Building and Construction Industry Security of Payment Amendment Act 2018

On 21 November 2018 the NSW Government passed the Building and Construction Industry Security of Payment Amendment Act 2018 (the Act). The Act amends the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOPA) and forms part of NSW’s formal review of SOPA which commenced in 2015. The Amendments also form part of NSW’s response to the Murray Report into Security of Payment legislation around Australia. The Act will commence on a date to be appointed by proclamation.

Under section 7(2)(b) of the previous regime, SOPA did not apply to a construction contract for the carrying out of residential building work, within the meaning of the Home Building Act 1989 (NSW), on premises in which the contracting party is or proposes to be resident. The Act transfers this residential building work exemption from SOPA to the regulations. This amendment will allow the exemption to be refined or removed following further stakeholder consultation.

The Act also amends section 13(2) of SOPA by reinstating the requirement that all payment claims must state that it is made under SOPA. This amendment is particularly welcome to principals in the residential build to sell market, who may not otherwise realise that the processes of SOPA are being engaged.

To read more about the key provisions of the Act click here.

In the media

New home building remains solid despite credit crunch

“New home building held up well during the September 2018 quarter despite the tougher market conditions,” according to Master Builders Australia’s Chief Economist Shane Garrett. Recently released ABS figures on Construction Work Done indicate that new residential building work eased back by 1.8 per cent during the quarter but was still some 4.7 per cent higher than a year earlier (28 November 2018). More...

Australia's tallest timber building makes a towering case for eco-friendly construction

Lured by their superior sustainable qualities, high-rise developers around the world are increasingly turning to timber materials for construction, and a newly completed office tower in Australia is the latest shining example of this (27 November 2018). More...

Australia's first national building census launched

An Australian government-owned company has launched the country’s first building census which maps every building with a roof area of more than nine square metres. The data set collects information on the location, elevation, height, roof materials and footprint of a building as well as the presence of solar panels, nearby trees and swimming pools (21 November 2018). More...

New South Wales adopts Commonwealth security of payment recommendations

The Coalition Government welcomes legislation passing through the New South Wales Parliament to protect subcontractors working in the state’s construction industry. The reforms in NSW adopt key recommendations of the national Review of Security of Payment Laws (29 November 2018). More...

Engineering the future of New South Wales

NSW Treasurer Dominic Perrottet has welcomed new figures from the ABS which show the construction industry in NSW is booming (29 November 2018). More...

Multi-million dollar asbestos dumping fines

Asbestos dumpers now face multi-million dollar fines under new laws passed by the NSW Government (22 November 2018). More...

EPA targets illegal waste transporters

The NSW Environment Protection Authority (EPA) has joined forces with police, the ACT Government and local councils, targeting rogue operators supplying waste soil from construction sites marketed as “clean fill” to unsuspecting property owners (19 November 2018). More...

My house could collapse: WestConnex causing cracks in walls, residents claim

Umberto Galasso's house sits in North Strathfield, Western Sydney — 26 metres above the M4 East Westconnex tunnel. And since construction began he claims huge cracks have started appearing in his home (22 November 2018). More...

Subbies win with new laws

Sub-contractors and their families will have better financial security thanks to new laws which passed the NSW Parliament. Minister for Better Regulation Matt Kean said the security of payment laws will help stop subbies being left out of pocket for work completed each month (23 November 2018). More...

Published - articles, papers, reports

Decision support systems for a sustainable management of the indoor and built environment

Jan K. Kazak, Joost van Hoof; Indoor and Built Environment: 18 November 2018

Smart city and smart home concepts have become increasingly popular, especially in the last decade. Many people have positive notions of living in a smart city or smart home, but not too many users can really define what these concepts mean. More...

Matching markets in housing and housing assistance

Andrea Sharam, Martin Byford, Bilgehan Karabay, Sean McNelis, Terry Burke; Australian Housing and Urban Research Institute: 22 November 2018

This study identified five Australian housing markets that could use online technology to match highly specific ‘buyers’ and ‘sellers’. More...

ACI Construction Briefs

A fortnightly communication highlighting key updates related to Australia's construction industry.

ACI Construction Brief: US Hawks vs NZ Doves

Australian Bureau of Statistics

28/11/2018

Construction Work Done, Australia, Preliminary, Sep 2018 (cat no. 8755.0)

Practice and courts

AIBS Position on Proposed Fire Safety Verification Method in NCC BCA 2019

The AIBS Board has formed a view about the proposed introduction of a fire safety verification method into NCC BCA 2019. This was communicated to the ABCB Board for their consideration as they meet from 22nd November 2018. To see the position, members can access a copy of the letter sent to the ABCB here (22 November 2018).

