24 Feb Construction Law Review – February 2022

Construction Law Review

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

V601 v Probuild [2021] VSC 849

Supreme Court of Victoria
Digby J
Application for order – applicant commenced proceedings seeking recovery of liquidated damages entitlements under contract, relying on certificates issued by project manager which purported to certify that liquidated damages were due and payable by respondent to applicant for each day after agreed dates for practical completion, until actual dates of practical completion, for each of separable portions of work under contract (WUC) – finding that respondent’s case not in nature of global claim or total cost claim because respondent’s delay claims set out nature of each relevant delaying event and how each relevant delaying event gave rise to respondent’s claimed delay, in particular including by reference to actual critical path to completion of each relevant separable portion as established – finding that applicant provided no satisfactory explanation for failing to call development director as witness to give evidence – finding that witness’ evidence on matters in dispute would have been unfavourable to applicant – finding that respondent entitled to recover additional costs respondent had expended in efforts to overcome and minimise delay to works, in order that works achieved practical completion by dates required by contract, as damages flowing from applicant’s breach, by its project manager, in not awarding and compensating respondent in relation to extensions of time to which respondent was entitled during course of performance of WUC – finding that respondent’s cost, loss and damage was within contemplation of both applicant and respondent – finding that subject acceleration costs, loss and damage was caused by applicant’s breaches, by its project manager, in denying respondent time extension process agreed and intended to be underwritten by contract, and by ultimately denying respondent its time extension entitlements as determined – application dismissed.
V601 v Probuild

Kalgovas v Iliopoulos [2022] NSWSC 70

Supreme Court of New South Wales
Darke J
Proceeding concerns excavation works carried out near boundary with adjoining land in 1980s – works reduced support provided to adjoining land – excavation works and steps taken to restore support to adjoining land were undertaken negligently – failure to install retaining wall on part of boundary – dry stone retaining wall installed along another part of boundary – wall not designed and appropriately constructed to cater for hydrostatic pressure and migration of soil – defendants’ conduct held to be negligent and a breach of duty – breach held to have caused damage to structures on adjoining land – mandatory injunctive relief to be granted to require defendants to carry out works to restore support to adjoining land – amount to breaches of the duty referred to in s177 of the Conveyancing Act – dry stone retaining wall encroaches to a minor degree upon adjoining land – wall inadequate to maintain support for adjoining land – encroachment itself does not cause any substantial impediment or restriction upon use of adjoining land – inadequacies in wall able to be remedied by works that do not involve removal of wall – order sought for removal of wall in order to remove encroachment – large cost of removal and replacement of wall – held not appropriate in the circumstances to make order for removal of the wall under Encroachment of Buildings Act 1922 (NSW), s3 – plaintiffs succeed on negligence claim pursuant to s177 of the Conveyancing Act.
Kalgovas

Development Watch Inc v Sunshine Coast Regional Council & Anor [2022] QCA 6

Supreme Court of Queensland – Court of Appeal
Morrison and McMurdo JJA and Burns J
Primary judge constituting the Planning and Environment Court dismissed two submitter appeals against the respondent Council’s decision to approve an application for mixed use development in the Sunshine Coast region – under the relevant planning scheme, the height of buildings and structures in the proposed development was required to be consistent with the reasonable expectations of the local community – under the relevant planning scheme, regard was to be had to properly made community submissions about the proposed development – considerable number of properly made community submissions opposing the proposed development on grounds including the height of the buildings and structures in the proposed development – applicant argued primary judge failed to pay proper regard to the community submissions opposing the development, and being “out of step with the effect of the planning scheme when read as a whole” – the judge erred by failing to find what the reasonable expectations of the local community” were regarding the overall outcome 8.2.8.2(2)(b) of Version 8 of the Sunshine Coast Planning Scheme – the relevant planning scheme had been amended by the time of the appeal to the Planning and Environment Court – primary judge erred in law by deciding not to consider the version of the planning scheme current at the time of the appeal – appeal allowed.
Development Watch Inc v Sunshine Coast Regional Council & Anor

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