Author: baron + associates

A recent case in the Supreme Court of Victoria has departed from the reasoning of NSW courts when it comes to imposing a time limit on bringing claims under s18 of the Australian Consumer Law (ACL) for misleading or deceptive conduct. In Brighton Australia Pty Ltd v Multiplex Constructions Pty Ltd [2018] VSC 246 the court held that a clause imposing a time bar of seven days on any claim under the ACL was invalid, as any restriction is an ‘unacceptable interference with the public policy underpinning the provisions.’ However, this differs from the approach taken by NSW courts in Lane Cove Council v Michael Davies & Associates [2012] NSWSC 727, where a similar clause was held to be valid, as it did not exclude the operation of the ACL but only regulated it. Going forward, contracts under Victorian and New South Wales law may differ on this point.

The Land and Environment Court has handed down a penalty of $64,000 and supervision requirements to a woman that illegally removed native trees from her neighbour’s property in Hunter’s Hill. In the recent case of Hunters Hill Council v Liu [2018] NSWLEC 108, Ms Liu was found guilty of soliciting a contractor to remove two Cheese Trees on her neighbour’s property, as they dropped leaves into her pool. The trees were protected under the EPA, and the court found that Ms Liu was reckless as to whether she needed the Council’s permission to remove them. Notably, the court ordered Ms Liu to plant two new Cheese Trees on her own property, whose growth would be monitored by the Council, in addition to the substantial fine.

The NSW Supreme Court has invalidated a decision of the Independent Liquor and Gaming Authority to vary the trading hours of the Sydney Junction Hotel in Bondi in the recent case of Rogers v The Independent Liquor and Gaming Authority (No 2) [2018] NSWSC 1177. In 2017, after receiving advice from the Commissioner of Police that the extended trading licence granted to the Hotel should be revoked, the Authority notified the Hotel of the Commissioner’s request and invited the Hotel to make submissions to the Authority. After hearing submissions, the Authority chose not to revoke the extended trading license but reduce it from closure at 3am to 1.30am.

The owner of the Hotel appealed this decision on the grounds that this was not a proposed decision, and that the Authority should have gone through a second process in which they considered all statutory requirements and given all parties a reasonable opportunity to make submissions in respect of the variation. The decision ultimately relied upon the construction of s51(13) of the Liquor Act 2007, and the court held the lack of due process invalidated the Authority’s decision.

Existing use rights allow for the use of land that was lawful, but subsequently became unlawful by a change to the local environmental plan (LEP) or other environmental planning instrument after the use had commenced. In the recent case of Saffioti v Kiama Municipal Council [2017] NSWLEC 65, the Land and Environment Court considered what land this benefit will be conferred to, and ultimately based their decision on whether the land had been subdivided.

In this case, Ms Saffioti owned a block of land on the NSW Southern Coast that, other than a small dwelling from the 80s, was covered in native vegetation. Her development proposal to build another small dwelling and garage on another part of the property was rejected by the council, who argued that the new zoning laws only allow for development for environmental conservation. The Council conceded that Ms Saffioti has existing use over the current dwelling, but argued that this could not be extended to the entire block. However the court considered the fact that the land had not been subdivided in any way, either physically or by use, and therefore found that the existing use right applied to the whole block and the development should proceed.

In the recent case of The Owners – Strata Plan No 66375 v King [2018] NSWCA 170 the NSW Court of Appeal ruled that immediate subsequent home owners are able to enforce statutory warranties against developers under s18C of the Home Building Act 1989. In this case, the Kings contracted with Beach Constructions to build a residential and commercial strata development on their land, but after residents moved into the buildings various defects were found, including missing seals on elevator doors and other fire and safety defects. These were not a result of the builders work, but rather design flaws that the builder had followed.

