CCP Law

24/04/2024

An interview was published today by the The College of Law Australia on Building Industry Regulatory Reform. The interview highlights the importance of regulatory reform in the sector. If you're interested in construction law, , , , or in general this interview might be worth a read

As building defects increase so do the legal complications for homeowners and property lawyers, this is especially the case in Victoria where widespread cladding issues have caused significant risks for homeowners. In light of these issues, regulatory reform has taken place in Victoria including the...

05/03/2024

An article I co-authored with Bronwyn Weir and Dr Matthew Bell for the March edition of the Law Institute Journal on building industry regulatory reform in Victoria.

04/08/2023

A column I wrote for the August edition of the Law Institute Journal on building industry reform.

23/01/2021

Aluminium composite panels with a core of less than 93 per cent inert mineral filler and expanded polystyrene products will be banned as part of a wall system in Victoria under a declaration made on 28 December 2020 under s192B of the Building Act, which will come into effect on 1 February 2021.

08/11/2020

In Victoria, from 11:59pm tonight, 8 November 2020:
* The 25 kilometre travel limit will be removed
* The border around regional Victoria border, the "ring of steel" will be removed
* Overnight accommodation will be open with some restrictions: one single household plus two other adults from other households and their children.
* Venues will increase to 40 people inside and 70 outside
* Faith gatherings will increase to 50 outdoors and 20 inside
* Funerals, up to 20 indoors and 50 outdoors.
* Care facility visits, one household per day or two hours
* Time limits on partners visiting maternity wards will go, but individual wards may have their own rules in place
* Gyms and physical recreation will be allowed 20 per venue, 10 per space.
* Indoor noncontact sport for under18s, a limit of 20.
* Indoor pools will allow 20 people.
* Indoor skate parks, indoor trampoline centres, libraries, toy libraries and community venues, play centres and galleries, cinemas, museums, all 20 per venue all 20 per space, depending on the sector.
* Gaming machines, 10 people per venue.
* The casino will be able to have 10 people per room with a maximum of 10 separate rooms being used, for electronic gaming machines and tables.
* Face masks will still be compulsory
* People must still work from home if they are able
* Public gatherings the 10 person limit remains in place.
* Weddings also retains a 10 person limit for indoor or outdoor weddings.

02/09/2020

Victorians will be given an extra two years to pursue legal action against builders responsible for installing combustible cladding on their homes under legislation being introduced to the Victorian Parliament today.

https://www.premier.vic.gov.au/extension-victorians-seeking-cladding-cost-claims?fbclid=IwAR3750sfSD6w3kXpHOozbCm22VFe9QwN1psoPx-eqwKLE9UBEqXpg0kCJ58

05/08/2020

From 11:59pm on Wednesday 5 August, in Melbourne, employers that require their staff to attend a work site must issue a worker permit to their employees – this is the employer’s responsibility. For sole practitioners, you are required to fill out the permit as both an employer and employee.

Penalties of up to $19,826 (for individuals) and $99,132 (for businesses) will apply to employers who issue worker permits to employees who do not meet the requirements of the worker permit scheme or who otherwise breach the scheme requirements.

There will also be on-the-spot fines of up to $1,652 (for individuals) and up to $9,913 (for businesses) for anyone who breaches the scheme requirements. This includes employers, and employees who do not carry their worker permit when travelling to and from work.

Please refer to the website for further details and access to the Permitted Workers Scheme application form

https://www.justice.vic.gov.au/permitted-worker-scheme.

Information about the Permitted Worker Scheme covering workplaces in Melbourne, Victoria from 11.59pm Wednesday 5 August.

