Construction Law Review

Construction Law Review – February

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

Medallion Homes Pty Ltd v Lares Homes Pty Ltd [2016] FCA 12
Federal Court of Australia
Besanko J

Interlocutory injunction – consumer law – copyright – corporations – applicant sought interlocutory injunction restraining respondents from reproducing floor plans and constructing display home- applicant contended respondents copied its plans and also sought to restrain respondents from making allegedly misleading or deceptive representations on website and promotional material –Australian Consumer Law – s35 Copyright Act 1968 (Cth) – Corporations Act 2001 (Cth) – prima facie case – balance of convenience – held: applicant’s causes of action failed to support grant of interlocutory injunction – balance of convenience in respondents’ favour – application dismissed.

Jobema Developments Pty Ltd v Zhu [2016] NSWSC 3
Supreme Court of New South Wales
Black J
Real property – conveyancing – plaintiff vendor sought order under 66ZLConveyancing Act 1919 (NSW) permitting it to rescind off the plan contract for sale with fourth defendant under sunset clause – ss15, 16, 66ZL, 66ZL(4), 66ZL(6) & 66ZL(7) – Conveyancing Amendment (Sunset Clauses) Act 2015(NSW) – “sunset date” – whether just and equitable to grant leave – whether purchaser consented to rescission – whether plaintiff acted unreasonably or in bad faith – reason for delay in creating subject lot – effect of rescission on purchaser – whether reasons for rescission established – held: permission to rescind contract refused – application dismissed.

Nightingale v Blacktown City Council [2015] NSWCA 423
Court of Appeal of New South Wales
Beazley P; Basten, Macfarlan, Meagher & Simpson JJA

Negligence – appellant injured when he stepped into depression in footpath – appellant sued Council in negligence – trial judge dismissed claim on basis appellant failed to prove Council as “roads authority”, had “actual knowledge of “particular risk the materialisation of which resulted in the harm” – provision in s45 Civil Liability Act 2002 (NSW) that roads authority “not liable” if the harm arose from “a failure of the authority to carry out road work, or to consider carrying out road work” – “actual knowledge” – whether majority view in North Sydney Council v Roman [2007] NSWCA 27 correct – whether Council liable because it conducted inspections negligently – principle of restraint in relation to departure from previous authority – held: Roman should remain binding – no basis for inference that Council’s officers about whom evidence was led and with relevant knowledge for purposes of test in Roman had “actual knowledge” of relevant risk – immunity in s45 applied because failure to repair footpath caused injury – appeal dismissed.

Metropolitan Fire and Emergency Services Board v Yarra City Council[2015] VSC 773
Supreme Court of Victoria
Riordan J

Environment and planning – negligence – plaintiff acquired site from State – plaintiff claimed compensation and damages against first defendant arising from remediation of contamination on site – preliminary issue of plaintiff’s entitlement to compensation and damages – whether defendant liable for breaches of alleged duties of care and provisions of Environment Protection Act 1970 (Vic) – whether bluestone pit found on site was storage tank previously used by City for storing coal tar – liability pursuant to s62A(2) – disclosure duty – demolition duty – non-pollution duty – planning duty – statutory duty in s45(1) – causation – held: s62A(2) provided occupier who incurred costs complying with clean up notice could claim compensation from certain persons – defendant was person described in ss62A(1)(b) & (c) – Court could order defendant to compensate plaintiff – plaintiff did not establish any other causes of action.

Zwiersen v Field & Hall Pty Ltd [2016] VSC 16
Supreme Court of Victoria
Rush J

Negligence – contribution proceedings – joint tortfeasors – plaintiff electrician claimed damages for contraction of mesothelioma in course of employment due to negligent exposure to asbestos – defendants conceded breach of duty of care – plaintiff settled claim against first., second and fourth defendants – first, third and fourth defendants sought contribution against each other pursuant to Pt IV Wrongs Act 1958 (Vic) – parties’ respective responsibilities – apportionment between first defendant employer, and third and fourth defendant manufacturers/suppliers – contribution – held: in relation to culpability, third and fourth defendants, as compared to first defendant, should share more significant contribution on apportionment – first, third and fourth defendants liable for contraction of mesothelioma – liability apportioned in amounts of 20% for first defendant, 40% for third defendant and 40% for fourth defendant.