01 Dec Construction Law Review
Construction Law Review – November
Please refer below to our Construction Law Review, selected from AR Conolly’s Daily Bulletins covering Insurance, Banking, Construction & Government.
Rolleston v Insurance Australia Ltd [2016] NSWSC 1561
Supreme Court of New South Wales
McDougall J
Insurance – evidence – plaintiff owned property on which residence was being constructed – property insured by defendant against loss or damages by fire – property damaged by fire – plaintiff claimed on policy – defendant refused to pay on basis plaintiff or someone else at plaintiff’s ‘urging or with his connivance’ started fire, that claim was fraudulent under s56 Insurance Contracts Act 1984 (Cth), that plaintiff in breach of implied contractual obligations was not truthful and did not act with upmost good faith – admissibility of expert evidence – ss79 &135 Evidence Act 1995 (NSW) – held: expert’s report excluded on basis it did not ‘pass through the s79 gateway’ – Court would have excluded report in any event in exercise of discretion under s135 on basis of unfairness to defendant – plaintiff did not give answers which were ‘knowingly false, or ‘otherwise than frank or truthful’ – defendant failed to discharge onus to show plaintiff responsible for fire – verdict for plaintiff in sum of $991,946
Rolleston
Supreme Court of New South Wales
McDougall J
Insurance – evidence – plaintiff owned property on which residence was being constructed – property insured by defendant against loss or damages by fire – property damaged by fire – plaintiff claimed on policy – defendant refused to pay on basis plaintiff or someone else at plaintiff’s ‘urging or with his connivance’ started fire, that claim was fraudulent under s56 Insurance Contracts Act 1984 (Cth), that plaintiff in breach of implied contractual obligations was not truthful and did not act with upmost good faith – admissibility of expert evidence – ss79 &135 Evidence Act 1995 (NSW) – held: expert’s report excluded on basis it did not ‘pass through the s79 gateway’ – Court would have excluded report in any event in exercise of discretion under s135 on basis of unfairness to defendant – plaintiff did not give answers which were ‘knowingly false, or ‘otherwise than frank or truthful’ – defendant failed to discharge onus to show plaintiff responsible for fire – verdict for plaintiff in sum of $991,946
Rolleston
Bennett v Strauss [2016] NSWCA 324
Court of Appeal of New South Wales
McColl JA; Sackville & Barrett
Contract – sale and purchase of interest in land – first respondent was registered proprietor as tenant in common of interest in land – appellant contended he entered contract to purchase the interest and that second respondent, who was first respondent’s daughter, had contracted with him as first respondent’s agent – if second respondent did not have authority when she made contract, appellant alternatively contended first respondent ratified agreement – primary judge found second respondent had not acted with first respondent’s authority and there was no ratification of agreement – appellant challenged decision on ratification – Contracts Review Act 1980 (NSW) – s54A Conveyancing Act 1919 (NSW) – held: no error by primary judge established – appeal dismissed.
Bennett
McColl JA; Sackville & Barrett
Contract – sale and purchase of interest in land – first respondent was registered proprietor as tenant in common of interest in land – appellant contended he entered contract to purchase the interest and that second respondent, who was first respondent’s daughter, had contracted with him as first respondent’s agent – if second respondent did not have authority when she made contract, appellant alternatively contended first respondent ratified agreement – primary judge found second respondent had not acted with first respondent’s authority and there was no ratification of agreement – appellant challenged decision on ratification – Contracts Review Act 1980 (NSW) – s54A Conveyancing Act 1919 (NSW) – held: no error by primary judge established – appeal dismissed.
Bennett
Adnow Pty Ltd v Greenwells Wollert Pty Ltd [2016] VSCA 282
Court of Appeal of Victoria
Tate, Ferguson & Kaye JJA
Contract – applicant by deed granted respondent option to purchase property it owned – option’s term extended by deeds between parties – respondent gave notice it might exercise option – valuer appointed under deed to determine property’s value – valuer assessed current market value – trial judge dismissed applicant’s application for declaration that valuer failed to comply with option deed’s provisions and order valuation be set aside – whether option deed required valuer to consider and apply Precinct Structure Plan – whether trial judge erroneously failed to find valuer did not have regard to Valuation Guidelines, and failed to find valuer did not undertake ‘valuation’ under option deed – held: grounds of appeal failed – appeal dismissed.
Adnow Pty Ltd
Court of Appeal of Victoria
Tate, Ferguson & Kaye JJA
Contract – applicant by deed granted respondent option to purchase property it owned – option’s term extended by deeds between parties – respondent gave notice it might exercise option – valuer appointed under deed to determine property’s value – valuer assessed current market value – trial judge dismissed applicant’s application for declaration that valuer failed to comply with option deed’s provisions and order valuation be set aside – whether option deed required valuer to consider and apply Precinct Structure Plan – whether trial judge erroneously failed to find valuer did not have regard to Valuation Guidelines, and failed to find valuer did not undertake ‘valuation’ under option deed – held: grounds of appeal failed – appeal dismissed.
Adnow Pty Ltd
Annie Street JV Pty Ltd v MCC Pty Ltd & Ors [2016] QSC 268
Supreme Court of Queensland
Flanagan J
Building and construction – security of payments – applicant sought relief concerning second respondent’s adjudication decision pursuant to s26(1) Building and Construction Industry Payments Act 2004 (Qld) that applicant pay amount to first respondent – applicant sought declaration decision was void and injunction restraining Adjudication Registrar from issuing an adjudication certificate – ss17, 18, 24 & 26(2) Building and Construction Industry Payments Act 2004 (Qld) – Schedule 1, Part 2, s18(2)(b) Judicial Review Act 1991 (Qld) – held: no error in decision applicant not entitled to set-off of amount for liquidated damages – contention that adjudicator erred by failure to consider contractual provisions relevant to time limitations failed – application dismissed.
Annie Street
Supreme Court of Queensland
Flanagan J
Building and construction – security of payments – applicant sought relief concerning second respondent’s adjudication decision pursuant to s26(1) Building and Construction Industry Payments Act 2004 (Qld) that applicant pay amount to first respondent – applicant sought declaration decision was void and injunction restraining Adjudication Registrar from issuing an adjudication certificate – ss17, 18, 24 & 26(2) Building and Construction Industry Payments Act 2004 (Qld) – Schedule 1, Part 2, s18(2)(b) Judicial Review Act 1991 (Qld) – held: no error in decision applicant not entitled to set-off of amount for liquidated damages – contention that adjudicator erred by failure to consider contractual provisions relevant to time limitations failed – application dismissed.
Annie Street
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