Construction Law Review

Construction Law Review – August

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

Ward v Allianz Australia Services Pty Ltd [2019] NSWDC 293
District Court of New South Wales
Judge J Smith SC
Workers compensation – workplace bullying – plaintiff formerly employed by defendant – plaintiff suffered ‘psychiatric conditions’ – plaintiff contended ‘bullying and harassment’ by manager ‘materially caused’ his condition – plaintiff contended defendant liable for manager’s ‘intentional infliction of harm’ – plaintiff claimed damages – defendant admitted plaintiff was bullied by manager but denied liability – whether manager’s conduct deliberate – whether defendant liable for manager’s ‘deliberate conduct’ – whether defendant not liable for ‘physical aspects’ of manager’s treatment of plaintiff because those aspects not authorised by defendant – whether manager’s conduct could be ‘divided’ – Div 3 Pt 5 Workers Compensation Act 1987 (NSW): s151E – held: manager’s conduct could not be divided – manager’s ‘course of conduct’ was ‘intimately connected’ with task due to being done in ‘apparent execution of the authority’ defendant had given him as ‘State Manager’ – unnecessary to deal with plaintiff’s claim in negligence but it would not have succeeded – judgment for plaintiff in sum of $1,394,421.91.
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James Engineering Pty Ltd v ABB Australia Pty Ltd & Anor [2019] NTCA 7
Court of Appeal of the Northern Territory
Blokland & Hiley JJ; Graham AJ
Security of payments – appellant and respondent were parties to contract for ‘design, manufacture, transport and delivery of switch rooms in the form of modular buildings’ to site – appellant sought adjudication of ‘Payment Claim’ under Construction Contracts (Security of Payments) Act 2004 (NT) – adjudicator determined respondent was to pay $1,516,310.40 without allowance for respondent’s claimed entitlement to ‘set-off liquidated damages’ – trial judge set adjudicators’ decision aside, finding adjudicator ‘failed to deal with the merits’ of respondent’s set-off claim – appellant appealed – whether trial judge had concluded case ‘on basis not put’ – whether trial judge erred in finding error by adjudicator – whether adjudicator’s errors constituted jurisdictional error – held: appeal dismissed.
Harris v K7@Surry Hills Pty Ltd [2019] VSC 551
Supreme Court of Victoria
Derham AsJ
Contract – sale of land – plaintiff claimed he lawfully terminated contract of sale for purchase of property ‘off-the-plan’ from defendant – plaintiff sought declaration he ‘validly rescinded’ contract, return of deposit, variation of contract to include certain ‘requirements’ concerning provision of ‘fixed car parks’ and ‘storage spaces’, or damages – defendant counterclaimed for declaration that plaintiff had wrongfully repudiated contract and order, pursuant to s9AF(1)(a) Sale of Land Act 1962 (Vic), that it was ‘entitled to be paid and retain the deposit’ – construction of contract – whether ‘Plan H’ compliant with ‘special condition 38’ concerning car spaces – held: plaintiff ‘validly rescinded’ contract – plaintiff entitled to deposit’s return.

Conservation Council of WA Inc v The Hon Stephen Dawson MLC, Minister for Environment; Disability Services [2019] WASCA 102
Court of Appeal of Western Australia
Buss P; Beech & Pritchard JJA
Environment and planning – statutory construction – appellants contended statement of Minster which approved project’s implementation was invalid due to breach of s45(6)(a)(ii) Environmental Protection Act 1986 (WA) (EPA Act) – whether erroneous construction of EPA Act – whether to accept appellants’ construction of s45(6)(a) EPA Act – challenges to fact-finding – held: appeal dismissed.
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