The Federal Court decision illustrates the procedural difficulties that can arise in class action claims for defective building works, in this case combustible cladding. The NSW Court of Appeal decision confirms that a stay of execution of a judgment debt under the NSW SOP Act requires the party seeking relief to demonstrate a real risk of irreparable prejudice flowing from refusal of the stay. The other NSW decisions respectively emphasise the importance of understanding contractual obligations to complete building works by an ascertained time and provide guidance on matters of procedural fairness and the definition of a major defect under section 18E of the Home Building Act 1989 (NSW).
In Queensland, the decisions confirm that when resolving disputes between parties to an agreement the court will look to the terms of the agreement to determine its proper construction; respondents must be thorough when including reasons for withholding payment in a payment schedule in order to avoid being barred from relying on those reasons in adjudication; and consider whether, in the context of a strikeout application, a global claim can be pleaded as an alternative, where the primary pleading fails to demonstrate causation.
The decision of the Victorian County Court confirms that builders will find it difficult to show that mixed use developments which include a domestic component will fall within the application of the VIC Sop Act and the decision out of the Victorian Supreme Court reiterates the usual approach taken by the court in respect of granting an injunction to suspend and defer a party's entitlement to recover an adjudicated amount.
Legislative Update
A Double Act – new rules for NSW design and building practitioners and residential apartment developers
The Design and Building Practitioners Act 2020 (NSW)
The Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (NSW)
In the Australian courts
Commonwealth
Contribution claims in a class action for defective building work and flammable cladding | The Owners - Strata Plan No 87231 v 3A Composites GmbH (No 3) [2020] FCA 748
New South Wales
A weighted coin: SOP favours cashflow to builders even if the developer may go bust | TFM Epping Land Pty Ltd v Decon Australia Pty Ltd [2020] NSWCA 118
You cannot 'granny' around – damages for late completion will be awarded despite alleged contractual uncertainty | DB Homes Pty Ltd v D'Souza [2020] NSWCATAP 104
Swimming in major defects | Jamie Beyer t/as Leisure Pools & Spas Newcastle v Palazzi [2020] NSWCATAP 109
Queensland
New reasons are treason for unwary adjudicators | Acciona Agua Australia Pty Ltd v Monadelphous Engineering Pty Ltd [2020] QSC 133
Causation and particulars still the cornerstone of good pleadings | Alexanderson Earthmover Pty Ltd v Civil Mining & Construction Pty Limited [2020] QSC 122
Ambiguous contract terms cost cement deal in Queensland | Wagners Cement Pty Ltd & Anor v Boral Resources (Qld) Pty Ltd & Anor [2020] QSC 124
Victoria
Mixed-use developments under DBCA | Bayside Design & Construct Pty Ltd v Kanbur [2020] VCC 691
Seeking an injunction? Be prepared to pay for it | Launch No. 4 v Southstar Homes [2020] VSC 299
If there is a particular area of interest that you would like to see covered in our next addition, please reach out.
