The Critical Path – C&I Newsletter December 2024 

16 December 2024

Welcome to The Critical Path, HWL Ebsworth Lawyers’ Construction and Infrastructure newsletter featuring the latest developments in construction law, to help you stay on the critical path!

Should residential builders be entitled to make claims under the security of payment act against homeowners?

This article was written by Brian Rom, Partner and Tara Nelson, Senior Associate.

Currently, the Victorian Building and Construction Industry Security of Payment Act 2002 (SOPA) does not apply to contracts between a residential builder and a homeowner.

The Victorian Government announced in October that it supports, in principle, a recommendation to extend Victorian SOPA to construction contracts between homeowners and builders.

While there may be some risks for homeowners as they become fully acquainted with the legislation, in our view, these risks are outweighed by the urgent need to address the unfairness of the current prohibition of claims by builders against homeowners under SOPA.

Click here to read more.

Nicheliving – A case study of the WA Building Services Board’s scope of inquiry into the financial position of applicants for registration as a building services contractor

The article was written by Tom Wilson, Special Counsel and Caitlin Grehan, Associate.

The recent well-publicised challenges of Perth-based home builder, Nicheliving, have served as an interesting example of the matters that will be considered by the Western Australian Building Services Board (Board) when assessing applications for registration or renewal of registration as a building services contractor in WA.

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Babicka v ASD Corporation Aust Pty Ltd & Anor [2024] VSC 587

This article was written by Matthew Bliem, Partner and Nick Jarrett, Solicitor.

The Supreme Court of Victoria’s decision in Babicka v ASD Corporation Aust Pty Ltd [2024] VSC 587 (Babicka) reinforces the importance of understanding reference date requirements in Victorian construction contracts and how they relate to milestone payments. The Court confirmed that an adjudication application would fail as there is no “reference date” where a claimant does not achieve milestone conditions necessary under the Contract to entitle it to payment.

Click here to read more.

Goyder Wind Farm 1 Pty Ltd v GE Renewable Energy Australia Pty Ltd & Ors

This article was written by John Vozzo, Partner, Noel Williams, Associate, and Lara Centofanti, Law Clerk.

The decision of the South Australian Supreme Court in Goyder Wind Farm 1 Pty Ltd v GE Renewable Energy Australia Pty Ltd & Ors [2024] SASC 108 considers circumstances in which, under security of payment legislation, an adjudicator’s determination will be binding in any subsequent adjudication.

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Apportionment in NSW: is a more inclusive interpretation on the horizon for defendants?

This article was written by Leighton Moon, Partner, Patricia Oman, Senior Associate, and Nick Jarrett, Solicitor.

The NSW Court of Appeal decision in Gerrard Toltz Pty Ltd v City Garden Australia Pty Ltd (in liq) (No 2) (the Case),may assist defendants to use the Civil Liability Act 2002 (NSW) (CLA) to reduce their liability to plaintiffs regardless of the type of case pleaded by the plaintiff.  This contrasts with other case law that states that the plaintiff must have pleaded a case that is based on a failure to take reasonable care.

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191 Bells Pty Ltd v WJ & HL Crittle Pty Ltd [2024] NSWCA 221

This article was written by Sonya Kroon, Partner, Peter Yacoub, Senior Associate, and Kaitlin Taylor, Solicitor.

In 191 Bells Pty Ltd v WJ & HL Crittle Pty Ltd [2024] NSWCA 221 the court unanimously determined that, in a dispute regarding contamination found on land, a contractual obligation for a vendor to assist the purchaser “as far as possible in the due diligence process”:

  • does not create a positive obligation of voluntary disclosure of everything that might be relevant to the due diligence process; and
  • the vendor did not engage in misleading and deceptive conduct by its failure to disclose all matters relevant to contamination on the land.

Click here to read more.

Broader Net Cast in 2025 for Queensland Project Trust Accounts

This article was written by Colin Harris, Partner and Jaike Salmon, Graduate.

The statutory trust regime established under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) is legislated to complete its rollout by the end of 2025. Currently applying to State Government, Health and Hospital Services, and contracts valued above $10 million, the regime will broaden its scope in two stages across 2025. From 1 March 2025, all eligible building contracts exceeding $3 million will require the establishment of project and retention trust accounts. Later, on 1 October 2025, the threshold will lower to include contracts valued above $1 million.

Click here to read more.

The Cost of Ambiguity: Lessons from Hestbay v One Sector on Clear Contract Terms

This article was written by Colin Harris, Partner and Zeena Lederhose, Solicitor.

The Queensland Supreme Court’s decision in Hestbay Pty Ltd v One Sector Pty Ltd [2024] QSC 180 highlights the significant risks businesses face when contracts contain vague or conflicting terms. In this case, Hestbay’s claim for breach of contract was dismissed because it failed to provide clear evidence that One Sector had breached the contract. The Court found that the inconsistency between some of the contractual terms, particularly regarding performance standards, led to uncertainty and ultimately undermined Hestbay’s case.

Click here to read more.

Is your payment claim valid?  A timely reminder that strict compliance is required for protection under the security of payment regime

This article was written by Colin Harris, Partner and Kelly Brook, Senior Associate.

The decision by the Queensland Court of Appeal earlier this year in MWB Everton Park Pty Ltd as trustee for MWB Everton Park Unit Trust v Devcon Building Co Pty Ltd [2024] QCA 94 demonstrates the importance of ensuring payment claims meet the definition under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (BIF Act) to safeguard the protection provided by the security of payment regime.

This case serves as a reminder to avoid relying on payment claim templates which may not have regard to the matters relevant to the specific claims and  the requirements of the BIF Act,  emphasizing the importance of carefully preparing each claim to ensure it meets the statutory definition of a payment claim.

Click here to read more.


1[2024] NSWCA 232.

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