Construction Law Review

Construction Law Review – February

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

Owners Corporation No.1 of PS613436T v LU Simon Builders Pty Ltd (Building and Property) [2019] VCAT 286
Victorian Civil & Administrative Tribunal
Judge Woodward, Vice President
Building and construction – contract – proceeding concerned ‘attribution of responsibility to (and among) the eight respondents’ for damage caused by tower fire – 211 applicants (“Owners”) – respondents were builder (first respondent), building surveyor and employer (second and third respondents), architects (fourth respondent), fire engineer (fifth respondent) – sixth and seventh respondents joined only for the purposes of apportionment of liability – eighth respondent reached settlement and withdrew – fire’s cause and spread – whether ‘aluminium composite panels’ compliant with Building Code of Australia – whether breach of warranties – consideration of ‘specific claims’ against parties – contracts between parties – ‘Design and Construct Contract’ – ‘Consultancy Agreement’ – defence of ‘peer professional opinion’ – whether misleading and deceptive representations – contribution claims against Owners – calculation and apportionment of damages – causation – remoteness – proportionate liability – concurrent wrongdoers – Domestic Building Contracts Act 1995 (Vic) – Wrongs Act 1958 (Vic) – Australian Consumer Law – held: Owners entitled to $5,748,233.28 – damages apportioned – further claims to be resolved.
Owners Corporation

Campbell v Hamilton [2019] NSWCA 22
Court of Appeal of New South Wales
Beazley P; Gleeson & White JJA
Real property – easement – contract – appeal concerned whether easement appellant ‘agreed to grant’ in respondents’ favour over part of appellant’s land ‘would bind’ appellant’s ‘successors in title’ – appellant contended instrument which created easement ‘did not clearly indicate the land to which the easement was appurtenant’ – appellant contended instrument ‘unenforceable against’ successors in title under s88(1)(a) Conveyancing Act 1919 (NSW) (Conveyancing Act) – proper construction of ‘Deed of Settlement and Release’ – held: ‘Transfer Granting Easement in the form of Schedule B to the Deed of Settlement and Release’ complied with s88(1)(a) Conveyancing Act – no failure by ‘form of easement’ in Schedule B ‘to indicate clearly’ land to which easement’s benefit was appurtenant – appeal allowed in part – one of primary judge’s declarations set aside – appeal otherwise dismissed.

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Ku-ring-gai Council v Bunnings Properties Pty Ltd [2019] NSWCA 28
Court of Appeal of New South Wales
Beazley P; Basten JA & Preston CJ of LEC
Planning and environment – Commissioner granted consent to respondent’s ‘amended development application’ – Land and Environment Court dismissed appeal – appellant sought to challenge validity of ‘“amber light” approach’ – appellant also sought to challenge Commissioner’s approval of removal of gum tree which appellant alleged to have ‘heritage value’ – whether ‘amber light’ approach under s8.7 Environmental Planning and Assessment Act 1979 (NSW) was ‘authorised by statute’ – whether Commissioner took amber light approach – whether Commissioner ‘acted within power’ – held: appeal dismissed.

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Exyte Singapore Pte Ltd formerly known as M+W Singapore Pte Ltd v Multiplex Constructions Pty Ltd formerly known as Brookfield Multiplex Constructions Pty Ltd [2019] WASC 34
Supreme Court of Western Australia
Vaughan J
Contract – two actions – ‘M + W’ agreed, by subcontract, to ‘execute and complete’ services for ‘Multiplex’ – M + W provided performance bonds to Multiplex – ‘early trial’ granted of ‘specific issue’ arising in the two proceedings – whether Multiplex entitled to call on the performance bonds and access proceeds – proper construction of subcontract – meaning of words ‘rights under security’ in clause of subcontract – held: Court preferred Multiplex’s construction of subcontract – Court satisfied Multiplex was entitled to call on the performance bonds and access proceedings – one action dismissed – other action dismissed to extent it concerned issues ‘subject of the early trial order’.

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