Construction Law Review

Construction Law Review – November

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

Silver Star Fashions Pty Ltd v Dal Broi [2018] NSWSC 1445
Supreme Court of New South Wales
Darke J
Land law – contract – plaintiff vendor sought, under s66ZL(6) Conveyancing Act 1919(NSW) (Conveyancing Act), to rescind nine ‘off the plan’ contracts under “sunset clause” – contracts concerned mixed-use development of property plaintiff owned – defendants were purchasers under contracts – s66ZL not enacted when contracts entered – s66ZL introduced ‘with retrospective effect’ by Conveyancing Amendment (Sunset Clauses) Act 2015 (NSW) – purchasers contended vendor had failed to comply sunset clause, challenged validity of notices vendor claimed to have served under s66ZL(4), and contended Court should not be satisfied it ‘just and equitable in all the circumstances’ to grant order permitting vendor to rescind – vendor’s conduct – delay – loss to purchasers if rescission permitted – held: Court not satisfied that making order permitting rescission of contracts was just and equitable in all the circumstances – purchasers had not ‘unreasonably withheld consent’ to contracts’ rescission – vendor liable to pay purchasers’ costs.
View Decision

Silver Star Fashions Pty Ltd v Dal Broi (No 2) [2018] NSWSC 1697
Supreme Court of New South Wales
Darke J
Costs – plaintiff vendor, under s66ZL(6) Conveyancing Act 1919 (NSW), sought permission to rescind off the plan contracts under “sunset clause” – court dismissed Statement of Claim – Court ordered plaintiff to pay defendants’ costs – plaintiff, and first to tenth defendants sought variation of costs order – first to tenth defendants sought indemnity costs order in reliance on Calderbank offer – plaintiff sought limitation of costs it was ordered to pay eleventh and twelfth defendants to “the proportion of costs of each of the first to tenth defendants” – whether rejection of Calderbank offer unreasonable – whether unreasonable for eleventh and twelfth defendants to retain legal representation separate to representation of first to tenth defendants – held: Court satisfied to grant indemnity costs order in favour of first to tenth defendants – Court not satisfied to limit costs to be paid to eleventh and twelfth defendants – costs orders varied.
View Decision


Ian Street Developer v Arrow International [2018] VSCA 294
Court of Appeal of Victoria
Maxwell P; McLeish & Niall JJA
Statutory interpretation – security of payments – applicant entered construction contract with first respondent – dispute concerned payment claim which first respondent issue under s14 Building and Construction Industry Security of Payment Act 2002 (Vic) (Security of Payment Act) – payment claim referred to adjudicator – adjudicator found applicant liable to pay amount to builder – adjudication completed outside time limit – proceedings concerned question upon which Security of Payment Act was ‘silent’ – question was whether non-compliance with time limit rendered adjudication decision void – ‘whether it was a purpose of the legislation that an act done in breach of the provision should be invalid.’ – primary judge found that non-compliance with time limit ‘was not intended to render the adjudication decision invalid’ – statutory interpretation – held: appeal dismissed.
Ian Street Developer

Pacific National Pty Ltd v Baldacchino [2018] NSWCA 281
Court of Appeal of New South Wales
Macfarlan & Payne JJA; Simpson AJA
Workers compensation – appellant appealed against decision in which Deputy President Snell of the Workers Compensation Commission held that a ‘total knee replacement’ was an “artificial aid” under s59A(6)(a) Workers Compensation Act 1987 (NSW) (Workers Compensation Act) – decision’s effect was that total left knee replacement that respondent ‘reasonably needs’ due to workplace injury was ‘not subject to the time limits on compensation’ in ss59A(1) & (2) Workers Compensation Act – Thomas v Ferguson Transformers Pty Ltd [1979] 1 NSWLR 216 – held: no error in finding that the total knee replacement was an “artificial aid” under s 59A(6)(a) Workers Compensation Act – appeal dismissed – application for leave to appeal dismissed.
View Decision


 Stay Informed – Connect with us on LinkedIn