2017 - articles & insights

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Separable Parts in Staged Development

The Strata Building Bond Scheme, which was introduced by the Strata Management Act 2015 (the Act), provides that in situations where the Act applies (See New strata law and building bond regime are set to commence), the developer must give a security (“building bond”) to the Secretary of the Department of Finance, Services and Innovation …
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Are you Guaranteeing an Indemnity?

Introduction It is common for a contractor to provide an indemnity and/or a guarantee to a principal under a construction contract. However, contractors must know that the two are fundamentally different. They should not take on additional obligations/risks than what is agreed between the parties under the construction contract. For ease of understanding, we shall …
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Stamp Duty Relief for Australian-Based Foreign Developers

A bill has recently passed through both Houses of the NSW Parliament entitled the State Revenue Legislation Amendment (Surcharge) Bill 2017 (NSW) (Bill) which targets Australian-based developers that are foreign persons (Foreign Developer). It has received assent but is to commence on a date to be proclaimed. We await the proclamation, which is yet to …
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Changes To Fire Safety Requirements In The 2016 National Construction Codes – Could This Affect Your Project?

  Following the Lacrosse Apartments fire in Melbourne, the Australian Building Codes Board (ABCB) began to develop a comprehensive package of fire safety measures for high rise buildings which was to be incorporated into the next version of the National Construction Code (NCC). However, following the Grenfell Tower fire in London, the Building Ministers’ Forum …
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Deferral of Strata Building Bond Regime to 1 January 2018

The commencement of the strata building bond regime has been deferred from 1 July 2017 to 1 January 2018. This means that the regime will not apply if the construction contract (to carry out residential building work associated with a new strata scheme) was signed before 1 January 2018. The regime will apply if the …
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NSW Government to impose increased stamp duty and land tax surcharges on foreign persons (including foreign owned developers)

The NSW Budget Statement (released on 20 June 2017) has provided further details on how the increased stamp duty and land tax surcharges will affect foreign owned developers. To recap, on 1 June 2017, the NSW Government announced its intention to increase the surcharges as such: Summary Foreign owned purchasers of residential property will be …
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Proposed cap on foreign ownership in New Dwelling Exemption Certificates aimed at reducing pressure on housing affordability.

In the 2017-2018 Federal Budget the Government announced several changes aimed at reducing pressure on housing affordability, some of which affect foreign ownership of Australian residential property. The biggest change is the introduction of a cap on foreign ownership in new developments, through a condition on New Dwelling Exemption Certificates applied for after 7:30PM (AEST) …
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Changes to NSW Retail Leasing Legislation to Commence on 1 July 2017

On 5 April 2017, the New South Wales Government signed and sealed a Commencement Proclamation which will bring into effect the Retail Leases Amendment (Review) Act 2017 (NSW) (Act) on 1 July 2017 as the day on which that Act commences. Among other things, the Act will introduce tighter obligations on the lessor by way …
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Building Approval Statistics: what they are and what they mean to you

These statistics on Building from the Australian Bureau of Statistics (ABS) published in February 2017 show some very interesting trends. The salient figures worth noting is that, at the time of publication, there has been a slightly downwards trend for all building by 0.1% for the last 7 months but the ride down is bumpy …
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You, Me and the Garnishee

The first question clients ask when obtaining a favourable judgment is “how will we enforce this judgment against the debtor?”. The quickest and most effective way to enforce a judgment debt is to obtain a garnishee order from the Court. This article sets out the key elements of garnishee orders so that you can enforce …
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Creditors to be vigilant when using the statutory demand procedure to enforce an Adjudication Certificate

Introduction During the process of obtaining payment under the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOP Act), a Contractor (or Subcontractor) may, after obtaining an adjudication certificate and filing the certificate in the court of competent jurisdiction, serve a statutory demand on the Principal (or Contractor) demanding payment. In the matter …
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Adjudication determinations are not reviewable for non-jurisdictional errors of law

In our June 2016 issue of Construction, Property & Projects Insights (Issue 4), we discussed the first instance decision of Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2016] NSWSC 770, in which the Supreme Court of NSW held that adjudication determinations were subject to judicial review for non-jurisdictional errors of law on …
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High Court rules that a payment claim is invalid without a valid reference date

Introduction In our November 2016 Construction, Property & Projects Insights (Issue 5), we noted that the High Court was soon to release judgment in Southern Han Breakfast Point Pty Ltd (In Liquidation) v Lewence Construction Pty Ltd [2016] HCA 52 (Southern Han Decision), which would be the first time the High Court had given judgment …
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