Construction Law Review

Construction Law Review – December

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

The White Ant Co Pty Ltd v Robson [2015] NSWCA 345
Court of Appeal of New South Wales
Macfarlan & Gleeson JJA; Emmett AJA

Contract – appellant contractor and respondents (homeowner) made deed of arrangement relating to termite infestation in house Homeowner constructed on property – homeowner claimed contractor liable under deed to pay reasonable costs of rectification of damage – District Court judge gave judgment for homeowner – contractor contended primary judge erred in drawing inference there was evidence of actual damage caused by termites and in finding contractor liable under deed – construction of deed – whether clause of deed (liability term) enlivened other than by operation of deed’s other provisions – held: primary judge’s conclusion that contractor was liable had been based not on operative provisions of deed but on estoppels binding contractor as consequence of entering deed – homeowner’s construction of deed rejected – clause of deed (liability term) was not enlivened – leave to appeal revoked insofar it related to quantification of damages – appeal allowed.
The White Ant

Meyer v Cool Chilli Pty Ltd [2015] ACTSC 336
Supreme Court of the Australian Capital Territory
Mossop AsJ

Work injury – negligence – breach of statutory duty – apportionment – plaintiff worked in IT support role for defendant employer – plaintiff working at premises of third party – while plaintiff climbing ladder to get into ceiling space it slipped from beneath her and she injured herself – plaintiff sued employer in negligence – employer issued third-party notice against third party seeking contribution or indemnity – ss21 & 168 Civil Law (Wrongs) Act 2002 (ACT) – s24 Scaffolding and Lifts Act 1912 (ACT) – Workers Compensation Act 1951 (ACT) – ss6, 7, 73 & 80 Scaffolding and Lifts Regulation 1950 (ACT) – held: employer breached duty of care to plaintiff and was liable for damage caused by accident – no contributory negligence – third party claim failed insofar as relied on allegation of negligence – work being carried out was building work under Scaffolding and Lifts Act – both third party and employer breached s73 Scaffolding and Lifts Act when they carried out work in ceiling space – employer breached s80(7) Scaffolding and Lifts Act – appropriate contribution from third party was 25% – judgment for plaintiff against employer – judgment for employer against third party.

Napier v BHP Billiton (Worsley Alumina) Pty Ltd [2015] WASCA 230
Court of Appeal of Western Australia
McLure P; Buss & Newnes JJA

Workers compensation – appellant sought to appeal against primary judge’s refusal of leave to appeal from decision of WorkCover arbitrator – proper construction and application of cl17(1) of Sch 1. Workers’ Compensation and Injury Management Act 1981 (WA) – nature and extent of nexus required between compensable injury or resulting incapacity and medical or surgical treatment for injured worker to be entitled to recover expenses – held: appellant’s case on appealmaterially different to case run below – appellant’s case not supported by medical evidence or arbitrator’s findings of fact – no basis to interfere with primary judge’s decision – leave to appeal refused – appeal dismissed.

North Coast Conveyancing Pty Ltd v Bradbury [2015] NSWCA 361
Court of Appeal of New South Wales
Basten & Leeming JJA; Emmett AJA

Negligence – conveyancing – respondents entered deed of option for purchase of property – option fee was 10% of purchase price – deed required option to be exercised by certain date and time – option not exercised – respondents forfeited fee – respondents had occupied premises subject of option for weekly fee – respondents also incurred expenditure by improving property – respondents sued appellant which acted for them with respect to deed of option and proposed agreement for sale, seeking to recover option fee, interest, fees, disbursements and amount spent on improvements – trial judge gave judgment for respondents – trial judge rejected claim for expenditure by improvements – appellants appealed – appellant contended trial judge failed to make necessary findings with respect to causation- held: appeal allowed in light of respondents’ concessions – it was ultimately common ground trial judge did not make critical findings of fact on causation – judgment in favour of respondent set aside.
North Coast Conveyancing