ABCB Accessible Housing Options Paper: Consultation

The ABCB’s Accessible Housing Options Paper has been released for public consultation. The Options Paper provides a preliminary menu of options and costings on the possible inclusion of a minimum accessibility standard for housing in the NCC. More...

NSW: Combustible Cladding Regulation

Under the new Regulations, owners of certain buildings with external combustible cladding are required to register their building with the NSW Government through the Cladding Registration portal. For buildings occupied before 22 October 2018, the deadline for registration is 22 February 2019. Owners of new buildings will be required to register their building within four months of the building first being occupied (updated 28 November 2018). More...

New dates for Environmental Planning & Assessment Act updates

Councils, certifiers and other industry practitioners have more time to implement some of the recent EP&A Act updates. Changes affect new provisions for building and subdivision certification, Local Strategic Planning Statements for councils in the Greater Sydney Region and Community Participation Plans. While most of the changes will commence on 1 March 2018, there will be a number of other changes that will involve further design and consultation.

Cases

Catapult Constructions Pty Ltd v Denison (No 3) [2018] NSWCATAP 277

APPEAL- Home Building Act s.48O, Work order amended – costs of appeal – Appeal Panel jurisdiction as to costs in first instance proceedings s.81.

Ndaira v Allways Building NSW Pty Ltd [2018] NSWCATAP 279

RENEWAL PROCEEDINGS – Terms of work orders – lack of specificity – interpretation of work order – use of reasons for decision and extrinsic material – assessment of loss or refund following non-compliance with work order.

Florida Kitchens Pty Ltd v No 1 Cutting Service Pty Ltd [2018] NSWCATAP 281

APPEAL – Procedural fairness – whether preventing the continuation of a line of cross examination was a breach of procedural fairness BUILDING AND CONSTRUCTION – home building – parties to contract – contract not in writing – contractor unlicensed - whether contractor entitled to quantum meruit COSTS – whether special circumstances – relevance of offer made in Local Court before proceedings transferred to Tribunal – relevance of offer to costs on appeal.

Goodwin Street Developments Pty Ltd v DSD Builders Pty Ltd [2018] NSWCA 276

ADMINISTRATIVE LAW – judicial review – content of obligation to act in good faith – whether lack of good faith established by failure to “grapple with” all matters decision-maker required to consider – whether lack of good faith requires wilful blindness or conscious maladministration BUILDING AND CONSTRUCTION – adjudication of payment claim – review of adjudicator’s decision – circumstances in which adjudicator’s decision invalid for lack of good faith – whether decision reviewable for failure to “grapple with” all matters adjudicator required to consider – Building and Construction Industry Security of Payment Act 1999 (NSW), ss 10(1)(b), 22(2).

Gigg v Rodney Rodney Alan Wilks atf the Wilks Family Trust [2018] NSWCATAP 278

Consumer claim - waste water treatment system - alleged defective supply, installation and initial maintenance - no error of law affecting outcome - no basis for leave.

Nadarasa v Vansan Construction Pty Limited [2018] NSWCATAP 270

Appeal – home building claim – contract - construction and interpretation of home building contract – cl 17(a) of the BC4 Residential Building Contract (May 2012) –whether Tribunal erred in interpretation and application of the clause

Legislation

New South Wales

Proclamations commencing Acts

Water Management Amendment Act 2018 No 31 (2018-678) — published LW 30 November 2018

Regulations and other miscellaneous instruments

Access Licence Dealing Principles Amendment (Nomination of Water Supply Works and Extraction Points) Order 2018 (2018-670) — published LW 30 November 2018

Bills revised following amendment in Committee – 23 November 

Building and Construction Industry Security of Payment Amendment Bill 2018

Protection of the Environment Operations Amendment (Asbestos Waste) Bill 2018

Bills passed by both Houses of Parliament – 23 November

Building and Construction Industry Security of Payment Amendment Bill 2018

Fair Trading Legislation Amendment (Miscellaneous) Bill 2018

Protection of the Environment Operations Amendment (Asbestos Waste) Bill 2018

Snowy Hydro Corporatisation Amendment (Snowy 2.0) Bill 2018

Bills assented to

Building and Construction Industry Security of Payment Amendment Act 2018 No 78 — Assented to 28 November 2018

Fair Trading Legislation Amendment (Miscellaneous) Act 2018 No 79 — Assented to 28 November 2018

Protection of the Environment Operations Amendment (Asbestos Waste) Act 2018 No 80 — Assented to 28 November 2018

Snowy Hydro Corporatisation Amendment (Snowy 2.0) Act 2018 No 95 — Assented to 28 November 2018

For the full text of Bills, and details on the passage of Bills