21 August 2024
13 min read
#Property, Planning & Development, #Construction, Infrastructure & Projects
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In a previous edition we highlighted the proposed changes to building legislation in NSW, which included restrictions on rights under the Building and Construction Industry Security of Payment Act 1999 (SOP Act) where there are non-compliances with ss 4 and 92 of the Home Building Act 1989 (HBA).
The Better Regulation Legislation Amendment (Miscellaneous) Bill 2024 (BRLA Bill) has since been passed by both Houses without amendment, on 14 August 2024.
The BRLA Bill amends the SOP Act to restrict the right to make a progress claim (and therefore a payment claim) where the works under the construction contract are carried out by unlicensed contractors, or without a policy of insurance under the Home Building Compensation Fund.
The Bill legislates around decisions such as Sunshine East Pty Ltd v CBEM Holdings Pty Ltd [2023] NSWSC 744, where the Supreme Court of NSW held that a payment claim for residential building work which has been completed to an acceptable standard, was valid even if a contractor is unlicensed and uninsured under the HBA.
The aspects of the Bill relevant to the SOP Act came into force on the date of assent, 20 August 2024.
Authors: Christine Jones & Brandon Thai
Vulnerable people living in Sydney boarding houses face eviction to make way for luxury apartments
More than 30 vulnerable residents of a boarding house in inner Sydney are facing possible homelessness after a developer purchased the property. Thousands of people living in similar boarding houses in Sydney are at risk, afforded "flimsy" protection from rental increases or eviction. The development has been rejected by the City of Sydney Council and is heading to court in a landmark case which will test if boarding houses are protected. Read more here.
NSW builder NEX wants $1.3b Stockland-Lendlease to go ahead
NEX Building Group, the largest residential builder in NSW, has urged the competition regulator to approve Stockland’s purchase of a $1.3 billion housing estate portfolio from Lendlease, saying delays in the deal announced last year were keeping much-needed land out of the housing market. The deal does not only affect the country’s ability to work through its increasingly difficult 1.2 million new home target. It’s a crucial part of Lendlease’s efforts to shed underperforming divisions and return $4.5 billion to shareholders. Read more here.
NSW government to establish task force to look into real estate agents underquoting of properties
The practice of underquoting is on the rise in NSW, with over 100 complaints so far this year. A buyer's agent has called for a royal commission, but real estate industry body says most agents are not "deliberately underquoting". NSW Premier Chris Minns said the government was establishing a task force to crack down on offences in the property sector, including underquoting. Read more here.
Priced out of home ownership, could an entire generation be stuck renting forever?
According to the Grattan Institute, until the late 1990s house prices broadly tracked income growth. But between 1992 and 2018 house prices grew at almost three times the pace. It is predicted home ownership rates for people aged over 65 will have fallen from around 80 per cent today to 65 per cent by 2056. Without home ownership, younger Australians will face tough times in retirement. Read more here.
Next step complete for Australia’s largest social housing build
Following a tender process, the NSW Government has selected Stockland, Link Wentworth Housing, City West Housing, and Birribee as the preferred partners to build homes and lead the Waterloo renewal. Waterloo Estate is one of the largest social housing estates in the country, it will be renewed in stages, starting with Waterloo South where 750 older public housing properties with be replaced with new, well-designed and fit-for-purpose homes. Read more here.
Western Sydney First Home Buyers big winners in expanded program
Thousands of first home buyers are building a future in Western Sydney with help from the Minns Government’s expanded First Home Buyers Assistance program. From Camden to Penrith, The Hills, Parramatta, Bankstown and Liverpool, first home buyers across Western Sydney have saved an average of $20,562. In the middle of a housing crisis, the First Home Buyers Assistance program is one of the Minns Government’s biggest cost of living relief measures, providing meaningful support to help tens of thousands of people to buy their first home. Read more here.
