Construction Law Review

Construction Law Review

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

Paskins v Hail Creek Coal Pty Ltd & Anor [2017] QSC 190
Supreme Court of Queensland
McMeekin J
Negligence – employer’s duty of care – vicarious liability – non-delegable duty of care – labour hire contract – plaintiff claimed damages for injuries suffered in course of employment with first defendant while operating haul truck at mine which first defendant operated – plaintiff alleged second defendant’s employee caused his injuries – labour of second defendant’s employee had been hired to first defendant under contract between second defendant and third party – Civil Proceedings Act 2011 (Qld) – Coal Mining Safety and Health Act 1999 (Qld) – Superannuation Guarantee (Administration) Act 1992 (Cth) – Workers’ Compensation and Rehabilitation Act 2003 (Qld) – held: incident occurred due to negligence of second defendant’s employee – both first and second defendant liable for negligence of second defendant’s employee – no contributory negligence – second respondent was required under its contract with third party to indemnify first defendant for its liability in relation to plaintiff – judgment for plaintiff against first defendant in sum of $709,408.26 – judgment for plaintiff against second defendant in sum of $966,991.38.

MT Hojgaard A/S v E.ON Climate & Renewables UK Robin Rigg East Ltd & Anor [2017] UKSC 59
United Kingdom Supreme Court
Lord Neuberger, Lord Mance, Lord Clarke, Lord Sumption, Lord Hodge
Contract – ‘design and build’ contract – proceedings arising from failure of foundation structures of two off shore wind farms – parties disputed who bore remedial costs – appellants were two companies in group (E.ON) – MTH were successful bidders on appellants’ tender documents, which included “Technical Requirements” stating the requirements which were to be taken into account by MTH – Technical Requirements required that foundations be in accordance with document (J101) – MTH prepared tender in accordance with Technical Requirements and J101 – J101 affected by error which meant foundation structures’ strength overestimated – parties entered contract – contract stated MTH should carry out work “fit for purpose” including adherence to Technical Requirements – whether paragraphs of Technical Requirements infringed – construction of Technical Requirements – “The design of the foundations shall ensure a lifetime of twenty years in every aspect without planned replacement” – whether inconsistency between paragraphs and other provisions such as adherence to J101 – held: MTH breached Technical Requirements – foundations did not have a twenty year life time – foundations’ design was not fit to ensure twenty year life time – no different construction required by reference to J101 – MTH liable – appeal allowed.
MT Hojgaard

Buildum Construction Pty Ltd v Pile & Bucket Pty Ltd [2017] NSWSC 1260
Supreme Court of New South Wales
Parker J
Contract – settlement agreement – security of payments – first defendant made claim under Building and Construction Industry Security of Payment Act 1999 (NSW) for progress payment under subcontract with plaintiff – first defendant obtained adjudication determination, registered adjudication certificate and issued garnishee notices – plaintiff challenged adjudication determination – parties exchanged drafts of unsigned deed of settlement – plaintiff contended ‘binding and enforceable settlement agreement was reached’ – whether execution of deed was ‘essential element’ of agreement –  s73 Civil Procedure Act 2005 (NSW) – held: parties reached a binding and enforceable agreement – plaintiff entitled to specific performance of agreement.
View Decision

R Developments Pty Ltd v Forth [2017] ACTCA 38
Court of Appeal of the Australian Capital Territory
Refshauge, Burns & Collier JJ
Building contract – standard form building contract – agreement for construction of residence by appellant (builder) for respondents (owners) – primary judge found builder was not entitled to terminate contract for owners’ failure to comply with requirement to supply evidence of capacity to pay – primary judge also found owners failed to prove entitlement to anything more than nominal damages for builder’s wrongful repudiation – builder appealed – construction of contract – held: no error in primary judge’s conclusion concerning effect and nature of clauses of contract – grounds of appeal unsubstantiated – appeal dismissed.
R Developments