21/07/2020

New JobKeeper rules apply from 28 September 2020. Please see attached:https://treasury.gov.au/sites/default/files/2020-07/Fact_sheet-JobKeeper_Payment_extension.pdf

16/06/2020

A column I wrote on combustible cladding, published in the June edition of the Law Institute Journal

04/06/2020

HomeBuilder provides eligible owner-occupiers (including first home buyers) with a grant of $25,000 to build a new home or substantially renovate an existing home. HomeBuilder will assist the residential construction market by encouraging the commencement of new home builds and renovations this year.
Accessing homebuilder
WHAT IS HOMEBUILDER?
HomeBuilder is a time-limited, tax-free grant program to help the residential construction market to get through the Coronavirus pandemic.
HomeBuilder will provide eligible owner-occupiers (including first home buyers) with a grant of $25,000 to build a new home or substantially renovate an existing home.
WHEN CAN I ACCESS HOMEBUILDER?
HomeBuilder will be available for building contracts signed between 4 June 2020 and 31 December 2020, where construction or renovation commences within three months of the contract date.
HOW CAN I ACCESS HOMEBUILDER?
You should contact your relevant State or Territory authority on when and how to apply for HomeBuilder.
You will be able to apply for HomeBuilder when the Government of the State or Territory that you live in, or plan to live in, signs the National Partnership Agreement with the Commonwealth Government.
WHEN WILL I RECEIVE HOMEBUILDER?
HomeBuilder grants will be paid by the relevant State or Territory authority provided the applicant meets the eligibility criteria.
AM I ELIGIBLE TO RECEIVE HOMEBUILDER?
To access HomeBuilder, owner-occupiers must meet the following eligibility criteria:
• you are a natural person (not a company or trust);
• you are aged 18 years or older;
• you are an Australian citizen;
• you meet one of the following two income caps:
$125,000 per annum for an individual applicant based on your 2018-19 tax return or later; or $200,000 per annum for a couple based on both 2018-19 tax returns or later;
• you enter into a building contract between 4 June 2020 and 31 December 2020 to either:
build a new home as a principal place of residence, where the property value (house and land) does not exceed $750,000; or
substantially renovate your existing home as a principal place of residence, where the renovation contract is between $150,000 and $750,000, and where the value of your existing property (house and land) does not exceed $1.5 million;
Last updated: 4 June 2020

• construction must commence within three months of the contract date.
Owner-builders and those seeking to build a new home which will be used as an investment property, or renovate an existing home which is an investment property, will not be eligible for HomeBuilder.
The registered or licensed builder (depending on the state or territory) must demonstrate that the contract price for the new build or substantial renovation is no more than a comparable product (measured by quality, location and size) as at 1 July 2019, if requested by the purchaser.
IS THERE A LIMIT TO HOW MANY PEOPLE CAN GET HOMEBUILDER?
No. HomeBuilder is an uncapped, time-limited grant.
I ALREADY OWN LAND BUT HAVEN’T SIGNED A CONTRACT TO BUILD A NEW HOUSE – AM I STILL ELIGIBLE?
Yes, if you meet the following criteria:
• If you own a property (house and land), and knock the house down to rebuild – this will be counted as a substantial renovation, and therefore subject to the renovation price range of $150,000 to $750,000 provided the total value (house and land) of the property does not exceed $1.5 million pre- renovation;
• If you own vacant land before 4 June 2020, and then build, the total value of the land and new build cannot exceed $750,000; or
• If you buy the land after announcement, and then build, the total value of the land and build cannot exceed $750,000.
WHAT TYPES OF DWELLINGS ARE ELIGIBLE UNDER HOMEBUILDER?
All dwelling types (house, apartment, house and land package, off-the-plan, etc) are eligible under HomeBuilder, in accordance with the requirement that the owner-occupier must contract to build a new dwelling or substantially renovate their existing dwelling. The applicant must also meet the eligibility requirements outlined above.
WHAT ARE THE PRICE CAPS ASSOCIATED WITH HOMEBUILDER?
HomeBuilder is subject to two prices: a contract price cap (for new builds and renovations) and an income cap for applicants.
Contract price cap
A national price cap of $750,000 will apply for new home builds. This means that the value of new builds (house and land), house and land packages, and off-the-plan purchases must not exceed $750,000 to be eligible for HomeBuilder.
For renovations, a building contract price range of between $150,000 and $750,000 will apply and the total value of your property before renovation must not exceed $1.5 million.
Income price cap
Eligible applicants must meet one of the following two income caps:
• $125,000 per annum for an individual applicant based on the 2018-19 tax return or later; or
• $200,000 per annum for a couple based on their combined 2018-19 tax return or later.
The income price cap, as well as the eligibility criteria for the applicant, were chosen to reduce complexity as they align with the Commonwealth Government’s First Home Loan Deposit Scheme.
Last updated: 4 June 2020 2

