Construction Law Review

Construction Law Review – December

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

Meade v Nillumbik Australia Pty Ltd & Anor (Ruling) [2019] VSC 786
Supreme Court of Victoria
Cavanough J
Occupational health and safety – ‘workplace accident’ – plaintiff, during jury trial of personal injury claims by plaintiff against ‘former employer’ and other defendant, sought to rely, as against former employer, on ‘certain regulations’ under Occupational Health and Safety Act 2004 (Vic) – former employer opposed plaintiff’s reliance on the regulations – whether ‘it would have been open to’ jury to find that task plaintiff was engaged on when accident occurred involved ‘risk of a ‘fall’ within the meaning of the regulations, where ‘fall’ was defined to mean ‘a person’s involuntary fall of more than 2 metres’ (finding) – regulations’ ‘proper construction’ – held: finding would not have been open to jury – regulations did not apply – plaintiff could not rely on the regulations.

Barrett-Lennard v River Wind Pty Ltd [2019] WASCA 199
Supreme Court of Western Australia
Murphy, Mitchell & Vaughan JJA
Easement – respondent claimed easement in appellant’s favour did not give access rights to parts of appellant’s farm – primary judge found easement did not give access beyond certain lot (lot 200) to ‘other parts’ of appellant’s farm – primary judge also found ‘no substantial interference’ with use of carriageway – primary judge ordered that appellant pay respondent $5,000 for trespass for use of easement ‘to go from lot 200 to other parts of’ appellant’s farm – appellant appealed against primary judge’s decision – appellant sought alternatively that Court find ‘prescriptive easement’ allowing carriageway user to access parts of ‘appellant’s farm beyond lot 200’ – construction of easement – held: easement did not provide for carriageway’s use for accessing other parts of appellant’s farm beyond lot 200 – appellant not permitted to raise ‘alternative argument’ argument concerning prescriptive easement when it was not raised at trial – appellant established that there was ‘no evidence’ of loss and damage to respondent by carriageway’s ‘excessive use’ – damages reduced to ‘nominal sum’ of $100 – appeal against damages allowed – appeal otherwise dismissed.
Boensch v Pascoe [2019] HCA 49
High Court of Australia
Kiefel CJ; Bell, Gageler, Keane, Nettle, Gordon & Edelman JJ
Bankruptcy – real property – trusts and trustees – appellant was ‘registered proprietor of an estate in fee simple’ over land (‘Rydelmere property’) – Supreme Court of New South Wales found respondent did not act without “reasonable cause” under s74P(1) Real Property Act 1900 (NSW) (Real Property Act) ‘in lodging and not withdrawing a caveat against dealings over’ Rydelmere property – Full Court of the Federal Court of Australia dismissed appeal – appeal raised question whether property which was ‘held by a bankrupt on trust for another’ vested in trustee in bankruptcy pursuant to s58 Bankruptcy Act 1966 (Cth) – whether appellant had ‘equitable interest’ in Rydelmere property subsisting at time of appellant’s bankruptcy arising from his ‘right of indemnity as trustee’ – whether equitable interest vested in respondent – whether equitable interest which vested in respondent was a ‘caveatable interest’ – whether respondent was ‘entitled to be registered as proprietor’ of Rydalmere property under s90 Real Property Act – whether respondent ‘honestly believed on reasonable grounds’ that property vested – held: appeal dismissed.

Civmec Electrical & Instrumental Pty Ltd v Southern Cross Electrical Engineering Limited & Ors [2019] QSC 300
Supreme Court of Queensland
Mullins J
Security of payments – first respondent made ‘adjudication decision’ under Building Industry Fairness (Security of Payment) Act 2017 (Qld) – applicant sought declaration that adjudication decision was void or ‘liable to be set aside’ due to adjudicator’s refusal to consider applicant’s submissions in ‘adjudication response’ – adjudicator found adjudication response had gone “well beyond” reasons given in payment schedule – held: jurisdictional error not established – application dismissed.
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