Construction Law Review

Construction Law Review – March

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

Marketform Managing Agency Ltd for and on behalf of the Underwriting Members of Syndicate 2468 for the 2009 Year of Account v Ashcroft Supa IGA Orange Pty Ltd [2020] NSWCA 36
Court of Appeal of New South Wales
Ward CJ in Eq; Leeming & Payne JJA
Negligence – insurance – second respondent employed by company (‘Skillset’) injured while working at first respondent’s premises – at time of accident second respondent under first respondent’s ‘direction and control’ – second respondent contended first respondent’s negligence cause his ‘accident and injury’ – primary judge found in second respondent’s favour against first respondent – no challenge on appeal to finding of first respondent’s liability – primary judge found second respondent guilty of 10% contributory negligence – primary judge found Skillset was party who, if sued by second respondent, ‘would have been liable’ – primary judge made apportionment of 10% against Skillset – first respondent held insurance policy with appellant (‘Shopping Malls Combined Liability Policy’) – first respondent had cross-claimed against appellant as to its liability to second respondent – appellant ‘denied indemnity’ in reliance on exclusion clause – primary judge found exclusion clause ‘did not apply’ – s151Z(2) Workers Compensation Act 1987 (NSW) – construction of insurance policy and exclusion clause – whether erroneous finding exclusion clause did not apply – whether erroneous finding of contributory negligence – whether erroneous assessment of Skillset’s ‘notional contribution’ – whether erroneous calculation of damages – J Blackwood & Son v Skilled Engineering [2008] NSWCA 142 – held: appeal dismissed – cross-appeal allowed – damages increased.
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Chan v Chan [2020] VSCA 40
Court of Appeal of Victoria
Maxwell P, Tate & Forrest JJA
Land recovery – possession – trusts and trustees – dispute between brother and sister concerning land’s ownership – respondent was registered proprietor of two units – respondent paid deposit on units with money her parents gave her – respondent and applicant brother lived in ‘Unit 2’ while respondent rented other bedrooms in ‘Unit 2’ and all bedrooms in Unit 1. – respondent serviced repayments on mortgage with income from rent – when applicant married applicant wife he moved into Unit 1 with her and collected rent from tenants in Unit 1 – . applicant brother claimed that money parents gave respondent was to purchase Unit 2 and hold Unit 1 ‘on trust for him’ – respondent ‘brought summary proceedings’ seeking to evict applicants – respondent denied she held Unit 1 on trust for applicant – Court, under O53 County Court Civil Procedure Rules 2018 (Vic), granted respondent orders for land’s ‘summary recovery’ – applicants sought to appeal – whether ‘summary procedure available and appropriate’ – whether applicants were ‘tenants at will or licensees’ – whether respondent held Unit 1 on trust for applicant brother – held: appeal allowed.
Hallmark Construction Pty Ltd v Brett Harford; Copeland Building Services Pty Ltd v Hallmark Construction Pty Ltd; Hallmark Construction Pty Ltd v Harford Transport Pty Ltd [2020] NSWCA 41
Court of Appeal of New South Wales
Basten & Meagher JJA; Emmett AJA
Negligence – worker (Mr Harford) injured when he fell into ’retention pit’ – worker sued principal contractor on site (Hallmark) – Hallmark cross-claimed against building contractor (Copeland), employer of Mr Harford (Harford) and ’two insurance companies’ which were responsible for liabilities of employer of Copeland’s site supervisor – parties agreed damages to be assessed at $1.6 million – judgment given in worker’s favour against Hallmark and Copeland, with equal apportionment of liability – claims against ANM and Harford dismissed – Harford claimed against Hallmark for recovery of workers’ compensation payments it made to worker – Harford obtained judgment against Hallmark, for which Copeland found liable on cross-claim, with equal apportionment of liability – four appeals by Hallmark and Copeland – Hallmark did not challenge liability finding but challenged rejection of its contributory negligence claim against Mr Harford – appeals otherwise involved disputed liability findings including apportionment – held: Hallmark’s two appeals allowed in part – Copeland’s two appeals dismissed.
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Universal 1919 Pty Ltd v 122 Pitt Street Pty Ltd [2020] NSWCA 50
Court of Appeal of New South Wales
Macfarlan, Meagher & Gleeson JJ
Administrative law – environment and planning – first respondent was heritage listed premises’ registered proprietor – appellant had possession of premises under registered lease – appellant sought judicial review of Development Control Order (DCO) which second respondent issued to first respondent – primary judge dismissed application – whether denial of procedural fairness – whether carving of flag into wall required ‘development approval’ or ‘Heritage Council’ approval – whether carving of flag was ‘in any event approved in both respects as part of the 2016 renovation works approval’ – whether DCO void due to failure to give notice to renovation works’ ‘principal certifier’ – s4.2 Environmental Planning and Assessment Act 1979 (NSW) – s57(1) Heritage Act 1977 (NSW) – held: appeal dismissed.
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