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Chamber November • 2010 AUSTRALIAN LEBANESE CHAMBER OF COMMERCE NEWS ႑ concrete solutions ႑ quarry products ႑ building products Hanson is the largest producer of aggregates — crushed rock, sand and gravel — and one of the largest producers of premixed concrete in the world. In Australia, our product range also includes preformed concrete products and asphalt. We have sites all over Australia which means we have the capability to deliver products for all your project and infrastructure needs. With global strength, national coverage and local presence, whatever your challenge, we’ll make it happen. For more information, call us on 132 662 or check out our website www.hanson.biz/au. Chamber News 3 Chamber AUSTRALIAN LEBANESE November • 2010 In This Edition CHAMBER OF COMMERCE NEWS Owners Corporations & Building Controls p4 Lebanon’s Economy Shows Strength p7 Carlos Slim Helu - Guest of ALCC p10 A Word from the President Annual Business Luncheon p12 Dear Members and Friends, Future Growth of Sydney p14 As we come to the end of 2010 we can reflect on TMA Cargo is Back in Lebanon p17 what has been a very significant year for the Australian-Lebanese trading relationship. There is a greater presence and interest in Middle Eastern financial institutions participation in Australia, making cross investment with many Lebanese community members even more attractive. CHAMBER News is published by The Australian Lebanese Chamber Australia has also continued to focus on its relationship with many of Commerce Pty. Ltd. All Middle Eastern trading partners such that the rise of airlines such correspondence to be addressed to: as Etihad and Emirates are now a prominent and important part The Australian Lebanese Chamber of Commerce Pty. Ltd of Australian life. G.P.O. Box 3484 Sydney NSW 2001 For the Lebanese community here in Australia, all of this is good www.alcc.com.au news for our commercial prospects. We have knowledge of the The opinions expressed in this publication region which is becoming more valued and for Lebanese people are not the official opinions of the wishing to invest in Australia, we are the first port of call. Australian Lebanese Chamber of Commerce unless expressly stated. The Chamber does not accept any This strengthening of Australian / Middle East ties also adds responsibility for the accuracy or momentum to the recovering Australian economy. Happily, most otherwise of the information contained in this publication. Readers should rely businesses can report a less acutely difficult year than 2009. on their own enquiries when making any decisions or taking any action With all of this in mind, I wish everyone a successful end to a year affecting their interests. of recovery. I look forward to seeing all our members go from FOR ADVERTISING CONTACT Nadia Obeid - 0416 014 920 strength to strength in the coming year. Michael Murr - 0411 338 333 Email: [email protected] On behalf of the ALCC board of directors, I wish to thank all our sponsors, and supporters for their loyalty and continuous The Chamber is Published by the Australian Lebanese Chamber of participation in the Chamber’s activities. Commerce (ALCC) Contributions for the next issue can be E-Mailed to [email protected] Joe Khattar President The Chamber is designed & printed by The Australian Lebanese Chamber of Commerce Ltd. R.M. Gregory Printers 227-231 Georges River Road Croydon Park NSW 2133 (02) 9744 8979 www.rmgregory.com.au AUSTRALIAN LEBANESE CHAMBER OF COMMERCE Board Members Name Title Name Title Joe Khattar President Joe Rizk Director Michael Rizk Head of Trade Relations Michael Symond Director Australia - Lebanon Danny Arraj Director Michael Murr Treasurer Mark Algie Director Nadia Obeid Secretary Elie Touma Director Dr Anthony Hasham 1st Vice President Peter Semaan Director Salim Nicolas 2nd Vice President Chamber News 4 Owners Corporations and Builders Battle for Control: The Proportionate Liability Defence and the Home Building Act 1989 (NSW) Introduction The plaintiff brought an application before the Supreme In the recent decision Owners Corporation Strata Plan Court of New South Wales, seeking to strike out the parts 72357 v Dasco Constructions Pty Ltd (Dasco) [2010] of Dasco’s defence that relied on Part 4 of the CLA. NSW 819, Blackstone Waterhouse, on behalf of the defendant, successfully argued that the proportionate Einstein J’s decision rejecting the plaintiff’s argument is an liability defence can be used by builders defending “interlocutory” decision, or one that is not a final defects actions under the Home Building Act 1989 determination of the dispute between the parties. (NSW) (HBA). Therefore the question as to whether there have been fire safety defects is still to be decided in a trial probably next The major impact of this decision is that Owners year. Corporations cannot target a single party for any recovery action for the costs of defects. Einstein J’s Decision: An Analysis The plaintiff submitted that section 39 (c) of the CLA This means that builders have