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.

Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in liq); Ostwald Bros Pty Ltd (in liq) v Seymour Whyte Constructions Pty Ltd [2018] NSWSC 412
Supreme Court of New South Wales
Stevenson J
Contract – security of payments – corporations – Seymour Whyte Constructions Pty Ltd (Seymour White) as contractor entered contract with Ostwald Bros Pty Ltd (now in liquidation) (Ostwald) as subcontractor to perform works – Seymour Whyte terminated contract under clause providing for ’termination without cause’ – Ostwald had earlier served payment claim on Seymour Whyte under Building and Construction Industry Security of Payment Act 1999 (NSW) (Act) – Seymour Whyte did not pay Ostwald any of scheduled amount – Ostwald made adjudication application – adjudicator determined amount due by Seymour Whyte to Oswald – Seymour White contended determination was void as adjudication application was not made in time specified in s17 of the Act – held: Court satisfied that contract should rectified as Ostwald contended by deletion of certain special conditions – Ostwald’s adjudication application was in time – determination valid – any judgment obtained by Ostwald to be stayed until procedure in s553C Corporations Act 2001 (Cth) finalised.
View Decision

Watkins Contracting Pty Ltd v Hyatt Ground Engineering Pty Ltd [2018] QSC 65
Supreme Court of Queensland
Brown J
Security of payments – applicant engaged first respondent to carry out works – parties entered construction contract but disputed its terms – applicant contended its contract terminated by principadue to incident, and that it terminated contract with respondent due to respondent’s breach of contract, or frustration on head contract’s termination – respondent made payment claim under Building and Construction Industry Payments Act 2004 (Qld) after contract allegedly terminated – adjudicator found in respondent’s favour – applicant contended adjudicator had no jurisdiction due to absence of available reference date , and that adjudicator erred by failing to consider its submissions – applicant also contended adjudicator denied it natural justice – held: adjudicator considered applicant’s submissions, did not deny applicant natural justice and did not commit jurisdictional error – application dismissed.

Laing O’Rourke Australia Construction Pty Ltd v Monford Group Pty Ltd [2018] NSWSC 491
Supreme Court of New South Wales
Stevenson J
Security of payments – – plaintiff was head contractor in relation to project – plaintiff engaged defendant subcontractor – defendant sought adjudication of payment claim under s17 Building and Construction Industry Security of Payments Act 1999 (NSW) – adjudicator found defendant entitled to payment of sum – dispute concerned variations claimed by defendant – adjudicator had found defendant entitled to part of sum claimed for variations – defendant had claimed 68 variations – plaintiff contended that adjudicator allowed defendant’s claim for 12 of the variations without considering the merits of the claim – principles in Pacific General Securities Ltd v Soliman & Sons (2006) 196 FLR 388 – held: adjudicator failed to consider merits of claim – adjudication quashed.
View Decision

A & A Martins Pty Limited v Liu [2018] ACTSC 102
Supreme Court of the Australian Capital Territory
McWilliam AsJ
Restitution – quantum meruit – plaintiff was construction company – defendants were owners of property – plaintiff contended it ‘substantially built a residential dwelling’ for defendants on property and it was not paid for most of the work, including materials supplied to defendants – defendants contended house substantially built by another corporate entity, a matter decided in Maples Winterview Pty Ltd v Liu and Li [2015] ACTSC 58 (Maples v Winterview) – defendants contended they did not pay for dwelling’s construction due to defects – defendants contended plaintiff was subcontractor which they had no obligation to pay – defendants also contended they became aware of plaintiff’s involvement only upon decision in Maples Winterview – ‘proper plaintiff’ – whether unconscionable for defendants to retain benefit without payment – whether ‘operable defence’ – remedy – held: defendants required to pay ‘a fair and reasonable sum’ for supplied goods and services – judgment for plaintiff.
A & A

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