Legislation

The Building and Construction (Security of Payment) Act 2021 (WA) (Act) received assent on 25 June 2021. The Act will implement significant changes to WA's security of payment regime, to bring it more in line with other Australian jurisdictions.

The Design and Building Practitioners Act 2020 (NSW) came into full force on 1 July 2021. This introduced a number of changes that will impact designers, builders, engineers, developers and financiers in New South Wales.

New South Wales

The decisions in the New South Wales Supreme court:

• remind builders and developers that they must ensure they plead the limitation defence under section 18E of the Home Building Act (HBA). This is if they consider that a claim for the statutory warranties in section 18B of the HBA has been brought against them outside the relevant limitation period, otherwise it will not be considered by the court;
• affirm that the practical implications of failing to consider the expiry date of a limitation period, or length of a limitation period, are potentially very expensive; and
• highlight the approach that a Court takes towards pleadings alleging breach of a statutory duty of care.

Queensland

The decisions in the Queensland courts are a reminder that:

• a word or expression used in legislation is defined for the purposes of that legislation, and all of the words included in that definition are relevant;
• licensed contractors cannot challenge the Queensland Building and Construction Commission's (QBCC's) process, after it has made a payment under the home warranty insurance scheme;
• the QBCC will be entitled to recover payments made under the home warranty insurance scheme, if a building contractor fails to comply with a direction of the QBCC to complete work or rectify defects; and
• experts can encounter difficulty and criticism if they rely upon data that is considered to be hearsay.
  

  South Australia, Victoria and Western Australia

• The decision in South Australia affirms that a property owner must give a builder access to carry out rectification works. This is in circumstances where a contract gives the builder the right and obligation to rectify defects, before the owner can engage a third party to carry out the rectification works. The owner cannot refuse to grant the builder access, where a builder is able and willing to undertake the rectification works, , even if relations have broken down.
• In Victoria, the courts have upheld that where more than one occupancy permit has been issued for a staged development, the limitation period commences on the date of the final occupancy permit for the whole of the building work.
• In Western Australia, parties to a contract are reminded of the far-reaching consequences of an arbitration clause. In particular, arbitral determinations made under the Commercial Arbitration Act 2012 (WA) (Act) are final and binding, unless the parties have agreed otherwise. Also, the losing party does not thereafter get a second chance to argue its case by appeal to the courts.

If there is anything in particular you would like us to cover in an upcoming edition, please get in touch with our team.