IS A HOMEBUILDER GRANT TAXED?
No – a HomeBuilder grant will not be taxed. This is consistent with existing state and territory First Home Owner Grant programs.
WHAT RENOVATIONS WILL BE ELIGIBLE?
To be eligible for HomeBuilder, the value of renovations must be within the price range of $150,000 and $750,000, the total value of your existing house and land must not exceed $1.5 million, and construction must commence within three months of the contract date.
Renovations must improve the accessibility, liveability and safety of the property. This excludes building a tennis court, pool or shed for the renovation contract for eligibility purposes.
Renovations must be completed by a licenced or registered builder (depending on the state or territory). In addition, any building or renovation contract entered into must be at arm’s length. This means the contract must be made by two parties freely and independently of each other. The terms of the contract should be commercially reasonable and the contract price should not be inflated compared to the fair market place.
I AM NOT A FIRST HOME BUYER – CAN I ACCESS HOMEBUILDER?
Yes. Provided you meet the eligibility criteria, you can apply for a HomeBuilder grant. However, HomeBuilder is not available for investment properties or to owner-builders.
HOW DO I APPLY?
You will be able to apply for HomeBuilder through your relevant State or Territory revenue office or equivalent authority, once the State or Territory Government that you live in (or plan to live in) signs the National Partnership Agreement.
States and Territories will backdate acceptance of HomeBuilder applications to 4 June 2020 once the National Partnership Agreement is signed.
You should contact your relevant State or Territory revenue office for more information about when and how you will be able to apply for HomeBuilder.
WHAT DOCUMENTATION WILL I NEED TO PROVIDE?
The State or Territory revenue office will require certain documents to process your application. It is expected that you will need to provide the following at a minimum:
• proof of identity;
• a copy of the contract, dated and signed by you and the nominated registered or licenced builder;
• a copy of the builder’s registration or licence (depending on the state you live in);
• a copy of your 2018-19 tax return (or later) to demonstrate your eligibility against the income cap; and
• documents such as council approvals, building contracts or occupation certificates and evidence of land value.
More information on the documentation you will need to provide will become available through the relevant State or Territory authority.
WHEN WILL I KNOW IF MY HOMEBUILDER APPLICATION IS SUCCESSFUL?
The relevant state or territory administering agent will notify you of the outcome.
Last updated: 4 June 2020 3

WHAT HAPPENS IF MY HOMEBUILDER APPLICATION IS NOT SUCCESSFUL? CAN I APPEAL? WHO SHOULD I APPEAL TO?
If you are dissatisfied with the outcome of your HomeBuilder application, you can request that the matter is referred to the relevant state or territory dispute resolution body.
More information on the appeals process will become available in due course.
WHAT HAPPENS IF THERE IS A CHANGE IN CIRCUMSTANCE AND I’M NO LONGER ELIGIBLE?
If your circumstances change after you have applied for HomeBuilder but have not yet received the payment, and no longer meet the eligibility criteria, you will need to notify your State or Territory revenue office immediately.
WHO PAYS HOMEBUILDER AND WHO RECEIVES IT?
The relevant State or Territory revenue office will distribute the $25,000 grant directly to the applicant.
Implementation
HOW WILL THE GOVERNMENT IMPLEMENT HOMEBUILDER?
HomeBuilder is expected to be implemented via a National Partnership Agreement, signed by the Commonwealth and State and Territory Governments. This approach will draw on existing State and Territory mechanisms to distribute the HomeBuilder payments.
Integrity measures
WHAT INTEGRITY MEASURES IS THE GOVERNMENT IMPLEMENTING?
HomeBuilder is subject to strict eligibility criteria, price caps and income caps to manage demand and support residential construction activity.
Owner-builders and those seeking to build a new home or renovate an investment property are ineligible for HomeBuilder.
The registered or licensed builder (depending on the State or Territory) must demonstrate that the contract price for the new build or substantial renovation is no more than a comparable product (measured by quality, location and size) as at 1 July 2019, if requested by the purchaser.
The renovation works must be to improve the accessibility, safety and liveability of the dwelling. It cannot be for additions to the property such as swimming pools, tennis courts, outdoor spas and saunas, sheds or garages (unconnected to the property).
In addition, any building contract entered into must be at arm’s length. This means the contract must be made by two parties independently of each other and without some special relationship, such as being a relative. The terms of the contract should be commercially reasonable and the contract price should not be inflated compared to the fair market price.

