Construction Law Review

Construction Law Review – October

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

Cooper v The Owners – Strata Plan No 58068 [2020] NSWCA 250
Court of Appeal of New South Wales
Basten & Macfarlan JJA; Fagan J
Strata titles – applicants owned lot in ’freehold strata scheme’ – applicants kept animal in apartment in contravention of by-law – applicants sought declaration by-law invalid – Senior Member of NSW Civil and Administrative Tribunal found by-law invalid and dismissed respondent’s application concerning contravention of by-law – Appeal Panel upheld respondent’s appeal – applicants sought to appeal – whether entitlement ’to enjoy and exercise the ordinary incidents of ownership of property’ had been ’lawfully constrained’ – validity of by-law – whether by-law was “harsh, unconscionable or oppressive” – ss136(1) & 139(1) Strata Schemes Management Act 2015 (NSW) – held: appeal allowed.
View Decision

Smith v Coles Supermarkets Australia Pty Ltd t/as Coles Distribution Centre; Ready Workforce (A Division of Chandler Macleod) Pty Ltd v Coles Supermarkets Australia Pty Ltd; Coles Supermarkets Australia Pty Ltd v Chandler Macleod Group Ltd [2020] NSWCA 206
Court of Appeal of New South Wales
Leeming JA; Emmett AJA & Adamson J
Negligence – three appeals – appellant (worker) in two appeals injured when he ‘leant forward to lift a carton containing bottles of water from the back of a pallet’ in course of duties as ‘picker/packer’ at centre which ‘Coles’ operated at premises – worker employed by ‘Ready Workforce, which was ‘related corporation’ of ‘Chandler’ – Coles was respondent in two appeals brought by worker – Coles was appellant in third appeal – Chandler was respondent in third appeal – worker sued Coles – worker was entitled to workers’ compensation from Ready Workforce – Ready Workforce sued Coles for recovery of workers’ compensation it paid worker under s151Z Workers Compensation Act 1987 (NSW) – Coles cross-claimed against Chandler in actions brought by worker and Ready Workforce – cross-claims based on ‘service agreement between Coles and Chandler’ – Coles sought ‘contractual indemnity’ and damages for contractual breach – primary judge gave judgment for Coles in actions – primary judge also found in Coles’ favour on cross-claims ‘but awarded nominal damages’ – Coles, worker and Readyforce appealed – ss3B, 5B, 5C, 5D, 5E, 5R & 5S Civil Liability Act 2002 (NSW) – held: appeals dismissed.
View Decision

Citi-Con (Vic) Pty Ltd v Trojan Built Pty Ltd [2020] VSC 557
Supreme Court of Victoria
Stynes J
Security of payments – first defendant issued payment claim under subcontract with plaintiff – plaintiff sought to quash adjudicator’s adjudication determination – plaintiff contended payment claim had ‘no valid reference date’ and was not served in time under Building and Construction Industry Security of Payment Act 2002 (Vic) (SOP Act) – plaintiff alternatively contended payment claim was ‘final payment claim’ and ‘no valid reference date’ was applicable to payment claim – plaintiff also contended failure by adjudicator to determine progress claim’s amount and ‘to provide reasons’ – s23 SOP Act – held: originating motion dismissed.
Anderson v Stonnington Council [2020] VSCA 229
Court of Appeal of Victoria
Maxwell P, Tate & McLeish JJA
Planning and development – administrative law – applicants owned and occupied property – property subject to planning scheme – applicants began development works at time when planning permit not required – planning scheme amended – ’planning permit requirement’ introduced – works ’advanced but unfinished’ – applicants sought declarations of entitlement to complete works without planning permit – Victorian Civil and Administrative Tribunal refused application – trial judge dismissed appeal – whether, when planning scheme amended, applicants ’enjoyed an ‘accrued right’ to complete the works’ for purposes of s28(2)(e) Interpretation of Legislation Act 1984 (Vic) preventing amendment ’from affecting that right’ – whether, ’by virtue of’ s6(3)(d) Planning and Environment Act 1987 (Vic), ’works could continue without compliance with’ requirement for permit – held: leave to appeal granted – appeal dismissed.
Stay Informed – Connect with us on LinkedIn