Construction Law Review

Construction Law Review – May

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

McGinn v Inner West Council [2018] NSWCA 90
Court of Appeal of New South Wales
Beazley P; Ward JA & Simpson AJA
Land and environment – judgments and orders – fraud – applicant challenged validity of development consent granted to owner of property which adjoined applicant’s residence – development consent was for construction of detached house at house’s rear – application was dismissed by Biscoe J – Court dismissed appeal – applicant sought that Court’s judgment be set aside for fraud – applicant sought new trial – applicant relied on ’new evidence’ constituted by ’s149 planning certificate’ stating that “dual occupancies (detached) development are prohibited” – held: application to set aside judgment for fraud misconceived – ’new local environmental plan’ had been made since judgment – in addition, the application should have been made in separate proceeding – even if applicant had succeeded in obtaining orders sought Biscoe J’s judgments in Land and Environment Court ’would have remained in force’ – applications for judges’ recusal for bias refused – notice of motion dismissed.
View Decision

Bettergrow Pty Limited v NSW Electricity Networks Operations Pty Ltd as trustee for NSW Electricity Networks Operations Trust t/as TransGrid (No 2) [2018] NSWSC 514
Supreme Court of New South Wales
Ball J
Negligence – contract – plaintiff sued defendants for loss arising from fourth defendant’s delivery of asbestos-contaminated excavation waste to facility it owned and operated – facility not licensed to received asbestos-contaminated waste – facility closed during waste’s removal and facility’s decontamination – third defendant had engaged fourth defendant in relation to second stage of substation’s refurbishment and disposal of the waste – first defendant owned substation and engaged second defendant for refurbishment work – second defendant subcontracted work to third defendant – non-delegable duty of care – ’physical damage to property’ – implied terms – reasonable foreseeability – novel duty of care – causation – apportionment – contributory negligence – ss5D, 5R & 35 Civil Liability Act 2005 (NSW) – held: claims against defendants failed – proceedings dismissed.
View Decision


Lin Tiger Plastering Pty Ltd v Platinum Construction (Vic) Pty Ltd [2018] VSC 221
Supreme Court of Victoria
Croft J
Commercial arbitration – applicant was subcontractor – respondent was builder – applicant contracted with respondent for performance of building works – dispute arose – respondent commenced arbitration – arbitrator found arbitral tribunal had jurisdiction on basis that arbitration agreements in subcontracts were valid and were not affected by Domestic Building Contracts Act 1995 (Vic) (DBCA) – applicant sought Court’s determination under s16(9) Commercial Arbitration Act 2011 (Vic) that arbitral tribunal did not have jurisdiction to determine dispute between applicant and respondent – held: Court concluded that DBCA did not apply, and that arbitral tribunal was correct in finding it jurisdiction to determine dispute.
Lin Tiger

Webster v Leighton [2018] TASSC 22
Supreme Court of Tasmania
Brett J
Building and construction – respondent charged with failure to comply with building order issued by applicant Director of Building Control – conceded applicant ‘had cause’ to issue order, that respondent was ‘accredited building practitioner’ at time of work, and had not complied – respondent contended compliance with order not possible, because he ceased to be accredited building practitioner before order issued, such that it would not be lawful for him to carrying out work under order – magistrate found order not valid – applicant sought review – whether order was valid – statutory interpretation – ‘remedial purpose’ – held: magistrate erred in finding order was invalid.
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