NSW Government drives innovation utilising 3D printing to deliver much needed social housing
The Minns Labor Government is pursuing innovative solutions to address the housing and homelessness crisis with the use of 3D printing to deliver more housing. This groundbreaking method of construction aims to reduce costs and cut construction time by 50 percent and will be used to build the first social housing property of this type in New South Wales. 3D printing produces significantly less waste, and the concrete mix uses eco-friendly, high-recycled materials to produce robust and energy-efficient homes with substantially reduced life cycle maintenance costs. Read more here.
New laws introduced to improve strata living
New laws designed to take immediate action to help restore confidence in living and investing in strata schemes are now before the NSW parliament. The reforms which impose higher penalties and greater disclosure obligations on strata managing agents are aimed at ending secret kickbacks on insurance policies and weeding out bad players. Strata laws put owners’ corporations in charge of making key decisions on the buildings and common property of townhouses and apartments, usually with the assistance of a strata managing agent. Read more here.
MOSM Pty Ltd v M & N Joinery Pty Ltd [2024] NSWCATCD 24
BUILDING AND CONSTRUCTION – incomplete and defective work – assessment of damages and costs – application of established principles
Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW);
Home Building Act 1989 (NSW)
Petrie v Dickson [2024] NSWSC 972
LAND LAW – easements – purported easement for use of servient land “for garden use”, including planting and landscaping, and construction of garden shed for storage – interpretation – whether use of shed for storage limited to gardening items – whether grant allowed for common use by servient owner – “reasonable use” – validity – whether grant capable of forming subject matter of easement – “ouster principle” – effect on servient area and servient lot as a whole – grant invalid as an easement
Conveyancing Act 1919; Law of Property Act 1925 (UK)
The Owners – Strata Plan No. 82089 v Omaya Holding Pty Ltd [2024] NSWSC 992
CIVIL PROCEDURE – application for summary dismissal or strike out of pleadings – leave sought to withdraw alleged admissions in list response – where alleged admissions arise in part from obvious error in list response – court’s power to make amendment to facilitate just, quick and cheap resolution of real issues in dispute – finding that alleged admissions not truly admissions – General Steel test not met – no summary dismissal – finding that part of pleadings embarrassing and liable to be struck out
Civil Liability Act 2000 (NSW) s 34(2); Civil Procedure Act 2005 (NSW) ss 56(1), 56(2), 57, 58, 64; Design and Building Practitioners Act 2020 (NSW) s 37(1); Home Building Act 1989 (NSW) ss 3A, 18B, 18D; Strata Schemes Management Act 2015 (NSW); Uniform Civil Procedure Rules 2005 (NSW) rr 12.6, 13.4, 14.28
Lo v Aree [2024] NSWCATAP 159
LAND LAW – strata title – by-laws – inadequate floor covering – noise transmission – construction of by law
Civil and Administrative Tribunal Act 2013 (NSW); Protection of the; Environment Operations (Noise Control) Regulation 2017 (NSW); Strata Schemes Management Act 2015 (NSW)
Nimmons v The Owners Strata Plan No 10441 [2024] NSWCATAP 157
APPEALS – constructive failure to exercise jurisdiction – appeal allowed; APPEALS – leave to appeal – principles governing – leave to appeal refused; LAND LAW – strata title – whether a quarantine order should be made – Quarantine order made
Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 60, 80, 81, Sch 4, cl 12; Civil and Administrative Tribunal Rules 2014, rr 25, 38, 38A; Strata Schemes Management Act 2015 (NSW), ss 104, 106, 232
Hiperia Holdings Pty Limited v Sghabi; Sghabi v Hiperia Holdings Pty Limited [2024] NSWCATAP 152
COSTS – Costs of Appeal and Tribunal proceedings – proportionate costs where mixed success on different issues – Calderbank offer – whether genuine offer of compromise – whether unreasonable to refuse Calderbank offer
Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW); Home Building Act 1989 (NSW)
Raysons Constructions Pty Limited v The Owners – Strata Plan No 87003 [2024] NSWCATAP 156
COSTS – Calderbank letter – whether offer an adequate compromise – whether offeree not acting unreasonably in rejecting offer
Civil and Administrative Tribunal Act 2013 NSW; Home Building Act 1989 NSW
Ilhan v Easy Automatic Gate Pty Ltd [2024] NSWCATAP 150
APPEALS – constructive failure to exercise jurisdiction – no material error of law – appeal dismissed; APPEALS – leave to appeal – principles governing – leave to appeal refused; APPEALS – procedural fairness – failure of the builder to strictly comply with procedural orders – appeal dismissed; BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – building dispute – where breach of statutory warranties by the builder not established
Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 80, 81, Sch 4, cl 12; Civil and Administrative Tribunal Rules 2014, rr 25, 38A; Home Building Act 1989 (NSW), ss 4, 7AAA, 10, 18B
Hassanain v Commissioner for Fair Trading [2024] NSWCATAD 220
ADMINISTRATIVE LAW – Home building – application for individual contractor licence – application of Instrument – experience requirements – employee.