protected their right to provides that Part 4 does not affect the operation of any plead proportionate liability where unsatisfactory work other Act "to the extent that it imposes several liability on was carried out through no fault of their own. any person in respect of what would otherwise be an apportionable claim". This is because, under Part 4 of the Civil Liability Act 2002 (NSW) (CLA), a defendant in a case for most types Therefore, according to the plaintiff’s argument, given of negligence or breach of contract can join other parties that Part 2C of the HBA is entitled “statutory warranties”, that it considers to be jointly responsible for the alleged the warranties should be accorded the status of statutory damage done to the plaintiff. causes of action and thus excluded by operation of section 39(c). The question before the Court in the Dasco decision was whether this defence applied to a claim based on the In the alternative, the plaintiff argued that there are good HBA warranties. The plaintiff ran a very technical policy reasons for excluding the HBA from the operation argument, saying that the HBA warranties had a special of Part 4 of the CLA including the fact that the HBA status because they are created by legislation. Therefore, warranties provide an important remedy against builders the plaintiff argued, the HBA warranties are not subject to who engage in negligent building practices. the CLA defences. The plaintiff likened the HBA warranties with consumer Einstein J rejected this argument in a comprehensive protection clauses in the Fair Trading Act: ie essential written decision. The consequences of this will be far clauses that are put in place by the government to reaching for both builders and owners corporations protect the consumer, or in this case, a new home or throughout NSW and the rest of Australia where similar apartment purchaser. legislative regimes are in place. The defendant argued that the Part 2C HBA warranties The Facts are merely contractual terms, even if mandatory for every The matter involves a dispute as to alleged building home building contract. Further, they do not have the defects in the Whitecrest Apartments, Concord. The social importance that is alleged by the plaintiff. defects related, insofar as proportionate liability was concerned, to fire safety construction and design. The The defendant also argued that if the NSW Parliament concurrent wrongdoers alleged are the certifiers and the had wanted to specifically exclude the HBA from the engineer. operation of Part 4 of the CLA, it would have done so, as it has with other statutes. The builder and first defendant, Dasco Constructions Pty Ltd, has sought to rely on the proportionate liability The Decision defence as an arm of its defence. The plaintiff objected Einstein J agreed with the defendant. Firstly, in His to the use of this defence, arguing that the HBA Honour’s view, “section 39(c) of the CLA does not assist guarantees were not intended to be included in the the plaintiff as the HBA does not impose liabilities. It provisions of the CLA. implies warranties in certain contracts and gives certain non-contracting parties the benefit of those warranties.” In their view, the proper treatment of the HBA warranties (paragraph 21) is that of “statutory warranties”, or special warranties in place generally for the protection of important public Secondly, there is no special social importance of the rights. The defendant disagreed, saying that the HBA HBA warranties. warranties are essentially compulsory terms of any home building contract in New South Wales. The defendant What does this mean for you? argued that the HBA warranties had no special “statutory For builders this decision provides useful confirmation warranty” status. that the CLA proportionate liability defence can be relied Chamber News 5 upon in complex defects claims. Builders will continue to Winds of legislative change be able to include parties that have produced defective Given the important ramifications of the decision for work through no fault of the builder. Owners Corporations, one can speculate whether they will lobby the legislature to act with speed to “plug” this For Owners Corporations the effects of the decision will perceived legislative gap? The legislature has certainly be that actions to recover the costs of rectifying defects proven itself to be able to act with alacrity in the past will be subject to the proportionate liability defence and a where perceived “gaps” in this area have arisen. careful evaluation of the wrongdoers will be required. Alternatively will the builders be able to retain the It is also important to note that it is difficult for Owners defences currently available to them at law? Builders Corporations to run cases against concurrent certainly would be well advised to fight to keep Einstein wrongdoers because the CLA requires that they argue J’s decision as it stands as it will certainly decrease the their own case against the concurrent wrongdoer.

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