Construction Law Review

Construction Law Review – October

Please refer below to our Construction Law Review, selected from AR Conolly’s Daily Bulletins covering Insurance, Banking, Construction & Government.

Henley Arch Pty Ltd v Lucky Homes Pty Ltd [2016] FCA 1217
Federal Court of Australia
Beach J
Copyright – original artistic work – applicant claimed it owned copyright in original house design “Amalfi AM532” with “Avenue” façade (Amalfi Avenue floorplan) as an original artistic work – applicant claimed respondents infringed or authorised infringement of their copyright – applicant sought declaration, injunction, delivery up and damages – third and fourth defendants relied on innocent infringement defence under s115(3) Copyright Act 1968 (Cth) – first and second respondents denied infringement – first and second defendants cross-claimed against third and fourth defendants – third and fourth defendants cross-claimed against first and second defendants – held: applicants claims of copyright infringement succeeded against all respondents – third and fourth defendants’ cross-claim against first and second respondents for misleading or deceptive conduct under s18 Australian Consumer Law succeeded – orders.

Ainsworth v Albrecht [2016] HCA 40
High Court of Australia
French CJ; Bell, Keane, Nettle & Gordon JJ
Real property – community titles scheme – dispute concerned proposal to alter lot owners’ rights to scheme’s common property to allow one lot owner exclusive use of part of it – adjudicator appointed under Body Corporate and Community Management Act 1997 (Qld) concluded lot owners’ opposition unreasonable and made order deeming that motion supporting proposal was passed – Queensland Civil and Administrative Tribunal overturned decision but Court of Appeal of Queensland upheld it – held: adjudicator addressed wrong question – adjudicators ultimate conclusion ‘inevitably affected by an error of law’ which also infected Court of Appeal’s approach – in circumstances where proposal was ‘apt to create a reasonable apprehension that it would affect adversely the property rights of opponents of the proposal and the enjoyment of those rights’, lot owners’ opposition was not unreasonable – appeal allowed.

Bankstown Trotting Recreational Club Ltd v Chisholm [2016] NSWCA 274
Court of Appeal of New South Wales
Bathurst CJ, Beazley P & Sackville AJA
Real property – environment and planning – contract – primary judge found that in creating easement which benefitted land owned by appellant Club and burdened land in which Society was interested, fourth respondent Council had derogated from rights it granted to Society under deed (1985 Deed) – primary judge ordered Council and Club to remove easement – primary judge also found Club and Council engaged in misleading and deceptive conduct in breach of s52 Trade Practices Act 1974 (Cth) concerning preservation of Society’s rights to licence fee under another deed (1987 Deed) and assessed licence fee payable – whether terms of any development consent prevailed over or modified 1985 Deed’s effect – whether relief ‘excessive or unnecessary’ given extent of Society’s rights in respect of land under various deeds – whether erroneous assessment of annual licence fee – held: grounds of appeal failed – appeal dismissed.
Bankstown Trotting

QNI Resources Pty Ltd v Park [2016] QSC 222
Supreme Court of Queensland
Bond J
Corporations – winding up – equity – joint venture – two applicants were joint venturers in project – third applicant replaced company in liquidation (Queensland Nickel) as General Manager – applicants claimed return of joint venture property held by Queensland Nickel even though it had apparently incurred liabilities with no provision made for their discharge – whether Court should grant leave for applicants to proceed against Queensland Nickel – whether serious question to tried as to applicants’ entitlement to relief sought – held: Court not satisfied there were grounds to support applicants’ assertion that Queensland Nickel did not have any beneficial interest in joint venture property or right of indemnity in respect of incurred liabilities – applicants refused leave to proceed with claims against Queensland Nickel.