Construction Law Review

Construction Law Review – March

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

Hyblewski v Bellerive Homes Pty Ltd [2019] ACTSC 44
Supreme Court of the Australian Capital Territory
Mossop J
Building and construction – contract – plaintiff purchased land and executed contract with first defendant builder for construction of house on land – plaintiff engaged second defendant company (Asset Building Services) to perform certifier functions under Building Act 2004 (ACT) – plaintiff claimed certifier ‘failed to exercise due care and skill’ in performance of functions – whether breach of contract by certifier – approach to role – defects which a certifier compliant with ‘statutory and contractual obligations’ would have identified – damages – whether ‘apportionment provisions’ in ss140 & 141 of the Act applicable – held: judgment for plaintiff in sum of $156,706.

Fullinfaw v Neil Fletcher Design Pty Ltd [2019] VSC 142
Supreme Court of Victoria
Garde J
Contract – administrative law – plaintiffs were owners – defendant was builder – plaintiffs ended ‘major domestic building contract’ with defendant under ‘no fault’ provision in s41 Domestic Building Contracts Act 1995 (Vic) – Victorian Civil and Administrative Tribunal rejected plaintiffs’ claim for liquidated damages – plaintiffs sought to appeal – whether plaintiffs entitled to deduct liquidated damages for delay from amount payable to builder for work done before end of contract – whether ‘right to liquidated damages had accrued’ by building contract’s termination date – whether erroneous failure to determine builder’s ‘extension of time’ claim – whether builder failed to provide evidence in support of claim for extension of time – cap in s41(6) of the Act – whether evidence to support claim of amount for liquidated damages – held: appeal allowed.

Brisbane City Council v Klinkert [2019] QCA 40
Court of Appeal of Queensland
Gotterson & Philippides JJA; Boddice J
Planning and environment – Council refused development application seeking approval to demolish house – primary judge upheld respondent’s appeal – Council, pursuant to s63 Planning and Environment Court Act 2016 (Qld) sought to appeal – whether to grant leave to appeal – construction of Planning Act 2016 (Qld) – whether compliance with ‘assessment benchmarks’ – assessment manager’s obligations concerning development applications – whether s60(2)(a) Planning Act required approval of respondent’s application by assessment manager ‘once it was determined there was compliance’ with ‘relevant assessment benchmarks’ operating at time of application – held: leave to appeal granted – appeal dismissed.

In the matter of SBC Construction Pty Ltd [2019] NSWSC 310
Supreme Court of New South Wales
White J
Corporations – winding up – statutory demand – defendant served statutory demand on plaintiff – debt arose from adjudication determinations under Building and Construction Industry Security of Payment Act 1999 (NSW) – plaintiff sought to set aside statutory demand – plaintiff contended at time statutory demand served and originating process filed, no judgment was in existence against plaintiff for claimed amount – plaintiff also sought to set aside statutory demand on basis of off-setting claims – held: at time statutory demand served on plaintiff defendant did not have judgment debt in claimed amount – Court retrospectively amended judgment – whether to set demand aside ‘because it was not verified when the debt claimed was not a judgment debt at the time of service of the demand, but is retrospectively to be taken as having been such a judgment debt’ – whether to set aside demand on condition plaintiff pay demanded amount into Court – ss459E & 459J Corporations Act 2001 (Cth) – held: statutory demand set aside.
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