Construction Law Review

Construction Law Review – December

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

Museth v Windsor Country Golf Club Ltd [2016] NSWCA 327
Court of Appeal of New South Wales
Gleeson JA, Barrett AJA & McDougall J
Nuisance – appellant claimed water flowed from appellant Club’s land onto his land causing damage to his house’s structure – primary judge found nuisance proved – common ground nuisance had been abated – primary judge assessed damages at $25,000, finding that damage was cosmetic – common ground that appellant was required to give credit for receipt of $30,000 for settlement of claim against another party – primary judge entered judgment for respondent with costs – appellant appealed – held: primary judge erred in admitting expert evidence – no error in primary judge’s finding no compromise to structural integrity of house – damages not inappropriate – appeal dismissed.

CAA Technologies Pte Ltd v Newcon Builders Pte Ltd [2016] SGHC 246
High Court of the Republic of Singapore
Vinodh Coomaraswamy J
Building and construction – defendant was main contractor for building project which sub-contracted elements of project to plaintiff – plaintiff failed to deliver the elements and failed to meet revised schedule – plaintiff delivered some elements ‘out of sequence, incomplete and badly behind schedule’ – defendant terminated contract with plaintiff – plaintiff sued defendant for breach of contract – defendant counterclaimed for plaintiff’s breach of contract in ‘failing to deliver the structural elements as promised’ – held: defendant entitled to terminate contract as a result of plaintiff’s repudiatory breaches of express and implied terms of contract – plaintiff’s claim substantially failed – defendant’s counterclaim substantially allowed.
CAA Technologies

Cooper & Oxley Builders Pty Ltd v Steensma [2016] WASC 386
Supreme Court of Western Australia
Le Miere J
Judicial review – construction contract – applicant entered construction contract with company (AM Land) which made two claims for progress payments – applicant contended it was entitled to set off its entitlement to liquidated damages and damages for rectification against amount claimed by AM Land – first adjudicator determined that AM Land’s claims and applicant’s asserted set off gave rise to payment dispute under Construction Contracts Act 2004 (WA) and that he did not have jurisdiction to adjudicate more than one payment dispute – adjudicator adjudicated only dispute in respect of one of AM Land’s progress claims, determining applicant liable to AM Land – AM Land sought to have dispute concerning second progress claim adjudicated – second adjudicator found applicant could not assert its set off and was liable to AM Land – applicant sought to quash both determinations – ss6, 26, 27, 31 & 32 Construction Contracts Act 2004 (WA) – held: both first and second adjudicator erred in respect of their determinations – both determinations quashed.
Cooper & Oxley

Simic v New South Wales Land and Housing Corporation [2016] HCA 47
High Court of Australia
French CJ; Kiefel, Gageler, Nettle & Gordon JJ
Contract – performance bonds – second respondent executed two Undertakings on third respondent’s instruction in favour of non-existent named ‘Principal’ – first respondent corporation demanded payment under each Undertaking – second respondent did not pay because corporation not named ‘Principal’ – whether possible to construe Undertakings in corporation’s favour to effect corporation’s name in lieu of name which appeared in Undertakings – whether Undertakings should be rectified – common intention – common mistake – held: not possible to construe Undertakings in favour of corporation but Undertakings and finance applications underlying them should be rectified to refer to corporation – second respondent bound to pay demands – appellants, as guarantors of customer issuing Undertakings, bound to pay amount to second respondent – appeal allowed – cross-appeals allowed.