Construction Law Review

Construction Law Review – November

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

Summs of Qld Pty Ltd v Boon [2015] QCA 174
Court of Appeal of Queensland
Fraser JA

Security of costs – negligence – respondent stabbed in hand with Leatherman knife by applicant’s employee during lunch break at construction site – respondent employed by company (Globe) which was contracted by another company (Downer) to provide workers at construction site controlled and monitored by Downer – applicant company subcontracted by Downer to remove and replace asphalt at construction site – respondent sued applicant company for breach of duty to take reasonable care not to expose him to a foreseeable risk of injury and/or claimed appellant vicariously liable for employee’s negligent acts – primary judge found it was not established applicant’s employee was negligent and was not satisfied reasonable employer in position of applicant company would have taken steps argued by respondent to avoid the risk of injury applicant sought security for costs of respondent’s appeal – held: respondent had very strong argument on liability on appeal – Court satisfied there was significant risk applicant would not be able to recover costs if successful on appeal – some risk making order for security would stifle appeal – it was very unusual case – no security should be ordered.

Diploma Construction (WA) Pty Ltd v CIMC Modular Building Systems (Australia) Pty Ltd [2015] WASC 384
Supreme Court of Western Australia
Allanson J
Subpoena – plaintiff claimed damages and indemnity for loss, damage and expenses from defendant alleging breach of contract and common law duties – defendant filed defence and counterclaim – insurer obliged by subpoena to produce all policies of insurance maintained under general condition of contract – insurer produced one policy and copy with parts obscured – defendant objected to inspection and copying of policy but not to inspection of redacted copy – masking done to enable reader of redacted copy to see what categories of information deleted – objection based on commercial sensitivity and irrelevance of obscured material – onus – held: no question policy relevant and plaintiff had legitimate forensic purpose – edited information related to identity of party and terms of commercial agreement – no evidence insurer was trade rival of either party to action – no evidence of any prejudice to insurer if inspection permitted – general claim that masked content was commercially sensitive not enough – objection to inspection dismissed.

Stealth Enterprises Pty Limited trading as The Gentleman’s Club v Calliden Insurance Limited [2015] NSWSC 1270
Supreme Court of Queensland
Henry J

Insurance – plaintiff company owned and operated brothel – brothel’s premises insured for fire and business interruption under policy renewed by defendant insurer – fire damaged premises and resulted in brothel ceasing to trade – insurer denied liability under policy on basis plaintiff Calliden failed to comply with disclosure obligations under Insurance Contracts Act 1984 (Cth) – insurer contended failure to comply with disclosure obligations entitled it to reduce its liability under the policy to nil – non-disclosure of association with bikie gang – non-disclosure of lapse of business registration – held: no issue that under s 28(3) insurer could reduce its liability under a policy to nil in appropriate – Court satisfied it was such an appropriate case and that if necessary disclosures had been made, policy would not have been issued in 2010 or renewed in 2011 – judgement for insurer.