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.

Hingst v Construction Engineering (Aust) Pty Ltd [2019] VSCA 67
Court of Appeal of Victoria
Priest AP & Beach JA
Negligence – workplace bullying – unfair dismissal – employment – self-represented litigant – applicant employed by respondent – applicant claimed he was bullied in workplace with result he developed injuries – applicant also claimed respondent had ‘unlawfully terminated his employment’ and that he had executed ‘Deed of Release and Settlement’ ‘under duress’ – primary judge dismissed proceeding – applicant challenged primary judge’s ‘factual findings’ – applicant also contended trial was unfair due to primary judge’s breach of duty to unrepresented litigant – held: applicant’s grounds of appeal lacked substance – leave to appeal refused.

Cando Management and Maintenance Pty Ltd v Cumberland Council [2019] NSWCA 26
Court of Appeal of New South Wales
Beazley P; Meagher & White JJA
Environment and planning – respondent sought declaration appellant, in breach of s4.3 Environmental Planning and Assessment Act 1979 (EPA), ’carried out prohibited development for which no development consent was in force’ – respondent also sought declaration appellant breached ss81A(2)(a) & s81A(2)(b) EPA – no dispute appellant breached ss81A(2)(a) & 81A(2)(b) – respondent also sought injunction to restrain appellant from use of premises – appeal concerned two issues – whether primary judge erred in finding lapse of development consent – whether Land and Environment Court could and should have ordered breaches of EPA ’should be sanctioned and authorised’ if certain ’rectification works’ performed – held: development consent had not lapsed – injunction against property’s ’use and occupation’ to continue until appellant obtained construction certificate, appointed ’principal certifying authority’ and obtained occupation certificate – appeal allowed in part.
View Decision

Boss Constructions (NSW) Pty Ltd v Rohrig (NSW) Pty Ltd [2019] NSWSC 374
Supreme Court of New South Wales
Hammerschlag J
Contract – parties sued each other for breach of an ‘asserted contract’ – ‘lengthy commercial dealings’ – whether ‘binding contract’ concluded – ‘objective assessment’ of behaviour of parties – Building and Construction Industry Security of Payment Act 1997 (NSW) – held: neither party established contract which it contended for – no binding contract between parties – claim and cross-claim dismissed.
View Decision

Hampshire Automotive Centre Pty Ltd v Centre Com (Sunshine) Pty Ltd [2019] VSCA 77
Court of Appeal of Victoria
Tate, Niall & Emerton JJA
Real property – easements – trespass – applicant and first respondent were ‘tenants of neighbouring commercial properties’ – applicant breached fence which separated properties – applicant used property of first respondent ‘for access and ingress’ and to store vehicles – first respondent sued applicant in trespass – applicant counterclaimed on basis it used land under easement ‘created by prescription based on long user’ – primary judge found owner’s consent was necessary for counterclaim, dismissed counterclaim and found in favour of first respondent – whether easement could be created by tenant’s use independent of consent of landlord and enforced by person in land’s possession – held: judge incorrectly concluded owner’s consent was required for tenant to enforce easement – dominant’s owner’s ‘knowledge or consent’ not required to create ‘easement by prescription by long user’ – appeal allowed – retrial.

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