Building Law
Table of Contents
Question 1
A. The main feature of PAYG is that it will prevent the accumulation of the large amount of tax at the completion of the financial year which is known as the withholding of PAYG. In this case, as the employer has not paid the PAYG to the Australian Taxation Office this can mean that the employees will have to pay a taxation bill when the employees will lodge their income tax return at the end of the month (ATO, 2022). According to the ATO, the taxation obligation has been made by the employer of the construction company by providing quarterly payments at the end of every year. Employers can adjust the amount of tax withdrawn from employees’ paychecks under the PAYG tax system, withholding some of it to cover potential end-of-year tax liabilities. Spreading out the payments throughout the year rather than paying a huge tax bill all at once makes it simpler to fulfill tax responsibilities. A system of withholding income tax from an employee’s or a contractor’s salary or compensation is known as PAYG withholding. Therefore, the tax is paid directly to the ATO on behalf of the employee or contractor by the payer of the income rather than the beneficiary of the income. These payments are made in accordance with your anticipated year income level and will be included when determining your tax at the end of the fiscal year. The employer is entitled to withhold a certain section of the payment that will be used in the payment of the taxes. This means that the company employer has not withheld the money that is obligatory. Any business structure can apply the payment withholding process. The obligation of the employer is to submit the withheld amount to the ATO so that the employees will not have to pay an excess amount of tax at the end of the financial year. In the absence of the leaders following this process, the employees can lodge a complaint to the ATO (NSW, 2017).The employer who has not paid the amount is subjected to penalty. The employer will have to pay the fine of the same amount that he has not submitted. The failure to lodge will also result in penalty of the employer. Six months of imprisonment can be given to the employer for the PAYG withholding.
B. The workers in NSW are safeguarded by the Workers Compensation and Rehabilitation Regulation Act 2014. This Act helps in the meeting of the requirements of the scheme that is present for the workers that will give a detailed explanation about their rights when they are injured. The legislation outlines the amount of money that should be provided by the employers if the worker is injured. The schedule 3 of the Act talks about the additional compensation that the worker is entitled to when they sustain the injury that is the result of DPI of more than 30%. The maximum amount of large amount of money that is payable to the worker is 216.15 times QOTE (Ohsrep, 2016). The section 193A of the compensation Act talks about the payment that is under the graduated scale and its application to the multiple injuries. The payment that will be made by the employers will be to cover the wages while the employee is unfit to work. The medical expenses and the cost of rehabilitation should also be paid by the employer. The insurance policy that is present in NSW should be followed by all the employers and every company should have the insurance policy that covers the cost of injuries for the workers. Even if the company does not have compensation policy, there are many rights that can be exercised by the employees (SIRA, 2022). The employees are entitled to refuse to come to work unless they are completely healed. The first visitation to the doctor is important because it will help them in claiming the compensation. According to the WorkCover Certificate the employees can take time off. The payment of bills like visit of the doctor, X-Ray bills and physiotherapy bills can be pad under the insurance. The worker who is injured has the right to refuse the service of the company doctor and see their personal doctors (Fairwork , 2021). Rehabilitation services can be taken up by the worker as long as needed and falls under the compensation policy.
C. In case a worker dies in an accident within the company, the family of the deceased person is entitled to some compensation. The family members of the dead person are required to notify the SafeWork association present in NSW (Au, 2020). After the notification has been provided, the case management specialist will be appointed who will work the case and lodge an investigation that will help in the identification of the cause of the death and how much reparation the family is entitled to. This will aid in the process of claiming the compensation. The management specialist will lay out the details of the compensation to the family members. The pay ability of the compensation depends upon the fact that the death of worker is related to work. This makes the family members eligible for the compensation. As per the Workers Compensation and Rehabilitation Regulation Act 2003, the family member of the dead will be given expenses that will cover the cost of funeral arrangements and the accessories associated with it (Icare, 2021). The lump sum payment as well as the weekly payment should be made by the compensation policy. Payment of up to $15000 for the funeral will be paid by the company. The family members are also entitled to the quarterly payments of the dead employee. Another most important factor that should be considered is the identification of the cause of the death, relationship of the claimer with the dead and the number of people dependent upon the deceased person.