The Owner’s Corporation brought a claim against the Kings and Meridian Estates, a company of which the Kings were the sole directors. On first instance, the primary judge held the Kings were not developers because only Meridian Estates was party to the contract, however the Court of Appeal overturned this decision and ordered a judgement of over $5 million against the Kings. The court held that the Kings fell within the definition of developers and that the warranties guaranteed under s18C were designed for situations like these, where immediate subsequent purchasers could seek compensation from the person responsible for the defective work where there is no direct legal relationship.

Since 2016, regulations under the Strata Schemes Management Act 2015 have made it easier for strata owners to make cosmetic or minor changes to their property. Previously, all renovations required a special resolution with a 75% majority from the owner’s corporation in order to be approved. Now under s109 of the Act cosmetic changes such as painting, installing hooks or screws, or laying carpet do not require approval and minor renovations listed under s110 such as renovating a kitchen, installing air conditioners, installing hard floors or reconfiguring walls only require a general resolution (50% majority).

Major work is considered any work not laid out in the Act as either cosmetic or minor and will still require approval via a special resolution from the owner’s corporation. This often includes any changes to the buildings appearance, renovating bathrooms and other larger renovations that may affect the common property of the owner’s corporation.

The Federal government has passed an amendment to the Competition and Consumer Act 2010 that increases the maximum penalty a court can impose for breaching the Australian Consumer Law. The Treasury Laws Amendment (2018 Measures No. 3) Bill 2018 raised the maximum penalty from $1.1 million to either $10 million, three times the benefit obtained from the breach, or if that benefit cannot be determined, 10% of the businesses annual turnover.

This decision has been spurred by recent cases such as ACCC v Apple Pty Ltd (No 4) [2018] FCA 953, where the penalties given to giant corporations have been trivial compared to the company’s turnover. In this case, Apple was fined $9 million for telling consumers that they were not obliged to fix faults in their iPhones if the consumer had taken it to a third party for repair. However considering Apple’s US$48.35 billion dollar yearly profit, Justice Lee is just one of many that have noted that the penalty is the equivalent of ‘loose change’ to the tech giant. This is compared to the recent $6.8 billion fine given to Google in the EU for abusing its market dominance.

The NSW Government has recently passed the Modern Slavery Act 2018 which will require some companies to report on the risks of modern slavery, such as child labour practices of their suppliers overseas, within their company and supply chain. Under the new Act, companies with revenue of over $50 million and at least one employee in NSW will have to report on the company’s supply chains, foreseeable risks for modern slavery, any actions the company has taken to address those risks and the effectiveness of such actions. If a company either fails to prepare the report in a timely manner or fails to publish the report to the general public, they may face penalties of up to $1.1 million.

The NSW Government has passed regulations that address issues with short-term rental businesses such as Airbnb and HomeAway. The new laws have introduced a range of regulations including the introduction of a mandatory code of conduct for service providers and a limit on renting premises for short term stays in Greater Sydney to a maximum of 180 days per year (with exemptions from these limits when the host is on site).

The Fair Trading Amendment (Short-Term Rental Accommodation) Act 2018 was introduced to combat complaints of unruly tourists in apartment blocks and popular Airbnb neighbourhoods, and have been embraced by Airbnb and other home-sharing services. The Code of Conduct includes a “two strikes and you’re out” policy to ensure industry compliance with the new regulations. The government has also indicated that they will be reviewing the regulations after 12 months to ensure they are successful.

A new ban made in the Building Products (Safety) Act 2017 has come into force, which prohibits the use of aluminium composite panels (ACPs) with a core of more than 30% polyethylene in certain building classes, whether they are used in external cladding, external walls, insulation or rendering. Notably, the ban applies retrospectively to buildings constructed before the ban came into force.

Owners of existing buildings may be issued a notice that requires them to either eliminate or minimise a safety risk caused by the cladding. Builders, manufacturers and suppliers may be liable under s15 of the Act if they contravene the ban, and face penalties of up to $1.1 million for corporations or $220,000 for individuals.