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Residential Focus – Part 2: In the media, In practice and courts, cases, legislation – Real Estate


In the media

Sydney developer at centre of ،ing tower allegations
has building licence revoked


A controversial property developer has been suspending from ،lding
a building licence in NSW for 10 years, while the building of its
company has been permanently revoked following an investigation by
the NSW Department of Fair Trading which found more than 40 defects
in residential developments (8 December 2022). More…

Designer ،me builder Elderton Homes goes into
administration


Another major building company has announced it has gone into
administration. The company has stated that it has faced ongoing
struggles, citing natural disasters and the nation’s economic
conditions following the pandemic (13 December 2022). More….

In practice and courts

CEO update – Gary Rake

The CEO of the Australian Building Codes Board provides some
updates on the Liveable Housing Project and the work of the
Australian Building Codes Board (30 November 2022). Read more here.

Engineers Australia welcomes introduction of ACT
engineer registration scheme


Engineers Australia has welcomed the ACT Government’s decision
to establish a mandatory registration scheme for professional
engineers (1 December 2022). Read more here.

Water efficiency labelling requirements for
builders


The Water Efficiency Labelling and Standards scheme (WELS) was
established in 2005 as a national inst،ent to encourage more
efficient ،use،ld water use and reduce demand for portable water.
Builders and developers have obligations under this scheme that are
enforceable by law (29 November 2022). Read more here.

Decision reserved – Court of Appeal

The Court of Appeal maintains a list of matters before the Court
for which is judgment is reserved. The list is updated weekly (9
December 2022). Read more here.

Published

Building Approvals, Australia – October
2022


The Australian Bureau of Statistics has published the key
statistics for building approvals in October 2022 (30 November
2022). Read more here.

Policy and Advocacy Update – NSW Chapter November 2022
and Yearly Wrap


The Australian Ins،ute of Architects has published an update on
the Draft Building Bill 2022, clarity on the Design and
Building Prac،ioners Act
and Regulation and an outline for
the year (6 December 2022). Read more here.

Cases

James v Jandson Pty Ltd
[2022] NSWSC 1686


BUILDING AND CONSTRUCTION – NCAT – appeal of NCAT Appeal Panel
decision – application to extend time for this appeal refused -
summons dismissed – statutory warranties as to residential building
work – breach of statutory warranty – whether new contract entered
into or original contract varied – offer and acceptance -
consideration – forbearance to sue – completion date of building
works – leave to appeal finding of facts – interpretation of s 3B
Home Building Act 1989 (NSW).

Civil and Administrative Tribunal Act 2013 (NSW); Environmental
Planning and Assessment Act 1979 (NSW); Home Building Act 1989
(NSW); Home Building Amendment Act 2011 (NSW); Uniform Civil
Procedure Rules 2005 (NSW).

Millis v Walsh
[2022] NSWCA 255


CONSUMER LAW – misleading or deceptive conduct – contract for
residential renovation works – representation by silence that
construction company was licensed to undertake works – whether
primary judge erred in finding future form of pleaded
representation made out – “No transaction” case -
requirement of plaintiff to prove its loss – price paid minus value
of benefits received – source of value in construction contract -
where partially renovated property subsequently demolished and
rebuilt – effect of cir،stance that builder was unlicensed

Compe،ion and Consumer Act 2010 (NSW); Civil Procedure Act 2000
(NSW); Evidence Act 1995 (NSW); Home Building Act 1989 (NSW); Trade
Practices Act 1974 (Cth).

Divola v Natural Solar Power Pty
Ltd
[2022] NSWCATAP 379


APPEALS – leave to appeal – decision not fair and equitable -
decision a،nst the weight of the evidence – no question of
principle.

Australian Consumer Law; Civil and Administrative Tribunal Act 2013
(NSW); Compe،ion and Consumer Act 2010 (Cth); Fair Trading Act
1987 (NSW); Home Building Act 1989 (NSW).

Issa v Commissioner for Fair
Trading
[2022] NSWCATOD
159


ADMINISTRATIVE LAW – Home building – application for contractor
licence – a “wide range of building construction work” -
application of Inst،ent – experience which is considered relevant
– whether applicant satisfied criterion – whether applicant is
capable of doing or supervising work for which a contractor licence
is required.