Question 2
1. The Andrews should not pay for the gazebos to Gold Design PTY LTD. The construction of the gazebos was not specified in the contract clauses. Therefore, the payment for the gazebos is not required. The invoice that has been submitted after completion is much more than the original estimation (ACCC, 2022). The Andrews should not pay the extra amount of money as it was not motioned in the contract. The payment of the $3000 is due to the construction company. The extra amount of money should not be paid. As per the Contract Law AS 4902-2000 – General Conditions of Contract for Design and Construct, the specifications for the gazebos were not mentioned in the contract (Talese, 2019). The completion of the annexure part A of the contract should include the appropriate cost and requirements. The Formal Instrument of Agreement present within the contract should be revised. The absence of the completion of the agreement means that the Andrews should pay the amount that has been agreed by them when they agreed on the building of the gazebos. The absence of all the important aspect of the criteria suggests that payment will not be made by the Andrews. As the timing that was promised by the constructor was exceeded and the clause 41.2 of AS 4902 states that the delay in timing of delivery should be taken into consideration before making any payment (Witt, 2022). Delay that is non-qualifying will also be taken up in this case.
2. Liquidated damage and payment forms an important part of the construction contract. The liquidated damages can be defined as the fixed and the pre arranged prices that have to be paid by either of the two parties to the other in case there has been a loss due to the breach in contract. As per clause 34.7 of AS 4000-1997 in the National Construction Code, the damages that have been made by one of the party that has resulted in the breach of the contract should be paid (Geddes, 2022). The consideration of the payment should be done by the party that is applicable to the payment. In this case, Andrews are entitled to the payment of the damages by the constructor. As the contractor had failed to deliver the buildings before the estimated time, the liquidation charges should be paid by him. The expression and the mentioning of the liquidated rates have been seen in the contract. The calculation of the amount of liquidation charge should be done at the daily rate. The amount that the constructor is entitled to pay to the Andrews is $110 per week (Glynn, 2021). The amount can be seen as valid as it has been mentioned in the contract. The contract is signed by the parties which gives them the acknowledgement that on of the party has to pay for the damages that will be incurred at the time of the construction. The Gold construction company was aware of the amount that has to be paid in case there is a delay in the handover of the buildings.
3. Homeowners are entitled to some statutory warranties under the Home Building Act of 1989. It will also comprise building the house with the necessary care and expertise and in accordance with the plans outlined in the contract. Constructions ought to adhere to businesses with the necessary laws. In accordance with the Home Building Act of 1989, homeowners are entitled to a number of statutory warranties. In New South Wales, the residential building sector as well as some specialized work is governed by the Home Building Act 1989. The Act outlines the fundamental statutory rights that apply to contractors, builders, and homeowners. It also entails constructing the home with the required care and proficiency and in compliance with the plans specified in the contract. Constructions must abide by companies that are governed by the relevant legislation according to the Home and Building Act 1989 in Australia (GTlaws, 2020). The policy offers coverage for a period of 12 months following the failure to commence or cessation of the work in the event that loss or damages result from non-completion of the work. The structural issues with the Andrews building have shown that the Australian Building Code’s performance standards are not being followed. In this case, the faults were latent, which implies that they persisted both throughout and after the construction was complete. In this instance, the component’s failure to function as the internet is an example of a flaw of this kind (Kennedy, 2016). So, it is clear that the contractor is responsible, and because of the irresponsibility of the contractor this has happened. The work must be completed by the contractor in accordance with the specifications and the missing blueprints from Andrews’ house. As a result, the irregular bedroom and garage dimensions will give rise to a claim, and the construction business will be responsible for paying the fees and the contraction business has to pay the bill for this.
4. The Andrews had ordered the construction company to build two properties. After the completion of the building it came to be known that the constructor had not gained any permission from the Council for the creation of the two building units. In the contract, the approval for the building was mentioned. The payment for the whole process including the approval was made according to that (ATO, 2022). The breach in the contract is clear and the Andrews can ask for money from the construction company. The constructor had not fulfilled his duty which makes the buildings have been constructed against the law. This means that the Andrews are entitled to compensation. Non approval of the plans by the Council means that the building will be termed as illegal. This is due to the fault of the constructor, which means that he will have to pay the damages to the party that has been suffering due to his negligence. Moreover, the selling of the other building will not be done by the Andrews which are a massive loss for them. The exemption of the main residence will not be seen in the case of the Andrews. The demolition of the buildings is a higher chance as there is no approval from the council (Baker, 2021). The payment of the capital gains tax for both the buildings will have to be borne by the Andrews due to the negligence of the constructor according to the Civil Liability Act 2002. The damages that were incurred can be seen as the breach of the duty on the part of the constructor.
