Construction Law Review

Construction Law Review – October

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

Freeman v Londish [2018] NSWSC 1425
Supreme Court of New South Wales
Stevenson J
Contract – parties entered ‘oral joint venture agreement’ to develop land into a retirement village – parties had falling out – parties each alleged the other had repudiated the agreement – plaintiff sought to recover amount he had advanced – funding obligations under agreement – ‘disputed implied terms’ – whether repudiation of agreement – whether acceptance of repudiation – held: defendant had repudiated agreement – plaintiff had accepted defendant’s repudiation – plaintiff entitled to recover amount advanced – judgment for plaintiff.
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Carr v Miller [2018] NSWSC 1424
Supreme Court of New South Wales
McDougall J
Building and construction – contract – third defendant was proprietor of residence – third defendant arranged with second defendant to undertake redevelopment – first defendant was builder – when works ‘substantially complete’, third defendant agreed to sell property to plaintiff – plaintiff contended she was ‘deceived into completing the contract’, claiming ‘false certificates’ were provided concerning compliance with development consent and Home Warranty Insurance – plaintiff claimed loss in sum of difference between purchase price and property’s ‘true value’ – plaintiff also contended building work done by second defendant or at his direction was defective – plaintiff, alternatively, claimed damages for defects – breach of contract claims – deceit claims – negligence claim – breach of statutory warranties claims – s92 Home Building Act 1989 (NSW) – held: plaintiff succeeded on various claims.
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Fussell v Deigan [2018] NSWSC 1419
Supreme Court of New South Wales
Parker J
Contract – equity – estoppel – proceedings concerned contract for sale of land – land owned by deceased – plaintiff was purchaser – defendant was executrix – plaintiff and deceased entered contract – completion date passed without settlement occurring – deceased died – defendant contended special condition of contract entitled deceased’s ‘legal personal representative’ to rescind contract if deceased died – defendant sought to rescind contract under special condition – plaintiff sought specific performance compelling defendant to complete contract – whether clause of contract permitted contract to be rescinded on deceased’s behalf following death – whether clause should be rectified – whether defendant not entitled to rescind due to estoppel, breach of contract by deceased, ‘accrued right to specific performance’ and/or relief against forfeiture – whether defendant had authority to issue first rescission notice as she had not obtained probate – whether subsequent grant of probate retrospectively conferred authority on defendant – held: plaintiff entitled to specific performance because, in issuing second rescission notice, defendant took advantage of breach of contract by deceased’s estate in failing to complete contract – judgment for plaintiff.
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Hamersley Iron Pty Ltd v Forge Group Power Pty Ltd (In Liquidation) (Receivers and Managers Appointed) [2018] WASCA 163
Court of Appeal of Western Australia
Murphy & Mitchell JJA; Allanson J
Corporations – contract – appellant as principal engaged respondent as builder to carry out works – appellant obtained funding from bank – appellant granted bank security over its personal property – bank registered charge under Personal Property Securities Act 2009 (Cth) (PPSA) – Receivers appointed to respondent – respondent went into liquidation – disputes arose concerning parties claims against each other – appellant contends claims against respondent exceeded respondent’s claims against it – appellant contended it was entitled to set-off of its claims against respondent’s claims – respondent contended appellant had no right to deduction or set-off – primary judge found in respondent’s favour on preliminary issues – appellant appealed – whether s553C Corporations Act 2001 (Cth) entitled appellants’ claims to be set off against respondent’s claims with balance to ‘admissible to proof’ against respondent – held: appellant was entitled to set-off its claims against respondent’s claims – appeal allowed.


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