Construction Law Review

Construction Law Review – July

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

RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130
Court of Appeal of New South Wales
Gleeson & Payne JJA; Preston CJ of LEC
Environment and planning – appellant sought development consent in respect of proposed building – respondent refused application – appellant revised plans and submitted ’revised request’ – Land and Environment Court refused revised request and dismissed appeal – appellant contended primary judge misconstrued and misapplied cl 4.6(3) & (4)(a)(i) North Sydney Local Environmental Plan 2013, misconstrued and misapplied objectives of ’height development standard’, misconstrued and misapplied ’objective (f)’ of ’height development standard’ and denied appellant procedural fairness by ’not affording’ “amber light approach” to appellant – held: grounds of appeal not established – appeal dismissed.
View Decision
Canberra Drilling Rigs Pty Ltd v Haides Pty Ltd [2019] ACTCA 15
Court of Appeal of the Australian Capital Territory
Murrell CJ, Mossop & Loukas-Karlsson JJ
Security of payments – primary judge dismissed appellant’s challenge to adjudication determination – appellant appealed – appellant contended primary judge failed to determine ‘jurisdictional fact’ whether ‘claimed work’ was performed under construction contract and, as a consequence, erroneously failed to determine whether first respondent entitled to payment for work under contract and erroneously held that decision in Estate Property Holdings v Barclay Mowlem Construction Ltd [2004] NSWCA 393 meant claim within time under s15(4) Building and Construction Industry (Security of Payment) Act 2009 (ACT) – ‘jurisdictional requirements’ of s15(4) of the Act – whether ‘the objective fact’ of work done construction contract was ‘a condition of the adjudicator exercising jurisdiction’ – Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190 – held: appeal dismissed.

Cootes v Concrete Panels & Ors [2019] QSC 146
Supreme Court of Queensland
Crow J
Negligence – plaintiff worker injured when ‘excavation collapsed upon him at a work site’ – plaintiff sued first defendant employer, second defendant ‘principal contractor’ and third defendant ‘project manager and site supervisor’ – principal contractor’s duty of care – employer’s non-delegable duty of care to employee – whether contributory negligence – held: breach of duty by defendants established – causation established – no contributory negligence – judgment for plaintiff against first defendant in sum of $548,612.95 – judgment for plaintiff against second and third defendants in sum of $909,504.00.

AIG Australia Limited v Kaboko Mining Limited [2019] FCAFC 96
Full Court of the Federal Court of Australia
Allsop CJ; Derrington & Colvin JJ
Insurance – ‘insolvency exclusion’ – preliminary issue – appellant issued insurance policy ‘to cover directors and officers’ of first respondent – first respondent brought proceedings against four ‘former directors and officers’, claiming breach of ‘duties to act with due care and diligence’ in management of company’s affairs ‘and to act in good faith’ in company’s best interests – former directors and officers claimed indemnity under policy – appellant denied liability and contended that ‘insolvency exclusion’ endorsed on policy applied – primary judge, in determination of preliminary issue, found that cover for first respondent’s claims under policy was not precluded by insolvency exclusion – appellant appealed – ‘proper construction’ of insolvency exclusion – held: appeal dismissed.
AIG Australia

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