Question 3
a. According to the Encroachment of Buildings Act 1922 in NSW, the governing of the situation where the construction of the building has been done over the boundary and the exceeding of the permitted are governed by this body. The character that is permanent for the building that is substantial will be applicable in this case. The including of the overhanging and the walls will also be taken into consideration. Under this Act several provisions are made that will help in the understanding the limitations of the boundaries for a building (NSW, 2019). The adjustments that can be made to the buildings while constructing are also taken up under this act. The determination of the boundaries is present under this act that will help in the identification of the excess that the builder has built. The violation of the rights of the adjacent land owners can be seen in the case of Mr. Smith. Therefore, Mr. Smith is obligated to pay compensation to the owner of the other building. He should also remove the extension as soon as possible. He can also grant an interest to the neighbor unless the encroachment is removed. According to Part 14A of the Real Property Act, the correct determination of the boundaries should be taken up by the builder. When the application has been made under section 14 the proprietor that is registered the estate by the means of the simple pay in claiming of the land. This can be supported by the reason the possession (Baker, 2021). The requirement of the application by the registrar general along with the plan of the land will be taken up for the correct estimation of the encroachment. The submission made by the Registrar general under the subsection 1 of section 114 applies to the situation faced by Mi. Smith. The immovable and the movable property should be considered in this case.
b. The Register-General can be contacted to request the borders to be determined in cases where there is a boundary dispute, such as the one with Smith Construction PTY Ltd. Part 14A of the Real Property Act of 1900 allows for this to be done. The Real Property Act of 1900 is the best example of how private property and land ownership are protected by law. An essential component of capitalism’s ideology is private property. The regulation of land ownership and economic theory has been at the forefront of legal frameworks in capitalist societies. The Act is intended to clarify ownership of real estate and ease the transfer of those rights (NSW, 2019). The Act mandates that title information be entered on a land register and designate the Register-General as responsible for the act’s administration. The Land and Environment Court may be able to assist in determining how to make and record the proper boundaries in situations where this legislation is not relevant according to the Section 9 of this law. The owner of the construction company is required to take action in this situation to get rid of the encroachment. When compensation is paid, the owner of the property next to the subject property is also compensated. The court will be able to reduce the fines that might be imposed on the incursion with the help of this convincing justification (Legalanswer, 2020). The court will determine where the boundaries should be based on how much land has been encroached upon. Thereafter, the fees associated with the extension will be applied after the limitation of the land that has been encroached or extended has been determined.
Question 4
The most common and the profitable form of business structure is the partnership structure. Therefore, while choosing a business structure for the construction company, the partnership approach is recommended. This type of business structure is made up of 2 or more individuals. The income and the investment are shared among the two partners as well as the profit and the loss. The governance of the partnership structure under the Partnership Act of 1891 can be done. With the help of the legislation, the obligations and the rules of the partners are noted. This will include the joint liability of the partners on the debts in the businesses (Employment, 2022). The most common advantage of the business structure is it is less expensive for setting up of the company as the prices and the expenditure is shared among the two partners. The division of the profit and the loss from the business can be done at 50% or according to the investment made by each individual. The losses incurred will also be shared by the partners. The taxation process will be different and there is no payment of taxes. However, the lodging of the tax under partnership firm should be done to declare the income in the business structure, deductable expenses and to will also help in the incurring of the net loss and profit among the partners. Each partner is entitled to pay their own taxes according to income from respective shares. As more capital can be available for the setting up of the business, the investments in the different equipments and requirements can be done (Lohrey, 2019). The partners can be chosen from the employees who have high caliber. The greater capacity for borrowing can be seen in the structure. The splitting of the income will enable the payment of the respective taxes. The limitation of the regulation that is external is not present in the business structure. The ease of changing the structure is much facilitated in this process and the legal structure can also be changed accordingly. The registration of the business structure with the Securities and Exchange Commission [SEC] can help in the agreement of the terms and conditions that will be applied and agreed by the partners.
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