendments addressed by the Bill include:
Penalties
Home Building Amendment (Cladding) Regulation 2018 commences
The Home Building Amendment (Cladding) Regulation 2018 (NSW) (Regulation) commenced on 20 April 2018. The Regulation amends the Home Building Regulation 2014 (NSW) by inserting a new clause 69A which updates the definition of “major defect” in section 18E(4) of the Home Building Act 1989 (NSW) (the Act).
Clause 69A provides that if the external cladding of a building causes or is likely to cause a threat to the safety of any occupants of the building if a fire occurs in the building, that defect is prescribed as a major defect.
What does this mean?
Defects that fall within the definition of a “major defect” now benefit from an extended warranty period of six years under section 18E of the Act. The definition of “major defect” in section 18E(4) requires, among other things, the defect to be present in a “major element” of the building. As a result of the Regulation it is no longer necessary to establish that the cladding concerned is a major element of the building.
It is important to note that clause 69A only applies in respect of a breach of statutory warranty:
(a) if the warranty period for the breach starts on or after 20 April 2018; or
(b) if the warranty period for the breach started before 20 April 2018, if the period in which proceedings could be commenced for the breach of statutory warranty had not already expired by 20 April 2018.
Editorial: Christine Jones, Eleanor Grounds & Christopher Yong
Dodgy builders will have to take tests to keep licenses in Canberra
Problem builders will be forced to undergo skill and technical knowledge tests under a stricter licencing regime being introduced next year, as the ACT Government moves to crack down on poor quality in the building industry (15 April 2018). More...
HIA: States and Renters in Capital Gains Tax Firing Line
According to research released today, an increase in Capital Gains Tax would result in a $1bn reduction in revenue to state Governments, increase the cost of renting and exacerbate the housing affordability challenge, stated Tim Reardon, HIA’s Principal Economist (15 April 2018). More...
Flammable cladding prompts Melbourne lawyers to prepare for class action over 'ticking time bomb' buildings
Lawyers are preparing a class action against construction companies who have installed dangerous combustible cladding on buildings, in a move a Melbourne law firm has dubbed a "Goliath versus Goliath" battle (11 April 2018). More...
New South Wales
NSW to harness power of water for energy
The Minister for Energy and Utilities, Don Harwin, today announced the NSW Department of Planning and Environment is entering into a partnership with WaterNSW to help boost the state’s energy security, seeking interest from private companies to look at both large and small-scale opportunities utilising our WaterNSW infrastructure (19 April 2018). More...
Plans to revitalise Gosford
The NSW Government has released plans that will improve Gosford’s commercial, retail, lifestyle and cultural life. The NSW Government Architect has provided recommendations to revitalise Gosford’s city centre, with Kibble Park as the “civic heart” of the city (18 April 2018). More...
Social enterprise real estate agency launches in Sydney
A real estate agency launched in Sydney last week aims to change the game on affordable housing by connecting those in need with investment property owners keen to be part of the solution (17 April 2018). More...
Georgious secures $40 million contract in NSW
National building construction, engineering and property development company Georgiou Group has been awarded the New England Highway Upgrade (17 April 2018). More...
Strata legislative changes should clarify mixed use buildings
The proposed amendments to the Strata Act clarify a number of issues but raise further concerns about the practical implementation of the building defects scheme, says Urban Taskforce CEO, Chris Johnson (13 April 2018). More...
NSW Won’t be Held to Ransom on Light Rail
NSW Premier Gladys Berejiklian says her government won't be held to ransom by a Spanish subcontractor building the delayed Sydney light rail project to the eastern suburbs (10 April 2018). More...
Delivering better road infrastructure for a future Dubbo
Member for Dubbo Troy Grant today announced the Dubbo community is set to benefit from a raft of road infrastructure improvement projects which will provide the city with improved travel times and better safety and connectivity (06 April 2018). More...
New South Wales
Reminder: Public submissions on cladding
Submissions are being sought about a range of issues set out in the Notice issued by the Commissioner. The call is seeking input about the kinds of issues that should be considered including the range of uses of products, uses on different types of buildings, and by different people, and whether any conditions should be attached to product uses. Submissions closed on 23 April 2018. More information about cladding and the call for submissions can be found at www.fairtrading.nsw.gov.au. More....
