Author: baron + associates

The High Court has clarified that statutory proportionate liability regimes are applicable in arbitration proceedings, a development with significant implications for construction and commercial contracts. Tesseract International Pty Ltd v Pascale Construction Pty Ltd [2024] HCA 24 overturned the South Australian Court of Appeal’s earlier decision. The High Court confirmed that defendants can rely on proportionate liability even when third-party wrongdoers are not parties to the arbitration.

Proportionate liability limits a defendant’s responsibility to the extent of their contribution to the claimant’s loss. This places the burden of pursuing other concurrent wrongdoers onto the claimant, who may need to initiate separate proceedings or seek the joinder of third parties. The ruling departs from the traditional common law approach, under which a claimant could recover the full loss from one defendant, who would then be responsible for pursuing contributions from other wrongdoers if necessary.

This case arose from a dispute over engineering consultancy work performed by Tesseract International Pty Ltd, who argued that other parties shared responsibility for the losses claimed by Pascale. The High Court confirmed that proportionate liability provisions under the Competition and Consumer Act 2010 (Cth) can apply in arbitration, unless expressly excluded in the arbitration agreement.

A recent NSW Supreme Court decision highlights the importance of precision in contract variations and clarifies the legal status of email communications in commercial transactions. In PF 473 Pty Ltd v Qasim [2024] NSWSC 874, the Court considered whether email exchanges between parties and their respective solicitors could amend the terms of an existing loan agreement and mortgage.

The case involved a $2.8 million loan from PF 473 Pty Ltd to Rohailla Holdings Pty Ltd, secured by a registered mortgage over properties. After the loan agreement and mortgage were executed, the parties sought to adjust repayment schedules and interest rates via email. Ms Qasim, the guarantor of Rohailla Holdings Pty Ltd, argued that the email communications did not reflect her instructions and that formal requirements under the Conveyancing Act 1919 (NSW) were not satisfied.

The Court disagreed, finding that the emails clearly demonstrated a mutual intention between the parties to vary the agreement. Importantly, the email correspondence was deemed “in writing” and “signed” under the Interpretation Act 1987 (NSW) and the Electronic Transactions Act 2000 (NSW). Justice Faulkner confirmed that clauses in contracts requiring variations to be in writing do not invalidate an otherwise enforceable amendment, even those made by email. He also emphasised that the registered mortgage remains the key document in defining the lender’s rights, and that its terms will prevail over any informal variations.

The NSW Court of Appeal has recently clarified two issues that frequently cause disputes under the Building and Construction Industry Security of Payment Act 1999 (NSW) (‘SOP Act’): when service by email is valid, and whether early service of an adjudication notice can be corrected so the notice still has legal effect.

In McVitty Grove v BPB Earthmoving Pty Ltd [2025] NSWCA 103, a claim for payment and then a notice of intention to adjudicate were sent by email. McVitty Grove argued that they had never “specified” that email address for service under Section 31(1)(d) of the SOP Act and had not read the emails until much later. Therefore, from this view, service by email was not valid and the notice of intention to adjudicate was sent too early under Section 17(2) of the SOP Act. The Court disagreed, finding that by previously using the same email address for invoices and other correspondence, McVitty Grove had “impliedly specified” the email address for service. Importantly, under the Electronic Transactions Act 2000 (NSW), an email is considered served when it is “capable of being retrieved”, regardless of whether it is opened.

The Court also rejected the notion that an adjudicator’s good faith could save a notice served too early. Section 17(2) imposes strict timeframes, and an adjudicator cannot exercise jurisdiction where a notice has been served prematurely.

This case highlights two important points: an email address used in business dealings may be used as an address for service, and the timing of adjudication notices plays a crucial role in determining whether they are effective.

Keeping your estate plan up to date is one of the simplest ways to protect your assets and avoid future disputes. At Baron + Associates, we regularly assist clients with reviewing and updating their wills to ensure their wishes are carried out clearly and effectively. Outdated wills can cause significant issues. They may no longer reflect your intentions, exclude family members, or overlook changes to your assets and relationships. They may also be vulnerable to legal challenge if circumstances have shifted since the will was signed. Disputes over wills are also becoming increasingly common, as in NSW eligible people can bring a family provision claim if they believe they have been left without adequate provision.

For example, in the case of Lodin v Lodin (No 2) [2017] NSWSC 10, a former spouse brought a successful family provision claim, as the Plaintiff claimed she made an indirect contribution to the deceased’s estate by raising their child. Supreme Court of NSW accepted that, despite a financial settlement after divorce, there were still grounds for a claim due to ‘changed circumstances.’ This shows the importance of reassessing wills following relationship changes like divorce, remarriage, or estrangements to ensure updated intentions and reduce the risk of challenge.

At Baron + Associates, we take a thorough approach to estate planning. Our team has extensive experience:

• Drafting and updating wills
• Advising on testamentary intentions, tax implications and dispute prevention
• Preparing powers of attorney and enduring powers of attorney
• Preparing statements of wishes and succession plans
• Probate and administration of estates
• Representing parties in estate disputes

If it has been several years since you made your will, or your personal or financial circumstances have changed, we encourage you to review it with the help of baron + associates.

From the 2025 Land Tax Year, principal place of residence (PPR) exemption will only be available to owners who own at least 25% of the property, either solely or jointly, and meet PPR eligibility requirements as set out by Revenue NSW. These include basic conditions to use and occupy the property as their principle place, only claim one exemption per family worldwide, be a natural person and have continuously used the property solely for residential purposes before the relevant taxing date of 31 December. A PPR can be parcel of residential land or a strata lot (e.g. caravan on land does NOT constitute a building as it is mobile and ‘not affixed’).

