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.
Category: Building and Construction Law
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.
Domestic Building Contracts Act 1995 (Vic) applies to multi-apartment developments: Burbank Australia Pty Ltd v Owners Corporation  VSC 160, 29 April 2015, McDonald J.
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.
The penalty doctrine and delay to practical completion caused by trivial events: Grocon Constructors (Qld) Pty Ltd v Juniper Developer No. 2 Pty Ltd & Anor  QSC 102, 23 April 2015, P. Lyons J
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.
Appeal against $1.8 million judgment in favour of domestic building insurer fails as appeal point not raised below
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.
New Bill brings sweeping changes to the domestic building protection regime and the regulation of building professionals in Victoria
After a 2 year review and consultation process, the Victorian government has introduced to parliament the most significant changes to the building industry since the Building Act in 1993 and the Domestic Building Contracts Act in 1995. Anyone practising in this area must be aware of these fundamental changes.
The fourth installment of the litigation involving an apartment complex in Chatswood. and the question whether a builder may owe a common law duty of care in a residential setting.
In Hooper v Metricon Homes, a house was built on a poorly built slab and foundation, causing the house to exhibit serious movement. The Tribunal awarded damages for demolition and rebuilding of the house.
The NSW Security of Payment Act provides that an adjudication certificate may be filed in court as a judgment for a debt and may be enforced accordingly. A party argued that this enforcement regime, which does not allow judicial scrutiny of the debt, conflicts with federal law and is unlawful. By a 2-1 majority, the Full Court of the Federal Court found no conflict.
A claimant in an expert determination challenged an interlocutory decision of the expert to refuse the claimant leave to amend its claim. After discussing the nature and purpose of expert determination, and construing the contract between the parties and the expert, the Court held that the expert did not err.
This is the second case note of two cases in which subsequent owners of a home have brought proceedings in respect of defects which are said to have arisen after purchase of the home. In determining whether the owners had suffered loss, the Tribunal considered whether the owners had constructive knowledge of ‘reasonably observable’ defects, also introducing the concept of the ‘untrained eye’.