NSW Infrastructure Grants for community projects
Local communities can apply for a share of $12.5 million in funding for projects across arts and culture, emergency preparedness and sport and recreation. Applicants have four opportunities to apply for grants throughout the year: February and May 2018. The new funding guidelines will mean the government can fund a wider range of projects. More...
Stone v Melrose Cranes & Rigging Pty Ltd, in the matter of Cardinal Project Services Pty Ltd (in liq) (No 2) [2018] FCA 530
CORPORATIONS – where the plaintiffs seek to claw back payments made by the company to the defendant prior to its liquidation – whether the company was insolvent at the time each of the payments were made – whether any payments made to the defendant were unfair preferences within the meaning of s588FA of the Corporations Act 2001 (Cth) (Act) – whether any payments are an integral part of a continuing business relationship between the company and the defendant pursuant to s588FA(3) of the Act – whether the defendant has a good faith defence pursuant to s588FG(2) of the Act – whether a set-off pursuant to s553C of the Act is available in the event that the defendants are required to pay the unfair preference amount.
Stay Mining Accommodation Pty Ltd v Grounded Construction Group Pty Ltd [2018] FCA 519
CORPORATIONS - Application to set aside statutory demand - whether genuine dispute as to the existence of debt for remuneration for construction work under contract - character of determination by adjudicator under Construction Contracts Act 2004 (WA) - pending application for judicial review - whether 'some other reason' for setting aside the statutory demand - Construction Contracts Act 2004 (WA) ss30, 38, 39(1), 40, 43, 45(1), 45(4); Corporations Act 2001 (Cth) ss459G(3), 459H, 459J, 459L.
Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd (No 2) [2018] FCA 480
INDUSTRIAL LAW – industrial action – contraventions of s50 of the Fair Work Act 2009 (Cth) – assessment of penalties – form of declaratory order. The respondent pay a penalty of $90 for each of its 506 contraventions of s50 of the Fair Work Act 2009 (Cth), a total of $45,540.
Parker trading as On Grid Off Grid Solar v Switchee Pty Ltd trading as Australian Solar Quotes [2018] FCA 479
CONSUMER LAW –misleading or deceptive conduct – false or misleading representation of sponsorship, approval or affiliation – respondent refusing to remove material from website unless applicant purchases further services from it – unconscionable conduct – contraventions established – declaratory relief granted – injunctive relief granted – insufficient evidence of damage, applicant to be provide further opportunity to establish entitlement to monetary relief – Australian Consumer Law ss18, 20, 21, 22, 29, 232, 236.
Wilson v Dash [2018] NSWCATAP 91
Questions of law – absence of evidence - extra construction work, contractual regime for variations not followed - quantum meruit - Civil and Administrative Tribunal Act 2013; Civil and Administrative Tribunal Rules 2014.
This appeal arises out of a home building case heard in the Consumer and Commercial Division of the Tribunal in July 2016. There were two applications heard by the Tribunal Member. First, the appellants claimed for incomplete and defective work, refund of money alleged to have been overpaid to the respondent, lost rent and costs. Secondly, the respondent claimed for variations. For the reasons provided, we dismiss the appeal. In the event either party wishes to make an application for costs, the orders below deal with that.
Tzaneros Investments Pty Ltd v Walker Group Constructions Pty Ltd (No 4) [2018] NSWSC 431
COSTS – Party/Party – Whether to make a gross sum costs order – Difficulty of making a fair assessment on a gross sum basis – Effect of delay in making the application. The proceedings concerned a claim for damages brought by the plaintiff (Tzaneros) in relation to defective concrete paving at a container terminal at Molineaux Point, Port Botany.
Maiolo v Chiarelli (No 2) [2018] NSWCATAP 86
Frank Chiarelli and Vicki Woodward are granted an extension of time to 14 February 2018 to file and serve their costs application. Existence of Special circumstances in connection with an application for costs.
Civil and Administrative Tribunal Act 2013; Home Building Act 1989.
