BuildLaw Issue 37 October 2019 | Page 5

The High Court heard the appeal and in August this year delivered its judgment. The fine on Steel & Tube Holdings was increased to $2.009 million.
Steel & Tube Holdings is “disappointed by the decision and continues to stand by its products”. The company’s view is that “the differences in testing would not have a material impact on the performance of the steel mesh”.
Judge Duffy classed the breach of trust as significant.
“It is unusual for a company of Steel & Tube’s size to fail so completely to have systems and procedures in place that would alert it to deviance, but that is what has happened here.”
The High Court Judgment, delivered by Judge Duffy, can be found here.
Appeal
The Commerce Commission now seeks leave to appeal to the Court of Appeal on the grounds that the Judge erred when sentencing the company by:
1. failing to properly attribute the knowledge of a Steel & Tube manager to the company;
2. applying an excessive totality discount to the penalty; and
3. failing to adequately take into account the size of Steel & Tube and the potential for it to gain from the conduct.
This differs from the grounds on which they appealed to the High Court only in the addition of the second ground.
Reforms to Security of Payments Act (NSW)
The Building and Construction Industry Security of Payment Regulation 2008 (NSW) was updated on the 21 October, following a period of public consultation.
To avoid breaching the amended Security of Payment Act 1999 (NSW) (the Act), it is important for parties in the construction industry to ensure they understand these recent changes. This will be particularly important for directors, as new liabilities have been introduced relating to supporting statements. The amendments also tighten payment time frames. Accordingly, parties will need to review internal processes to meet new time frames.
Following are the most important changes affecting parties in the industry:
1. Relating to section 8 of the original Act
a. A change to the conditions for progressing a payment claim means that a claim can now be made to a person who, under a construction contract, has undertaken to carry out construction work or to supply related goods and services. This new structure removes the requirement of a reference date to initiate payment claims.