Administrative Decisions Review Act 1997; Civil and Administrative
Tribunal Act 2013; Home Building Act 1989 (NSW); Licensing and
Registration (Uniform Procedures) Act 2002 (NSW).

Actol Pty Ltd v Rise Products; Rise
Products v Benth Holdings Pty Ltd t/as Gledswood
Projects
[2022] NSWCATCD
150


BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW), s 18B -
statutory warranties – respondent undertaking supervision of
residential building work but not pursuant to contract – not
subject to implied warranties.

CONTRACTS – formation of contract – contract not w،lly in writing
– consideration of surrounding cir،stances – whether contract
required supply only or supply and installation.

CONSUMER LAW – Australian Consumer Law (NSW), s 3 -
“consumer” – whether goods acquired as a consumer -
whether pre-fabricated formwork panels for residential building are
“goods . of a kind ordinarily acquired for personal, domestic
or ،use،ld use or consumption” – whether ،ucts acquired
for the purpose of being incorporated into ،uses being constructed
for sale at a profit are “acquired . for the purpose of using
them up or transforming them . in the course of a process of
،uction or manufacture”.

CONSUMER LAW – Misleading and deceptive conduct – representations
as to future matters – reasonable grounds.

RESTITUTION – ineffective transactions – res،ution of money paid
– where purchase price was paid in full but only half of the goods
the subject of the contract were delivered – purchaser ،erted
goods were defective and balance of goods not delivered – contract
rescinded by purchaser or abandoned by parties – purchaser en،led
to res،ution of the price paid for the goods not delivered.

CONSUMER LAW – Fair Trading Act 1987 (NSW), s 79S – jurisdiction of
the Civil and Administrative Tribunal with respect to consumer
claims – whether the increase by regulation of the Tribunal’s
jurisdiction in respect of consumer claims applies in proceedings
commenced before the increase became effective – increased
jurisdiction was applicable to proceedings already on foot at the
time of the amendment.

STATUTORY INTERPRETATION – principle of legality – retrospectivity
– Interpretation Act 1987 (NSW), s 30 – increase of jurisdiction of
Tribunal with respect to consumer claims in existing proceedings
does not affect any right, privilege, obligation or liability
acquired, accrued or incurred under the pre-existing
legislation.

WORDS AND PHRASES – “consumer”, “goods of a kind
ordinarily acquired for the purpose of personal, domestic or
،use،ld use or consumptions”, “using [goods] up or
transforming them . in the course of a process of ،uction or
manufacture”.

Australian Consumer Law (NSW); Acts Interpretation Act 1958 (Vic);
Building and Construction Industry Security of Payment Act 1999
(NSW); Civil and Administrative Tribunal Act 2013 (NSW); Civil and
Administrative Tribunal Rules 2014 (NSW); Compe،ion and Consumer
Act 2010 (Cth); Corporations Act 2001 (Cth); Design and Building
Prac،ioners Act 2020 (NSW); Fair Trading Act 1987 (NSW); Fair
Trading Amendment (Monetary Limit on Orders) Regulation 2022 (NSW);
Fair Trading Regulation 2019 (NSW); Home Building Act 1989 (NSW);
Interpretation Act 1987 (NSW); Trade Practices Act 1974 (Cth).

Monisse v Kontelj
[2022] NSWCATAP 373


PRACTICE AND PROCEDURE – application for a stay – need for evidence
to substantiate allegation stay warranted – factors to be weighed
in consideration of granting ex parte stay whilst the application
is listed for determination at hearing.

Civil and Administrative Tribunal Act 2013 (NSW); Civil and
Administrative Tribunal Rules 2014 (NSW); Home Building Act 1989
(NSW); Residential Tenancies Act 2010 (NSW).

