Articles
Using liquidated damages clauses in Australian Standard Contracts
Author: Michael Hollingdale, Robert French
Source: Australian Construction Law Bulletin, Issue 9, February 2009: p91
Letters of intent and the risks in not proceeding to a formal contract
Author: Scott Alden, Alyson Eather
Source: Australian Construction Law Bulletin, Issue 9, February 2009: p94
Protecting the principal through contract from an adverse determination under the Construction Contracts Act 2004 (WA)
Author: Kate Norman
Source: Australian Construction Law Bulletin, Issue 9, February 2009: p97
The discontinued index – a danger in rise and fall clauses
Author: Dan Dragovic, Stefania Gardner
Source: Australian Construction Law Bulletin, Issue 9, February 2009: p100
Dispute resolution – when negotiating in good faith may be enforceable
Author: Katye Norman
Source: Australian Construction Law Bulletin, Issue 9, February 2009: p107
Security of payment in South Australia
Author: Andrew Robertson, Juniper Watson
Source: Australian Construction Law Bulletin, Issue 9, February 2009: p110
Practice Notes / Directions
National Greenhouse reporting bill exposure draftAn exposure draft of the National Greenhouse and Energy Reporting Amendment Bill 2009 is now available for public comment. The bill requires auditors to register with the Greenhouse and Energy Data Officer (GEDO) and make a number of administrative amendments to clarify audit arrangements. It will also remove the obligation on the GEDO to publish energy production data as outlined in the consultation paper released earlier this year
http://www.climatechange.gov.au/reporting/consultation.html
Legislation
Commonwealth
National Greenhouse and Energy Reporting Amendment Regulations 2009 (No. 1)
Legislative Instrument - F2009L00711 Number: SLI 2009 No. 28
These Regulations amend the National Greenhouse and Energy Reporting Regulations 2008 to support changes made to the National Greenhouse and Energy Reporting Act 2007 (the Act) by the National Greenhouse and Energy Reporting Amendment Act 2008 and also makes a number of clarifications on matters relating to the administration of the Act. Date Registered: 26/02/2009
http://www.comlaw.gov.au/ComLaw/Legislation/LegislativeInstrument1.nsf/all/whatsnew/5DB879849D785478CA25756600810E0B?OpenDocument
Queensland
Acts as passed
Planning (Urban Encroachment-Milton Brewery) Act No 1 of 2009
Greenhouse Gas Storage Act 2009 No 3 of 2009
Acquisition of Land and Other Legislation Amendment Act No 5 of 2009
Cases
Blue Chip Development Corporation (Cairns) Pty Ltd v van Dieman [2009] FCA 117
PRACTICE & PROCEDURE – legislative scheme for progress payments under construction contracts – challenge to validity of State legislation – whether balance of convenience favours grant of interlocutory relief – monetary adjustment available if application succeeds – weakness of challenge to validity of State legislation also relevant to whether an injunction should be granted.
Building and Construction Industry Payments Act 2004 (Qld) s 100
Federal Court of Australia Act 1976 (Cth) s 22
Judiciary Act 1903 (Cth) s 78B
Trade Practices Act 1974 (Cth) s 45D
http://www.austlii.edu.au/au/cases/cth/FCA/2009/117.html
Williams v Automotive, Food, Metals, Engineering, Printing Kindred Industries Union (No. 2) [2009] FCA 103
Respondents be restrained, whether by themselves, their servants or agents, from (a) preventing or hindering the access of any person or vehicle to the Hyde Street Depot site of the West Gate Bridge Strengthening Alliance Project - applications for interim injunctions under ss 39(2) and 49(3)(a) of the Building and Construction Industry Improvement Act 2005 (Cth)
Stuart v L.U. Simon Builders Pty Ltd [2009] FCA 107Declared that by refusing to allow Mr Vanderkley and his employees entry to the Aquavista site at 401 Docklands Drive, Docklands in Victoria on 6, 9 and 22 March 2007, the Respondent contravened s 45(1)(a)(i) of the Building and Construction Industry Improvement Act 2005 (Cth), (“BCII Act”) by discriminating against Mr Vanderkley on the ground that Mr Vanderkley’s employees were not covered by a workplace agreement.
http://www.austlii.edu.au/au/cases/cth/FCA/2009/107.html
Hurricane Formwork Pty Ltd (In Liquidation) ACN 095 391 423 v Commissioner of Taxation [2009] FCA 133
CORPORATIONS LAW - consideration of an application by a liquidator for an order that the Commissioner of Taxation pay the company in liquidation amounts received as voidable transactions – consideration of an application by the Commissioner for an order that directors of the company pay an amount to the Commissioner by way of indemnity pursuant to s 588FGA(2) of the Corporations Act 2001 (Cth) having regard to ss 588FGA(1), 588FGA(3) and 588FGA(4)
Corporations Act 2001 (Cth), ss 588FA, 588FC, 588FE, 588FF, 588FGA, 588FGB
http://www.austlii.edu.au/au/cases/cth/FCA/2009/133.html
Ainsworth v R J Neller Building Pty Ltd & Anor [2009] QDC 026
STAY OF EXECUTION – Whether appropriate case – Where previous applications refused – whether changed circumstances justify stay
COSTS – INDEMNITY- Whether appropriate case
http://www.sclqld.org.au/qjudgment/2009/QDC/026
Bradley Paul & Renita Kay Carmichael t/a Consol Management v Gregman Property Corporation Pty Ltd & Chalmers [2009] CCT B213-04
Claim upon a quantum meruit – work pending contract – contract never signed - the applicant’s claim cannot be based in contract, nor can it be affected by contractual matters, and can only be based on a quantum meruit which itself, has regard, primarily, to the value of the works, in one sense, the cost of the works to the respondents in certain circumstances
http://www.tribunals.qld.gov.au/B/bDecisions/B213-04-04%20DEC%2023-02-09.pdf
Leung v QBSA [2009] CCT CR009-08
Certifier, unsatisfactory conduct, professional misconduct, the certifiers building development approval was inconsistent with the original council development approval. The Building Act 1975 – sections 84,190,191,201,204,205 & Schedule 2, The Integrated Planning Act 1997 – Schedule 10
http://www.tribunals.qld.gov.au/B/bDecisions/CR009-08%20DEC%2020-02-09.pdf
Quigley v QBSA QR216-08
Application for summary decision by the Authority – review
application – standing – person affected – section 87
Queensland Building Services Authority Act 1991 –
statutory insurance scheme – meaning of “insured” in policy – estoppel.