Further, only particular portions of PPRs may be used as rentals and workspaces, and if renovation is undertaken before moving into a PPR, individuals must use the house for 6 months following the completion of construction. These details can be proven by providing accepted documents like utility bills, removalist invoices, licence address history or insurance papers. Council land and water rates are not accepted. If individuals believe they should be exempt but do not meet these criteria, they may consult the Chief Commissioner of State Revenue.

Residents may apply via Land Tax Online by 31 March or the due date on their notice of assessment. Landowners who are eligible to claim a PPR exemption prior to 1 February 2024 and own less than a 25% share in the property may continue to claim the exemption for the 2024-25 tax years. Landowners who purchase or acquire a property on or after 1 February 2024 and do not meet the minimum ownership requirement will become liable for land tax starting from the 2025 land tax year.

The NSW Supreme Court has handed down an important ruling for developers in The Owners – Strata Plan No 93543 v Zhang (No 3) [2025] NSWSC 571, clarifying how statutory warranty periods under the Home Building Act 1989 (NSW) are calculated in staged developments.

The dispute arose in a project involving two four-storey apartment blocks with a shared basement car park and common spaces. The developer argued that each block should be treated as a separate building under Section 3C(3) of the Home Building Act 1989 (NSW), which would mean different limitation periods applied to each. On that basis, the developer argued that proceedings for defects in one block were said to be out of time because they were filed more than two years after the issue of an interim occupation certificate.

The Court rejected this argument, finding that the shared basement car park, which could only be accessed from one building, resulted in the two buildings being functionally interdependent and therefore not “separate buildings.” Instead, both apartment blocks formed part of a single building, with the statutory warranty period running from the date of the final occupation certificate.

The ruling highlights the importance for developers and property owners to understand the requirements for valid occupation certificates and the timing of statutory warranty claims.

Major reforms to NSW strata and community scheme laws began 1 July 2025, with further changes to occur later in 2025.

Key changes include:

• Minor Renovations: Auto-approved if no written refusal in 3 months (if by-law allows committee to decide).
• Sustainability: Bans by-laws that block eco upgrades based on appearance (unless heritage-listed). Sustainability must be discussed annually and budgeted in capital works fund.
• Accessibility: Only a majority vote required to approve changes for disability access.
• Unfair Contracts: Bans one-sided terms in new or renewed contracts (e.g. strata management, cleaning).
• Committee Duties: Must act honestly, fairly, and protect privacy. Chairs must run fair, orderly meetings.
• Repairs: No delay allowed if damage affects safety or access, even if legal action is pending. Owners have 6 years to claim for failure to repair, and maintenance responsibilities must be recorded in resolutions.
• Assistance Animals: Only one form of evidence required. By-laws must comply.
• Manager Reporting: 6-monthly reports required. Certain indemnity/liability clauses banned in contracts.
• Utility Contracts: Embedded network deals limited to 3 years or expire at first AGM.

In The Owners – Strata Plan 94800 v Aushome Construction Pty Ltd & Anor [2025] NSWDC 143, the District Court of NSW clarified an important issue for homeowners: whether the Court can order a builder to carry out rectification work under the Home Building Act 1989 (NSW). The case involved major defects in a residential apartment building. The owners corporation first brought a warranty claim in NCAT, but the matter was later transferred to the District Court. The owners asked the Court to either award damages or issue a “work order” requiring the builder to fix the defects. The builder argued the Court didn’t have power to issue such an order, then later argued a work order was the only appropriate outcome.

The Court ultimately ordered damages, finding it would be inappropriate to require the builder to return to rectify the defects given the severity of the issues and the breakdown of trust. However, the Court noted that it is arguable that it has power to issue a work order under section 48O of the Act when hearing a matter that would otherwise fall within NCAT’s jurisdiction. While it didn’t need to decide the issue, the Court pointed out that the Act encourages fixing defects over paying damages, and that the District Court shares jurisdiction with NCAT for claims under $500,000. This decision leaves opportunity for rectification orders to be made in the District Court.

A class action, by Sydney CBD businesses disrupted by the five-year construction of the light rail, is now before the High Court of Australia, raising key questions about the limits of government immunity from nuisance claims. The plaintiffs argue that dust, noise, and a collapse in foot traffic between 2015 and 2020 caused unreasonable interference with their land use, despite the works being lawfully authorised. While the NSW Supreme Court initially awarded $4 million in damages, the Court of Appeal overturned that decision, holding that statutory authority shielded Transport for NSW from liability, even for prolonged disruption.

The High Court must now determine whether authorised public works can still amount to nuisance when their impacts on nearby businesses become excessive. Transport for NSW warns that a ruling in the businesses’ favour would unsettle infrastructure delivery, while the appellants argue that the law has long allowed nuisance claims where interference is substantial and the use is extraordinary. The decision will have national implications as light rail projects continue across major cities.

In January of 2025, an 120-year-old Magnolia tree located on Henrietta Street was removed without authorisation. The tree formed part of a heritage-listed property under Schedule 5 of the Waverly Local Environmental Plan, and its removal has triggered significant legal and community concern. Pursuant to the Environmental Planning and Assessment Act 1979 (NSW), works affecting heritage-listed items require formal development consent. Section 4.1 of the Act contemplates Tier 1 penalties for deliberate and serious contraventions, which includes unauthorised works on heritage items. These penalties may reach up to $1 million for individuals and $5 million for corporations. Despite the seriousness of the breach, the penalty imposed in May this year was limited to a $3000 fine.