Category: Building and Construction Law
Will a Payment Claim under the BCISOP Act be valid if it:
- only claims for work not previously claimed in an earlier payment claim made pursuant to an earlier reference date; and / or,
- does not contain a claim for work performed since the last reference date ?
VCAT has recently confirmed that an applicant in a building action is not entitled to make a claim against a respondent who has been joined as a concurrent wrongdoer if that claim is out of time under the Building Act 1993.
In obiter remarks the High Court has now provided some clarity by unequivocally stating that “surrounding circumstances” may only be used to construe a written contract when “ambiguity” is present.
The proposed reforms to the domestic building industry (discussed in the CommBarNews of 28 May 2014) have been put on hold by the change of government in Victoria. Despite this, VMIA has taken the pro-active step of improving the services it offers to consumers.
Vickery J looked at applications to set aside judgments under s.28R(5)(a)(iii) of the Building and Construction Industry Security of Payment Act 2002 (Vic) (SOP Act) and the availability in this context of challenges based on jurisdictional error (available) and error on the face of the record (not available).
The NSW Court of Appeal looked at whether the vendor of a private home, who had admitted misrepresenting the quality of the home, could be liable for a breach of the misleading and deceptive conduct provisions of the Australian Consumer Law. The Court also looked at the proportionate liability regime in Part VIA.
The use of expert evidence is controlled by primary and subordinate legislation. Courts can use their extensive management powers to assist the process but often the parties do not focus early enough on what is required.
Case Note by David McAndrew. The Court of Appeal has found that interlocutory applications to restrain recourse to performance bonds generally fall into a special category when it comes to whether the Court should exercise its discretion to decide a question of law/construe the recourse provision. A mere assertion of reputational damage in the event of recourse will not suffice to demonstrate likelihood of irreparable harm.
The Supreme Court of Victoria was required to consider the application of the Domestic Building Contracts Act 1995 (Vic) to multi-apartment developments. McDonald J held that, subject to the nature of the works falling within the definition of “domestic building work”, the Act applies to multi-apartment developments and to developers of such developments.
A modified AS4300-1995 contract defined practical completion to include an exhaustive list of both significant and trivial items of work. The builder argued that because the failure to attend to trivial items of work could trigger the liquidated damages clause, the clause was penal. The Queensland Supreme Court disagreed.
The New South Wales Court of Appeal has refused leave to add a ground of appeal against a judgment that the director of a building company and his wife indemnify an insurer for over $1 million paid out to home owners, as the appeal point on which the appellants now sought to rely was not raised before the primary judge.
The High Court unanimously held that the builder of strata-titled apartments did not owe an owners corporation a duty of care to avoid pure economic loss caused by latent defects in common property.
The Victorian Court of Appeal has held that the 10 year limitation for commencing a building action in s. 134 of the Building Act 1993 (“Building Act”) is not confined to negligence claims, but also applies to actions founded in contract. The Court of Appeal also held that, on the facts of the case, no duty of care was owed by the building surveyor to the owner to prevent the type of loss suffered by the owner.
A recent illustration of the stringency of the usual undertaking as to damages for a party who obtains an interlocutory injunction, where the injunction is later discharged and the proceeding lost.