Obeid v Lockley [2018] NSWCA 71
TORTS – Misfeasance in public office – officers of ICAC appointed as senior investigators recorded contents of documents on video during execution of search warrant – whether officers held public office – whether officers acted in excess of power – whether officers were aware of or recklessly indifferent to a likely risk of harm to the plaintiffs – whether sufficient for there to be a reasonable foreseeable risk of harm – whether officers caused damage to the plaintiffs.
Hiettecorp Pty Ltd ATF Hiette Unit Trust v Queensland Building and Construction Commission [2018] QCAT 105
PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – where owner claims defective building work – where Queensland Building and Construction Commission makes decision to issue a direction to rectify to the contractor – where contractor sub-contracted to a third party to install a solar hot water system – where subcontractor assessed roof to be structurally sound – where subcontractor did not possess qualifications to make that assessment – where subcontractor did not possess qualifications to install – finding of structural defective building work – whether decision to issue a notice to rectify defects was unreasonable.
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – where Applicant has the responsibility to abide by the Building Code – where Applicant seeks to abrogate those responsibilities to the home owner through the terms and conditions of a contract.
IW & CA Price Constructions Pty Ltd v Australian Building Insurance Services Pty Ltd [2018] QCA 076
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – GENERAL PRINCIPLES AND EXERCISE OF DISCRETION – where the first respondent was awarded damages for lost profits and lost goodwill caused by the appellant’s breach of contract – where, on appeal, the award of damages was varied by excluding damages for lost goodwill – where the issue of lost goodwill was a significant one at trial – where only one of the four grounds of appeal succeeded – where the damages payable to the first respondent were reduced by approximately ten per cent – whether the first respondent should pay the appellant’s costs of the appeal – whether the costs orders made at trial should be varied.
Boral Resources (Qld) Pty Limited v Gold Coast City Council [2018] QCA 075
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where the respondent refused to grant the applicant a permit for a material change of use of land – where the proposal was for the development of a large hard rock quarry in the Gold Coast Hinterland – where the applicant submitted that the primary judge did not give a practical, common-sense meaning to s3.5.5.1(10) of CityPlan 2016 – where the applicant submitted the words “appropriately” or “to an acceptable level” ought to have been interpolated into s3.5.5.1(10) – whether the primary judge erred in law in interpreting s3.5.5.1(10).
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where the respondent refused to grant the applicant a permit for a material change of use of land – where the proposal was for the development of a large hard rock quarry in the Gold Coast Hinterland – where the primary judge found that the proposal would conflict with s3.5.5.1(10)(b) of CityPlan 2016 – where the applicant submitted the primary judge mischaracterised the koala habitat that exists on the land as a matter of environmental significance – where the applicant submitted it is the koala that is a matter of environmental significance, not its habitat – where there were 23,000 non-juvenile koala habitat trees on the subject land – whether the primary judge erred in characterising the whole of the quarry footprint as a matter of environmental significance for the purposes of s3.5.5.1(10)(b).
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where the respondent refused to grant the applicant a permit for a material change of use of land – where the proposal was for the development of a large hard rock quarry in the Gold Coast Hinterland – where the applicant conceded its proposal conflicted with the Gold Coast Planning Scheme 2003 – where the primary judge observed that if the applicant’s proposal does not succeed under CityPlan 2016, its prospects of success under the Gold Coast Planning Scheme 2003 are even more unlikely – whether the primary judge failed to apply s25 and s36 of the Sustainable Planning Act 2009 (Qld) with respect to State Planning Policy 2013 and the South East Queensland Regional Plan respectively.
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where the respondent refused to grant the applicant a permit for a material change of use of land – where the proposal was for the development of a large hard rock quarry in the Gold Coast Hinterland – where CityPlan 2016 was a relevant instrument – where the applicant submitted that the primary judge failed to give adequate reasons for his decision – whether the primary judge erred by failing to give adequate reasons for his decision.
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where the respondent refused to grant the applicant a permit for a material change of use of land – where the proposal was for the development of a large hard rock quarry – where the primary judge refused the application, but observed that the resource should be protected for future exploitation – where the applicant submitted this reasoning was irrational and illogical – where the applicant submitted unless the resource is exploited now, it will never be exploited – where the respondent submitted the primary judge’s observation envisaged that the resource may become exploitable at some time in the future under a later planning scheme – whether there was irrationality in the primary judge’s determination that there were not “sufficient grounds” to justify approval.