Source: treasury.gov.au 4 June 2020

19/05/2020

Useful information regarding the commercial tenancy relief scheme in response to coronavirus (COVID-19) from the Victorian Small Business Commission

Please note the information on this page is not to be taken as specific legal advice. If you need assistance in resolving...

02/03/2020

What is a material fact?
A material fact is a fact that would be important to a potential purchaser in deciding whether or not to buy any land. In the context of a proposed sale of land, a material fact is one that influences a purchaser in deciding whether or not to buy any land at all, or to buy land only at a certain price.
A fact is not innuendo, gossip or mere speculation. However, an opinion may be a “material fact”, if it is an expert opinion that is honestly held on reasonable grounds, and the vendor or agent have knowledge of that expert opinion.
Failure to disclose a fact alone is not sufficient to establish an offence under s12(d). The fact must be material. A fact can be 'material' in two ways:
1. Generally: a fact that an average, reasonably informed purchaser with a fair-minded understanding of the property market, including the role of an estate agent, would generally regard as material in their decision to buy land (examples are provided below).
2. Specifically: if a fact about land is known by the vendor (or the vendor’s agent, including an estate agent) to be important to a specific purchaser, it can be material, even if other agents and consumers would not generally consider that fact to be important or of significance to them. This knowledge could arise if (for example) a particular purchaser:
a) asks a specific question about the land of the vendor or the vendor’s agent (including their estate agent), and/or
b) where a purchaser informs the vendor/agent of their intended use of the land.
Further indications which would be relevant to determining whether something is a material fact include:
• whether the fact is only known by the vendor
• the reaction of other potential purchasers to the fact, including whether knowledge of the fact may impact a potential purchaser’s willingness to buy land, and
• whether the fact results in the property being in a rare or unusual category or position.
Vendors or agents who have knowledge of material facts cannot rely on purchasers becoming aware of them through making ‘usual inquiries’ or following the Due Diligence Checklist to avoid disclosure. General examples of material facts about land which are known to the vendor or agent but which may not be obvious to a potential purchaser include (but are not limited to) circumstances where:
• prior tests or investigations have revealed (or the vendor or agent otherwise knows of) a defect in the structure of the building, a termite infestation, combustible cladding, asbestos (including loose-fill asbestos insulation) or contamination through prior uses of the land,
• the underlying cause of an obvious physical defect is not readily apparent upon inspection (for example, whilst a large uncovered crack in a wall would be obvious to a purchaser upon inspection, the underlying reason for the crack, such as defective stumping, may not);
• there has been a significant event at the property, including a flood, or a bushfire,
• there is a history of pesticide use in the event the property had been used for horticulture or other agricultural purposes,
• there are restrictions on vehicular access to a property that are not obvious during a property inspection (such as truck curfews or where access is via an easement that is not apparent on the Certificate of Title or plans),
• facts about the neighbourhood surrounding the property which may not be immediately apparent upon inspection (such as sinkholes, surface subsidence, development proposals) that would likely affect the use and enjoyment of the property to a greater extent than the usual disturbances and inconveniences of occupying land of the kind and in the local area of the land being sold,
• building work or other work done without a required building permit, planning permit or that is otherwise illegal,
• the property during the current or previous occupation has been the scene of a serious crime or an event which may create long-term potential risks to the health and safety of occupiers of the land, such as:
o extreme violence such as a homicide
o use for the manufacture of substances such as methylamphetamine, or
o a defence or fire brigade training site involving the use of hazardous materials.
There is a community expectation that homicides that have occurred at a property be disclosed to potential purchasers. Other known acts of extreme violence should be disclosed if a potential purchaser makes a specific enquiry. While these circumstances may not be a physical barrier to the use of the property, they may materially affect a purchaser’s decision to buy the land.