http://www.tribunals.qld.gov.au/B/bDecisions/QR216-08%20DEC%2020-02-09.pdf
Cassar v QBSA [2009] CCT CR020-07
Unsatisfactory conduct and professional misconduct by building certifier, Building Act 1975 section 190, application for review
http://www.tribunals.qld.gov.au/B/bDecisions/CR020-07%20DEC%2018-02-09.pdf
Brown t/a T & DK Building Maintenance v Tsiotsios [2009] CCT BD240-08
Contract – variations not signed - defective work – unpaid monies
http://www.tribunals.qld.gov.au/B/bDecisions/BD240-08%20DEC%2017-02-09.pdf
Strong v Floor Level Australia Pty Ltd [2009] CCT BD108-07
Legal representation, Commercial and Consumer Tribunal
Act sections73 & 76
http://www.tribunals.qld.gov.au/B/bDecisions/BD108-07%20DEC%2017-02-09.pdf
Clarke v Conti - Symphony Homes Pty Ltd [2009] CCT BD084-08
Application in a proceeding – Commercial and Consumer Tribunal Act 2003, section 76(2)(e) - whether representation by a lawyer is appropriate – quantum of claim and counterclaim –
complexity of factual and legal issues – allegations of duress, fraud and theft - potential for shortening hearing – further directions made
http://www.tribunals.qld.gov.au/B/bDecisions/BD084-08%20DEC%2017-02-09.pdf
Ferguson v Nimmo & Wallace [2009] CCT BD383-08
Jurisdiction of the Tribunal - Domestic building work, an implied term in a contract for the sale of land - Queensland Building Services Authority Act 1991 section 77, Schedule 2, Domestic Buildings Contract Act section 8
http://www.tribunals.qld.gov.au/B/bDecisions/BD383-08%20DEC%2016-02-09.pdf
Wangelin v QBSA [2009] CCT QR066-06
Review application – decision to issue Direction to Rectify – onuses of proof on Queensland Building Services Authority
http://www.tribunals.qld.gov.au/B/bDecisions/QR066-06%20DEC%2013-02-09.pdf
Batson v Cannard [2009] CCT BD198-07
Contract – re-stumping – claim for defective work – need for engineering evidence
http://www.tribunals.qld.gov.au/B/bDecisions/BD198-07%20DEC%2013-02-09.pdf
Tate ATF the Tate Family Trust v Nelson & Toparis-Nelson t/a CMN Building
[2009] CCT BN004-08
A claim for defective building work and the respondent failed to appear at the hearing.
Commercial and Consumer Tribunal Act 2003 – section 59
http://www.tribunals.qld.gov.au/B/bDecisions/BN004-08%20DEC%2012-02-09.pdf
Howe v QBSA [2009] CCT QR269-08
Jurisdiction – Application in a Proceeding for summary decision – section 72(8) of the Queensland Building Services Authority Act 1991
http://www.tribunals.qld.gov.au/B/bDecisions/QR269-08%20DEC%2010-02-09.pdf
Rosebanner Pty Limited v EnergyAustralia [2009] NSWSC 43
ENERGY AND RESOURCES – electricity – electricity providers, authorities and undertakings – whether presence of electricity infrastructure on private land constituted trespass – whether infrastructure lawfully installed by Sydney County Council under Municipal Council of Sydney Electric Lighting Act 1896 and/or Public Works Act 1912 - whether EnergyAustralia had lawful authority to maintain presence of infrastructure under Electricity Supply Act 1995 – HELD – no trespass as infrastructure lawfully installed and maintained on land.
CONTRACTS – general contractual principles – offer and acceptance - whether parties entered binding contract obliging EnergyAustralia to remove infrastructure – whether agreement reached by which parties intended immediately to be bound – HELD – no contract formed – no agreement reached – no objectively ascertainable intention immediately to be bound.
http://www.austlii.edu.au/au/cases/nsw/supreme_ct/2009/43.html
Roluke Pty Ltd v Lamaro Consultants Pty Ltd (No. 2) [2009] NSWCA 21
Damages award was the sum of $161,940, attributable to the cost of removing and reinstating a waterproof membrane on a concrete slab - reassessment following principal judgment - costs
http://www.austlii.edu.au/au/cases/nsw/NSWCA/2009/21.html