Springsure Creek Coal Pty Ltd v Arcturus Downs Limited (No. 2) [2018] QLC 8
ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS – TITLES: RIGHTS, PERMITS, LICENCES AND LEASES ETC – where application for mining lease initially filed and approved by mining registrar varies from application for mining lease presently before the Land Court of Queensland for objection hearing – whether change in ownership of company applying for mining lease is sufficient to make the application substantially different – whether the application is so different that the application no longer complies with the requirements under the Mineral Resources Act 1989 – whether these differences amount to failure to comply with the requirements under the Act – whether the applications are void – whether the Land Court has jurisdiction in the situation where the applications are considered to be non-compliant with the requirements under the Act.
ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS – ENVIRONMENTAL PROTECTION LEGISLATION – where the areas under the mining lease and environmental authority applications are subject to the Strategic Cropping Land Act 2011 – where environmental authority cannot issue until strategic cropping land protection decision has been made – where strategic cropping land decision has been made – whether the applicant for the environmental authority can meet the conditions imposed by the strategic cropping land decision – where strategic cropping land conditions refer to ‘good quality agricultural land’ – whether rehabilitation to ‘best possible class of agricultural land’ includes returning the land to its condition prior to the mining – whether this is possible in the circumstances – whether this is a requirement under the Strategic Cropping Land Act 2011 – whether evidence led that the applicant cannot possibly return the land to this condition should result in a decision not to recommend the mining lease be granted.
Paddon v Queensland Building and Construction Commission [2018] QCAT 100
PROFESSIONS AND TRADES – BUILDERS – LICENCES AND REGISTRATION – OTHER MATTERS – where a plumber had been considered an excluded individual for both a bankruptcy event and a company event prior to amendments to the relevant legislation in 2014 – where the plumber was considered by the QBCC to be a permanently excluded individual – whether the amending legislation has retrospective effect.
PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – OTHER MATTERS – where leave to extend time was required to proceed with an application to review a decision to refuse to categorise the plumber as a permitted individual.
Chelbrooke Homes Pty Ltd v Queensland Building and Construction Commission [2018] QCAT 096
PROCEDURE – CIVIL PROCEEDINGS IN STATE OR TERRITORY COURTS – PARTIES AND REPRESENTATION – LEGAL REPRESENTATION – GENERALLY – where leave for legal representation sought – where application for leave opposed by other party – whether interests of justice require leave to be granted.
Buttler Engineering Pty Ltd v Newsteel Pty Ltd (Building and Property) [2018] VCAT 599
Domestic Building – claim for loss associated with drawings – question arises about whether there was a term of the agreement about liability and where liability lies – claim dismissed.
Formation Landscapes Pty Ltd v Stonnington Fences & Gates Pty Ltd (Building and Property) [2018] VCAT 506
Contract for the supply and installation of pedestrian and vehicle gates; applicant specified that the gates to be constructed of Treated Pine timber; gates as supplied were constructed of Oregon timber as specified in respondent’s quotation accepted by applicant; applicant claimed cost of replacement of gates with gates constructed of Treated Pine timber; contract between parties found to be for gates constructed of Oregon; gates found to be fit for purpose; claim dismissed.
Stand v Revive Services Pty Ltd (Building and Property) [2018] VCAT 533
Domestic building - alleged defects, plumbing and electrical works undertaken by unregistered person to the knowledge of the owner, refund, pergola smaller than contracted for, damages reduced to take into account “cash discount”. The respondent must pay the applicant $1,682 forthwith.
New South Wales
Roads Amendment (Toll Relief Scheme) Regulation 2018 (2018-140) — published LW 13 April 2018.
Coal Industry Amendment Bill 2018 — 13 April 2018.
Contacts:
Christine Jones, Partner - Construction & Infrastructure (Dispute Resolution)
T: +61 2 8083 0477
E: christine.jones@holdingredlich.com
Stefanie Dunnicliff, Senior Associate
T: +61 2 8083 0464
E: Stefanie.Dunnicliff@holdingredlich.com
Divya Chaddha, Associate
T: +61 2 8083 0457
E: Divya.Chaddha@holdingredlich.com
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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