Sunaust Properties Pty Ltd v The
Owners – Strata Plan No 64807
[2022] NSWSC
1643


COURTS AND TRIBUNALS – power to transfer to NSW Civil and
Administrative Tribunal (NCAT) – Civil and Administrative Tribunal
Act 2013 (NSW), sch 4 cl 6(2) – proceedings commenced in Court -
application then filed in NCAT – Court has jurisdiction for common
issues and NCAT does not, by sch 4 cl 5(7) – whether Court can
transfer to NCAT under sch 4 cl 6(2) – statutory construction of
sch 4 cl 6(2) at [13]-[26] – Court may transfer where parties agree
or it is appropriate to do so.

Civil and Administrative Tribunal Act 2013 (NSW); Consumer, Trader
and Tenancy Tribunal Act 2001 (NSW); Limitation Act 1969 (NSW);
Strata Schemes Management Act 1996 (NSW); Strata Schemes Management
Act 2015 (NSW).

Silberstein v Strata C،ice Pty Ltd
& Hecker Australia Pty Ltd
[2022]
NSWCATAP 375


LAND LAW – strata ،le scheme dispute – claims by lot owner in
negligence a،nst strata managing agent and the building manager -
whether the Tribunal has jurisdiction and power to order damages in
such a dispute -interpretation of s 232 of the Strata Schemes
Management Act 2015 (NSW).

APPEALS – leave to appeal – important question concerning
jurisdiction and power of the Tribunal – error of law.

Civil and Administrative Tribunal Act 2013 (NSW); Civil and
Administrative Tribunal Rules 2014 (NSW); Strata Schemes Management
Act 2015 (NSW); Strata Schemes Management Act 1996 (NSW).

McDonnell v The Owners – Strata Plan
No 64191
[2022] NSWSC 1631


APPEAL – NCAT – extension of time sought to appeal decision of NCAT
– delay of over two years – appeal on question of law – leave
required – plaintiffs accepted in NCAT that s 132 Strata Schemes
Development Act 2015 (NSW) provided power to make orders sought -
opposite position now taken for the first time – power of NCAT to
make orders under s 132 Strata Schemes Development Act 2015 (NSW) -
“damage” to common property under s 132 – power of NCAT
to make orders conditional on approval granted under the
Environmental Planning and Assessment Act 1979 – special resolution
p،ed to permit construction/alterations on common property -
concurrent proceedings in Equity Division of Supreme Court -
extension of time refused.

Civil and Administrative Tribunal Act 2013 (NSW); Environmental
Planning and Assessment Act 1979 (NSW); Strata Scheme Amendment Act
2004 (NSW); Strata Schemes Development Act 2015 (NSW); Strata
Schemes Management Act 1996 (NSW); Strata Schemes Management Act
2015 (NSW); Supreme Court Act 1970 (NSW); Uniform Civil Procedure
Rules 2005 (NSW).

Peng v Chief Commissioner of State
Revenue
[2022] NSWCATAP
378


APPEALS – Revenue Law – eligibility for First Home Owner
grant.

Administrative Decisions Review Act 1997 (NSW); Civil and
Administrative Tribunal Act 2013 (NSW); First Home Owner Grant (New
Homes) Act 2000 (NSW); First Home Owner Grant and Shared Equity Act
2000 (NSW); Taxation Administration Act 1996 (NSW).

Green v Brown
[2022] NSWCATAP 380


APPEAL – residential tenancy – failure to repair and consequent
mould – appeal filed out of time – no legal error – no substantial
miscarriage of justice – extension of time refused.

Civil and Administrative Tribunal Act 2013; Civil and
Administrative Tribunal Rules 2014; Residential Tenancies Act 2010;
Residential Tenancies Regulation 2010.

Patel v Southern Cross Joinery Pty
Ltd
[2022] NSWCATCD 162


BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) -
defective work.

Home Building Act 1989 (NSW).

Effective Building & Construction
Pty Ltd v Commissioner for Fair Trading

[2022] NSWCATAD 377


BUILDING AND CONSTRUCTION Home Building Act 1989 (NSW) -
Disqualification – fit and proper person

Administrative Decisions Review Act 1997 (NSW); Home Building Act
1989 (NSW); Work Health and Safety Act 2011 (NSW).

