Construction Law Review

Construction Law Review – April

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

Lim v Comcare [2017] FCAFC 64
Full Court of the Federal Court of Australia
Kenny, Tracey & Bromberg JJ
Administrative law – worker’s compensation – appellant worked for Australian Communications and Media Authority – appellant claimed compensation pursuant to Safety, Rehabilitation and Compensation Act 1988 (Cth) – Administrative Appeals Tribunal found applicant suffered psychological condition arising from employment as result of performance appraisal which was ‘reasonable administrative action taken in a reasonable manner’ and thus appellant’s condition excluded from definition of ‘injury’ under Act – primary judge dismissed appeal, finding Tribunal did not fail to properly apply s5A in making its findings of fact – whether primary judge erroneously failed to find Tribunal misconstrued ‘suffered as a result of’ in exclusion in definition of injury in s5A(1) – effect of decision in Comcare v Martin [2016] HCA 43 – held: Tribunal erred with regard to Comcare v Martin by failing to address entirety of question to which exclusion in s5A(1) gave rise when read with s5B – Tribunal erred in ‘the application of the causal connection’ in the exclusion – appeal allowed.

AAP Industries Pty Ltd v Rehau Pte Ltd [2017] NSWSC 390
Supreme Court of New South Wales
Davies J
Contract – parties executed contract for supply by plaintiff of plumbing articles to defendant (supply contract) – also said to be seven informal contracts and documents between parties for other plumbing articles (‘further contracts’) – plaintiff contended defendant breached contracts when it ceased ordering plumbing articles from plaintiff – principal issue was whether contracts had implied term of exclusivity – construction of contracts – held: defendant obliged by express terms of supply contract to purchase the plumbing articles only from plaintiff – Court found it ‘may not be necessary to imply a term of exclusivity’ but found term implied to extent authorities suggested it was implied by contract’s proper construction – plaintiff entitled to damages for breach of supply agreement.

United Petroleum Pty Ltd v Bonnie View Petroleum Pty Ltd (In Liquidation) & Ors [2017] VSC 185
Supreme Court of Victoria
Kennedy J
Contract – proceedings arising from sale of petrol station business by defendant company (BV) to plaintiff – BV leased sale property from defendant landlords – plaintiff contended BV breached Side Agreement by failing to remediate land and to take steps to assign lease – plaintiff claimed sum to remediate site and amount incurred in obtaining lease directly with landlords – amounts claimed against BV and defendant guarantor – construction of Side Agreement – held: plaintiff established alleged breaches of Side Agreement – plaintiff entitled to apply Retention Amount and proceeds of Bank Guarantee against its losses under Side Agreement – judgment for plaintiff – counterclaim dismissed.
United Petroleum

Masters Home Improvement Australia Pty Ltd v North East Solutions Pty Ltd [2017] VSCA 88
Court of Appeal of Victoria
Santamaria, Ferguson & Kaye JJA
Contract – respondent (NES) was corporate entity in ‘Maxi Foods Group’ (Maxi) – first applicant (Masters) was subsidiary of second applicant (Woolworths) – respondent agreed to purchase site to construct store to be leased to Masters – Masters’ obligations to be guaranteed by Woolworths – parties entered Agreement for Lease of site – NES sued Woolworths and Masters for breach of agreement – primary judge found Woolworths and Masters breached obligation to act reasonably and in good faith to attempt to resolve differences concerning cost of store’s construction and Masters’ contribution to costs – appellant appealed – held: Court made critical finding concerning costs of store’s construction and amount Masters was to contribute to the costs on basis of a spreadsheet provided by quantity surveyor – spreadsheet was work in progress and its figures not final – no sufficient basis for judge’s pivotal finding – no breach of contract by Masters or Woolworths – appeal allowed.
Masters Home Improvement