Defects and damage arising from prior significant events of the kind specified above, and contamination from prior uses of the land will not be considered material if they have been fully remediated, and no further repairs or other works (including ongoing work) will need to be carried out in the future. However, if a potential purchaser asks a specific question relating to defects and damage arising from prior significant events, or from contamination arising from prior uses of the land, those questions must still be answered by the vendor fully and frankly and to the best of the vendor’s knowledge.
Positive enhancements or improvements made to a property such as renovations are likely to be disclosed in the course of marketing land for sale. Positive information about land for sale, if withheld, is not of its nature the kind of information which is likely to “induce” a sale.
When to disclose material facts
Estate agents (or vendors where they are not using an estate agent) should disclose all known material facts to potential purchasers as soon as they indicate that they are considering purchasing the property. They must also make continuing disclosure if further material facts become known until the property is sold.
Generally, material facts will not be concealed from purchasers if they are disclosed:
• in marketing material or information statements; or
• in a section 32 statement or contract of sale; or
• on a physical inspection of the property where they are clearly visible; or
• by specific disclosures made to particular purchasers in the course of negotiations; or
• before the start of a public auction.
However, specific disclosure of a material fact to a particular purchaser will be required where the vendor or agent knows that the material fact has not come to the attention of the purchaser by other means.
Vendors are not required or expected to carry out tests and investigations of the property to determine if there are any unknown problems that ought to be disclosed, other than as may be required to prepare a section 32 statement.
However, if a potential purchaser asks a vendor or a vendor’s agent a question about a property, before that property is sold, the vendor or the vendor’s agent must answer that question fully and frankly and to the best of their knowledge.
If the vendor or a vendor’s agent has no knowledge of the matters raised by the potential purchaser, they can advise that potential purchaser that they do not know.
What should vendors do?
Vendors should prepare the property for inspection by potential purchasers without taking any steps to hide defects or any other important feature which would otherwise come to the attention of someone doing an inspection. They should carefully consider all information known to them or disclosed to them by their solicitor or conveyancer after having conducted the usual searches and inquiries for a section 32 statement and disclose any known material facts to their estate agent prior to the marketing of the property. Vendors should answer all inquiries about the property put to the vendor by purchasers through their agent as fully and frankly as possible.
If vendors disclose material facts to their estate agent for the purpose of answering questions asked by potential purchasers, acting reasonably and diligently, they have discharged their obligation to not knowingly conceal material facts, and the burden of disclosure of those material facts falls upon the estate agent.
If the vendor is selling the property without an estate agent, the vendor should answer all questions about the property put to them by purchasers as fully or frankly as possible in the circumstances.
What should estate agents do?
Estate agents should discuss with vendors any material facts that are likely to be the subject of statements or representations by the estate agent in the course of marketing the property. During this process, it is important for the estate agent to inspect the property, read the section 32 statement and contract and gather information from the vendor and their solicitor or conveyancer on aspects of the property which are material to the market to assist them in accurately and honestly representing the property.
The estate agent should answer all inquiries by purchasers as fully and frankly as possible in the circumstances, including by referring those inquiries back to the vendor or the vendor’s solicitor or conveyancer as necessary and diligently following up those responses.
These pro-active steps are also required of estate agents under the Estate Agent (Professional Conduct) Regulations 2018 which require an estate agent to act fairly, honestly, in good faith and in the vendor’s best interests. It is also best practice if the estate agent provides potential purchasers with a copy of the section 32 statement and contract of sale at open for inspections and via email as early as possible in the marketing campaign.
- From the CAV website 2.3.20