Administrative Decisions Review Act 1997 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Home Building Act 1989; Licensing and Registration (Uniform Procedures) Act 2002 (NSW)
Marino v Building Commission NSW, Department of Customer Service (No 2) [2024] NSWCATOD 123
COSTS – administrative review – costs – special circumstances – late and unsuccessful ground of fitness and propriety.
Civil and Administrative Tribunal Act 2016
Carbone v Fowler Homes Pty Ltd; Carbone v Fowler Homes Pty Ltd [2024] NSWCA 192
CONTRACT – contracts for residential building work – trial of claims for damages following dispute between owners and builder resolved by work being completed by builder – whether pleaded case extended to claim for damages for breach of contract, as opposed to deceit and statutory unconscionability – whether trial conducted on basis which departed from pleadings – whether primary judge erred in excluding valuation evidence and concluding no evidence of loss – effect of owners’ delayed payment of progress claims on their claims for damages – calculation of damages.
Australian Consumer Law, ss 20, 21 and 236; Civil Procedure Act 2005 (NSW), s 56; Civil Procedure Act 2005 (NSW) ss 149A, 149B and 149E; Contracts Review Act 1980 (NSW), s 9; District Court Act 1973 (NSW), s 127; Evidence Act 1995 (NSW), s 140; Home Building Act 1989 (NSW), s 18G; Judiciary Act 1903 (Cth), s 44; Real Property Act 1900 (NSW); Supreme Court Act 1970 (NSW), ss 68, 75A; Trade Practices Act 1974 (Cth), s 82; Uniform Civil Procedure Rules 2005 (NSW), rr 14.14, 28.2 and 51.40
Assented to
Statute Law (Miscellaneous Provisions) Act 2024 No 47 – commenced 21 August 2024
Regulations and miscellaneous instruments
Property and Stock Agents Regulation 2022 (NSW) – legislation updated on 9 August 2024
Strata Managing Agents Legislation Amendment Bill 2024 – LA, Awaiting 2R Debate, 14 August 2024
Better Regulation Legislation Amendment (Miscellaneous) Bill 2024 – LC, Awaiting Assent, 14 August 2024
Environmental Planning and Assessment Amendment (Affordable Housing) Bill 2024 – LA, 2R Debate, in progress, 15 August 2024
Biodiversity Conservation Amendment (Biodiversity Offsets Scheme) Bill 2024 – LC, Referred to committee for inquiry and report, 15 August 2024
Regional Development Amendment Bill 2024 – LC, 2R Speech, 15 August 2024
Bill introduced by Government
Strata Managing Agents Legislation Amendment Bill 2024 – Introduced LA 14 August 2024
Disclaimer
The information in this article 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 article is accurate at the date it is received or that it will continue to be accurate in the future.
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