Construction Law Review

Construction Law Review – April

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

JR Consulting & Drafting Pty Limited v Cummings [2016] FCAFC 20
Full Court of the Federal Court of Australia
Bennett, Greenwood & Besanko JJ

Contract – proceedings relating to ownership and control of software used in design and manufacture of items used in construction of buildings – primary judge determined Deed of Agreement between first appellant and first respondent abandoned and termination of licence agreement between second appellant and second respondent invalid – construction of contract – doctrine of abandonment – principles in relation to copyright in computer software – ss236, 237 Australian Consumer Law – ss10(1), 13(2), 14(1), 22(1), 29(1) & (2), 31(1), 32(1) and (2), 36(1), 36(1A), 115 &135AQ(2) Copyright Act 1968 (Cth) – s126Trade Marks Act 1995 (Cth) – appeal dismissed – cross-appeal allowed to extent of variation of restraint orders and declaration to be made.
JR Consulting

Bergman v CGU Insurance Ltd [2016] VSC 81
Supreme Court of Victoria
Hargrave J

Insurance – non-disclosure – misrepresentation – plaintiff obtained landlord’s insurance for property he purchased – building on property damaged by fire – .property was vacant in preparation for demolition before commencing building works – plaintiff sought cost of rebuilding or repairing damaged portions of buildings – insurer refused payment on basis plaintiff failed to disclose intention to demolish, gave false answer to specific question and suffered no loss because he intended to demolish buildings – held: plaintiff breached s 21(1)Insurance Contracts Act 1984 (Cth) by not disclosing matters relevant to risk – plaintiff’s answer to question concerning demolition was false and contained misrepresentation-insurer’s liability reduced to nil by s28 – unnecessary to decide whether plaintiff suffered loss – judgment for insurer.

Barrak Corporation Pty Ltd v Jaswil Properties Pty Ltd [2016] NSWCA 32
Court of Appeal of New South Wales
Beazley P; Sackville & Emmett AJJA

Conveyancing – equity – appellant vendor and respondent purchaser entered contract for sale of land – agreed completion date passed – vendor issued notice to complete with time of the essence – vendor failed to provide transfer pursuant to s27 Corporations Act 2001 (Cth) at settlement – vendor served notice of termination on purchaser – purchaser sought specific performance and damages for delay – primary judge held contract validly terminated for breach of essential time stipulation but ordered equitable relief in purchaser’s favour – vendor appealed against grant of equitable relief to purchaser and sought declaration contract terminated and vendor entitled to forfeit deposit – purchaser sought declaration that contract was not terminated and remittal of matter for determination of damages – “preventing principle” – held: a vendor who failed to provide transfer to purchaser in registrable form was not willing and able to complete – a vendor not willing and able to complete was not entitled to terminate for failure of purchaser to complete – vendor’s termination was invalid – appeal dismissed – cross-appeal allowed.

Rankilor v City of South Perth [2016] WASCA 29
Court of Appeal of Western Australia
Buss, Newnes & Murphy JJA

Negligence – appellant injured when she fell after tripping on protruding paver – appellant sued respondent for failure to maintain footpath to prevent tree roots from lifting the pavers – ss5B & 5Z Civil Liability Act 2002 (WA) – ss9.56 & 9.57Local Government Act 1995 (WA) – s5(4)(a) Occupiers’ Liability Act 1985 (WA) – primary judge dismissed claim – held: open to primary judge to find respondent did not breach duty of care – appeal dismissed.