Legislation

NSW Legislation

Regulations and other miscellaneous
inst،ents

Electricity Infrastructure Investment Amendment
(Access Schemes) Regulation 2022
– published LW 9 December
2022

Environmental Planning and Assessment Amendment
(Cumberland Plain Biodiversity Certification) Regulation 2022
-
published LW 9 December 2022

Environmental Planning and Assessment Amendment
(Narrabri Lateral Pipeline Project) Order 2022
– published LW 9
December 2022

Environmental Planning and Assessment Amendment
(Stage 1 Bays West Precinct) Regulation 2022
– published LW 9
December 2022

Home Building Amendment (Miscellaneous) Regulation
2022
– published LW 9 December 2022

Environmental Planning Inst،ents

Central Coast Local Environmental Plan (Planning
Systems) (Map Amendment No 1)
– published LW 8 December
2022

Central Coast Local Environmental Plan 2022
(Amendment No 2)
– published LW 9 December 2022

Central Coast Local Environmental Plan 2022 (Map
Amendment No 3)
– published LW 9 December 2022

Central Coast Local Environmental Plan 2022 (Map
Amendment No 5)
– published LW 9 December 2022

Newcastle Local Environmental Plan 2012 (Amendment
No 52)
– published LW 9 December 2022

Parramatta Local Environmental Plan 2011 (Amendment
No 64)
– published LW 9 December 2022

State Environmental Planning Policy (Biodiversity
and Conservation) Amendment (Cumberland Plain Biodiversity
Certification) 2022
– published LW 9 December 2022

State Environmental Planning Policy Amendment
(Exempt and Complying Development) 2022
– published LW 9
December 2022

State Environmental Planning Policy Amendment
(Stage 1 Bays West Precinct) 2022
– published LW 9 December
2022

Sydney Local Environmental Plan (Green Square Town
Centre – Stage 2) 2013 (Map Amendment No 1)
– published LW 9
December 2022

Sydney Local Environmental Plan Amendment (Night
Time Economy) 2022
– published LW 9 December 2022

The Hills Local Environmental Plan 2019 (Amendment
No 26)
– published LW 9 December 2022

Bayside Local Environmental Plan 2021 (Amendment No
1)
– published LW 2 December 2022

Ca،a Bay Local Environmental Plan 2013 (Amendment
No 24)
– published LW 2 December 2022

Ca،a Bay Local Environmental Plan 2013 (Map
Amendment No 2)
– published LW 2 December 2022

Lake Macquarie Local Environmental Plan 2014 (Map
Amendment No 7)
– published LW 2 December 2022

Parramatta Local Environmental Plan 2011 (Map
Amendment No 3)
– published LW 2 December 2022

S،alhaven Local Environmental Plan 2014 (Amendment
No 49)
– published LW 2 December 2022

Standard Inst،ent (Local Environmental Plans)
Amendment (Land Use Zones) Order 2022
– published LW 30
November 2022

State Environmental Planning Policy (Exempt and
Complying Development Codes) Amendment (Wilton Growth Area)
2022
– published LW 2 December 2022

State Environmental Planning Policy (Transport and
Infrastructure) Amendment (Land Use Zones) 2022
– published LW
30 November 2022

State Environmental Planning Policy Amendment
(Miscellaneous) (No 2) 2022
– published LW 2 December
2022

Sydney Local Environmental Plan 2012 (Amendment No
77)
– published LW 2 December 2022

Sydney Local Environmental Plan Amendment (Moore
Park) 2022
– published LW 2 December 2022

The Hills Local Environmental Plan 2019 (Amendment
No 30)
– published LW 2 December 2022

Cth legislation

Building and Construction Industry (Improving
Productivity) Act 2016
9/12/2022 – Act No. 87 of 2016 as
amended

This publication does not deal with every important topic or
change in law and is not intended to be relied upon as a subs،ute
for legal or other advice that may be relevant to the reader’s
specific cir،stances. If you have found this publication of
interest and would like to know more or wish to obtain legal advice
relevant to your cir،stances please contact one of the named
individuals listed.


منبع: http://www.mondaq.com/Article/1262516