Construction Law Review

Construction Law Review – August

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

Austin v Verini [2015] WASC 258
Supreme Court of Western Australia
Allanson J

Insurance contract – exclusion clause – personal legal liability cover – preliminary question – balcony collapsed at house while owners holding party – plaintiffs standing on balcony when it collapsed and suffered injury – house built by defendant – plaintiffs sued defendant – defendant issued third party notice against insurer claiming indemnity against plaintiffs’ claims under policy – insurer contended exclusion clause applied – exclusion clause stated insurer did not insure against liability for personal injury caused by or arising out of breach of insured’s duty as owner or occupier of building which was not insured by insurer at time of occurrence that caused injury – parties agreed insurer did not insurer defendant against loss or damage to house or contents at time of balcony collapse – whether third party liable to indemnify defendant – whether liability of defendant for breach of duty was breach as owner – whether ownership integral to duty of care – construction of policy – ss4 & 4A(1)(c)Builders’ Registration Act 1939 (WA) – held: both parties accepted defendant had duty of care to plaintiffs and breached that duty – Court satisfied duty was not a duty ‘as the owner’ – insurer liable to indemnify defendant – defendant entitled to orders sought in third party statement of claim.

Austin

Diploma Construction (WA) Pty Ltd v Best Bar Pty Ltd [No 2] [2015] WASC 230
Supreme Court of Western Australia
Allanson J

Contract – plaintiff builder obtained steel reinforcing bar (rebar) for projects from defendant – defendant gave notice it was increasing price of rebar- plaintiff paid increased prices at least in part up to certain date – plaintiff gave notice to defendant  of termination of two contracts on ground defendant breached them – plaintiff sought declarations contracts were for fixed price, that it validly terminated contracts for defendant’s repudiation, and damages – whether parties contracted on terms and conditions advanced by plaintiff which precluded increase in price during term of contract – whether to extent plaintiff paid increased prices it did so under duress – held: plaintiff failed to prove it contracted in terms alleged – claims for declarations, rescission and avoidance of contract, and for refund of overpayments failed – claim for duress also failed – plaintiff’s claim dismissed – counterclaim allowed.

Diploma