Construction Law Review

Construction Law Review – November

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

Advanced National Services Pty Ltd v Daintree Contractors Pty Ltd [2019] NSWCA 270
Court of Appeal of New South Wales
Gleeson & White JJA; Barrett AJA
Contract – appellant claimed ’liquidated sum’ (sum) from respondent under ’cleaning services agreement’ or damages in amount of sum for contractual breach – 90% of work performed on appellant’s behalf ’undertaken by subcontractors’ – primary judge found appellant breached agreement by use of ’unauthorised subcontracted labour’ – primary judge allowed claim for sum in part – claim allowed in respect only of cleaning services appellant itself performed – appellant appealed against primary judge’s rejection of ’balance of its claim’ – construction of contract – whether claimed sum was ‘earned’ at date respondent terminated agreement and, if so, whether ’any accrued right to receive the contract price would continue’ after respondent’s ’valid termination’ – held: appellant had not earned ’contract price’ for services provided by unauthorised subcontracted labour – appeal dismissed.
View Decision

BI (Contracting) Pty Ltd v David Jones Ltd [2019] SASCFC 138
Full Court of the Supreme Court of South Australia
Kourakis CJ; Kelly & Hinton JJ
Workers compensation – respondent’s former employee brought claim against respondent for personal injury arising from asbestos exposure in course of employment – action settled – respondent paid amount to former employee – respondent, pursuant to s6 Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA), brought action seeking contribution from appellant – primary judge found that respondent was entitled to recovery of 75% of its ‘reasonable liability’ – appellant sought extension of time to appeal – appellant contended respondent did not establish former employee had been exposed to asbestos which appellant sprayed – appellant also contended that primary judge applied ‘incorrect legal test’ in finding respondent proved ‘quantum of it alleged loss’ – held: appeal dismissed.
BI (Contracting)
Gordon v Lever (No 2) [2019] NSWCA 275
Court of Appeal of New South Wales
Bell P, Payne JA & Emmett AJA
Real property – easements – first and second appellants (appellants) sought easement – primary judge granted easement – easement granted ‘on terms’ limiting circumstances ‘in which persons could avail themselves of’ it – appellants appealed – ‘key issue’ concerned easement’s terms – whether terms ‘not practically or legally workable’ or ‘not reasonably so’ – whether terms were ‘uncertain in their practical operation’ – whether easement was ‘reasonably necessary all of the time’ not some of the time – whether primary judge should not have imposed terms on grant of easement – ss88K & 89 Conveyancing Act 1919 (NSW) – Crown Land Management Act 2016 (NSW) – held: appeal allowed in part.
View Decision

Royal and Sun Alliance Insurance Plc v DMS Maritime Pty Limited [ 2019] QCA 264
Court of Appeal of Queensland
Fraser & McMurdo JJA; Boddice J
Contract – insurance – deed of settlement – respondent contracted with Commonwealth in relation to the design, manufacture, production, delivery and maintenance of ‘fleet of Armidale Class Patrol Boats’ (patrol boat contract) – appellant insurer ‘agreed to indemnify’ respondent for liability under patrol boat contract ‘for loss or damage to any vessel in’ respondent’s ‘care, custody or control’ for ‘purpose of being worked upon’ (insurance contract) – patrol boat, while in possession of respondent, was destroyed by fire – respondent became liable to Commonwealth for payment of sum under deed of settlement following patrol boat’s loss – primary judge found appellant ‘obliged to indemnify’ respondent – appellant appealed – proper construction of patrol boat contract, deed of settlement and insurance contract – quantification of loss – mitigation – ‘reasonable settlement’ – held: appeal dismissed.
Royal and Alliance Insurance
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