01 Jul Construction Law Review
Construction Law Review – July
See below our Construction Law Review selected from AR Conolly’s Daily Bulletins covering Insurance, Banking, Construction & Government.
Supreme Court of New South Wales
Security of payments – plaintiff sought injunctive relief restraining defendant from acting upon two payment claims made under Building and Construction Industry Security of Payment Act 1999 (NSW) – defendant withdrew one claim – other claim was for amount for work done up to 29 May 2015 – time of termination of contract – held: following issue of notice of termination parties agreed termination would not take effect until end of 29 May 2015 – 29 May 2015 being last business day of month became reference date under contract – on and from 29 May 2015 defendant entitled to progress payment under s8 of the Act and able to serve payment claim using 29 May 2015 as reference date – inclusion of ‘cash held’ item in payment claim did not invalidate it – plaintiff’s claim for injunctive relief failed – summons dismissed.
Court of Appeal of New South Wales
Bathurst CJ; McColl & Emmett JJA
Building and construction – trade practices – negligence – plaintiffs purchased house from owner builder and husband – house was profoundly defective in its construction – sale preceded by false information given by owner-builder and appellant husband to real estate agent which was then passed on with their authority to purchasers – information played significant part in purchasers’ decision to buy – purchasers sought damages for reasonable cost of remedying defects – primary judge gave judgment for purchasers – primary judge satisfied sale was a transaction in trade or commerce and that conduct complained of was in trade or commerce – falsity of representations established – mis-statements made in advertising material direct and intended positively to influence reader to buy – misleading conduct induced purchasers to enter contract – reliance established – claim in negligence not made out – held: primary judge erred in concluding that representations constituted conduct engaged in by appellant in trade or commerce – no contravention on the part of appellant of either ss18 or 30 Australian Consumer Law – appeal allowed.
M J Arthurs Pty Ltd v Heaysman  QCA 113
Court of Appeal of Queensland
M McMurdo P; Holmes JA & Atkinson J
Building contract – service – appellant registered builder unsuccessfully sued respondents under building contract – trial judge held respondents had withdrawn from contract under s72 Domestic Building Contracts Act 2000 by notice of withdrawal given by facsimile transmission – appellant contended trial judge erred in finding notice of withdrawal validly given because notice was not sent to its last known facsimile number, which was the form of service for which building contract provided – held: trial judge properly made findings that number in contract was last facsimile number for appellant known to respondents and that withdrawal notice was served on company by facsimile transmission to that number – appeal dismissed.