Construction Law Review

Construction Law Review – March

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

Cobar Shire Council v Castlereagh Construction Group Pty Ltd [2017] NSWSC 86
Supreme Court of New South Wales
Stevenson J
Security of payments – funds in Court – costs – plaintiff contracted with first defendant for construction of fire station – plaintiff sought to quash adjudicator’s determination under s22 Building and Construction Industry Security of Payment Act 1999 (NSW) – Bergin CJ in Eq ordered first defendant be restrained from enforcing judgment on condition of plaintiff’s payment of amount to first defendant and payment of amount into Court – plaintiff sought to discontinue proceedings – proceedings dismissed – issues concerned what should happen to funds in Court and whether there should be special costs order due to first defendant’s service of Calderbank on plaintiff – held: Court ordered that funds in Court be paid out to plaintiff – it was not unreasonable for plaintiff not to accept first defendant’s offer – plaintiff to pay first defendant’s costs on ordinary basis.

CA & CA Ballan Pty Ltd v Oliver Hume (Australia) Pty Ltd [2017] VSCA 11
Court of Appeal of Victoria
Redlich, Tate and Ferguson JJA
Equitable remedies – contract – respondent and related company were real estate agents – appellant and two other companies were property developers – agents entered sales authorities with each of developers – agents alleged they were owed more commission – developers contended agents not entitled to commission because sales authorities did not comply with s49A(1) Estate Agents Act 1980 (Vic) – developers claimed sales authorities did not include approved form of rebate statement and that some did not include dollar amount for commission – agents amended pleadings to seek relief by rectification of sales authorities – developers successfully sought strike out of rectification pleading – agents given right to replead – developers appealed against permission to replead – parties obtained orders that two questions be reserved for Court’s consideration as to whether paragraphs of statements of claim should be struck out with no leave to replead – reserved questions answered in the negative – appeal dismissed.
CA & CA Ballan

Ellis’s Town House Pty Ltd v Botan Pty Ltd [2017] NSWCA 20
Court of Appeal of New South Wales
Gleeson, Leeming & Simpson JJA
Leases and tenancies – damages – respondent lessee sued applicant lessor for breach of covenants as lessor to paint premises and maintain them – applicant carried out some painting and repair work after proceedings commenced – at time of hearing, respondent had not incurred expenditure – respondent sought damages for breach of painting covenant and repair covenant – there was dispute concerning assessment of damages – amount in issue less than threshold of $100,000 – applicant sought to appeal concerning issue whether lessee could recover damages on ‘cost of cure’ basis even though it had not yet incurred costs – held: no error in approach to award of damages – proposed appeal did not raise issue of principle – decision below did not involve injustice – ‘ruling principle’ governing damages meant respondent entitled to amount to put it in position it would have been in if lessor performed the covenants – the fact that respondent had not incurred this expense no answer to its claim – leave to appeal refused.

Woolcorp Pty Ltd v Rodger Constructions Pty Ltd [2017] VSCA 21
Court of Appeal of Victoria
Santamaria & Kyrou JJA; Elliot AJA
Contract – restitution – parties were property developers with interests in adjacent pieces of land under Council’s planning control – respondent constructed road as part of a subdivision on land in which it had interest – road benefited applicant – respondent sued applicant claiming they agreed it would contribute to construction’s cost or that applicant was obliged to contribute by restitution – trial judge found binding contract existed and awarded amount to respondent – judge also found respondent would have been entitled to same amount by its restitutionary claim if no contract – held: respondent did not have valid claim on basis either of contract or restitution – appeal allowed.