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Allens Arthur Robinson

Constructive knowledge – 1 November 2000

In brief: AAR research assistant Symone Bates gives a brief summary of recent cases and journals in the construction area.

Cases

Assaf v Skalkos [2000] NSWSC 935 (10 October 2000)

Supreme Court of NSW, Carruthers AJ - Defamation - Calderbank letter of offer by plaintiffs including requirement of apology - Offer deemed to be rejected by defendants - Application by plaintiff for indemnity costs and calculation of interest on damages - Costs awarded on party and party basis until date at which defendant walked away from settlement negotiations, thereafter, costs awarded on indemnity basis.

Borch & Ors v Answer Products Inc & Ors [2000] QSC 379 (26 October 2000)

Supreme Court of Qld, Homes J - Practice under rules of court - Service outside the jurisdiction - Court's enquiry under Rule 124 Uniform Civil Procedure rules is purely as to whether the proceedings fall within the categories set out in Rule 124, and there are no competing issues of convenience such as may arise in application for leave, or for stay of proceedings - Onus lies on the defendant whose application it is to set aside service.

Dart v Norwich Union Life Australia Ltd [2000] FCA 1362 (19 September 2000)

Federal Court of Australia, Queensland, Spender J - Application to strike out statement of claim where it pleads substantially similar causes of action to that struck out in earlier proceedings - Where appears that a possible cause of action, within Federal jurisdiction, could be pleaded if applicants given leave to re-plead - leave to re-plead within 21 days with pleadings limited to causes of action that applicants have.

Eisa Ltd v Brady [2000] NSWSC 929 (28 September 2000)

Supreme Court of NSW, Santow J - Application by non-party (Australian Financial Review) for access to pleadings before final hearing and against objection of parties - where grounds that financial press publish fair and accurate reports in the public interest - whether exceptional circumstances made out - exceptional circumstances not made out - public interest in relation to current proposals for plaintiff, does not require access to pleadings - unfair prejudice to parties if pleadings released prematurely.

Finance Sector Union of Australia v Commonwealth Bank of Australia Ltd [2000] FCA 1389 (4 October 2000)

Federal Court of Australia, NSW, Moore J - particular discovery - application to cross-examine on affidavit of discovery - whether affidavit is conclusive - an affidavit verifying discovery or an affidavit supplementing the affidavit verifying discovery should ordinarily be treated as conclusive and cross-examination should be permitted only in order to do justice between the parties or to prevent an abuse of the Court's processes.

Girffin Projects Pty Ltd v Pivot Ltd [2000] FCA 1433 (13 October 2000)

Federal Court of Australia, NSW, Sackville J - Order made that proceedings should be transferred to the Supreme Court of NSW under s86A(1) of the Trade Practices Act 1974 (Cth) rather than under s5(4) of the Jurisdiction of Court (Cross-Vesitng) Act 1987 (Cth) - Order made on the basis that the Supreme Court has power to grant the remedies sought; there is no federal element in the applicant's claim; there is a good chance that the most convenient and expeditious course in relation to the assessment of damages will be to appoint a referee pursuant to Part 72 of the Supreme Court Rules and an equivalent procedure is not available in this court.

Hafele Australia Pty Ltd v Maggbury Pty Ltd & Anor [2000] QCA 397 (3 October 2000)

Court of Appeal of Queensland, McPherson and Thomas JJA, Muir J - Discovery and inspection of documents - grounds for resisting production - legal professional privilege - waiver of privilege - no effective step taken to prevent documents becoming part of public record and available for public inspection - waiver of privilege.

Hampton Park Central Pty Ltd v Australian Safeway Stores Pty Ltd [2000] VSC 422 (20 October 2000)

Supreme Court of Victoria, Byrne J - Practice and Procedure - application by defendant to join two defendants involved in the construction - whether question between plaintiff and proposed defendant 'may exist' (ie. more than speculation and that the legal basis is not unarguable) - whether duty of care owed by paving subcontractor to ultimate owner - whether duty of care owed by project manager to ultimate owner - application failed with respect to one defendant and succeeded with respect to the other.

Imagecolor (SA) (in liquidation) v Curtis [2000] SASC 316 (11 September 2000)

Supreme Court of South Australia, Doyle CJ - Practice and procedure - Appeal against ruling of master that issue of third party notice required leave of court and notice should be set aside unless leave granted - where appellants contend that whenever defence is amended defendant is at liberty to issue and serve third party notice without leave - Leave is required to issue third party notice.

Lines MacFarlane & Marshall Pty Ltd v Fletcher Construction Australia Ltd [2000] VSC 358

Supreme Court of Victoria, Nathan J - Construction law - prisons - design and construct contracts - limited time trials - architect's standard of care - class of works - qualifications of expert witnesses - standard of care required by consultancy agreement discharged - had architectural services been required then the defendant waived strict compliance with the contractual terms - design defects were not caused by architectural services.

Minson Nacap Pty Ltd v Aquatec-Maxcon Pty Ltd [2000] VSC 402 (5 October 2000)

Supreme Court of Victoria, Byrne J - Practice and procedure - summary judgment - claim based on progress certificates issued under AS4303-1995 - claim based on uncertified progress claims - whether progress claims formally defective - whether payment must be made without deduction for defective work - whether stay of execution - contract contemplates that credit should be given by the certifier and the claimant, not for previous certificates or claims, but for previous payments - no stay of execution granted.

NATO International (Australasia) Pty Ltd v TLIG Marketing Corporations & Ors [2000] QSC 341 (5 October 2000)

Supreme Court of Qld, Ambrose J - Security for costs - further disclosure/particulars required to show case defendant must meet before security for costs issue can be determined - if no such particulars are given it would be open to the defendant to have the Schedules to the Statement of Claim struck out as being an embarrassment.

Parker v Queensland Building Services Authority [2000] QCA 422 (13 October 2000)

Supreme Court of Qld, Court of Appeal, McPherson, Davies JJA and Mullins J - Building contract in the form prepared by the Queensland Building Services Authority for residential construction - statutory insurance against loss - extent and scope of cover - whether work done in building a Bed & Breakfast facility constitutes 'residential construction work' within the meaning of the policy - whether the issuing of the certificate of insurance was conclusive to that work being residential construction work - the issue of the certificate was not conclusive - works did not fall within the definition of residential construction work.

Radic v Henley Properties (NSW) Pty Ltd [2000] FCA 1416 (11 October 2000)

Federal Court of Australia, Sackville J - Practice and procedure - transfer of proceedings under Trade Practices Act 1974 (Cth) s86A - dispute arising out of residential building contract - no contractual claim pleaded - whether in interest of justice to transfer to state court - proceedings not transferred.

Babsari Pty Ltd v Wong [2000] QSC 380 (27 October 2000)

Supreme Court of Qld, White J - Costs - Non-parties - defendant successful at trial - whether non-party directors of plaintiff company should pay the costs ordered against the plaintiff - where something more is required than merely directing the litigation on behalf of the company a court should be slow to make an order against a director who, on the evidence, was effectively under the domination of her co-director husband - director (husband) to pay costs.

Southern Equities Corp Ltd ( In liquidation) v Bond (No 3) [2000] SASC 318

Supreme Court of SA, Debelle J - Application for Mareva orders - assets in Queensland - assets in the hands of non-parties - availability of orders against non-parties - principles on which orders may be granted - regard to commercial reality - Mareva orders made - defendants ordered to file affidavit of assets.

The Trustees of the Roman Catholic Church for the Diocese of Sydney v Hughes Bros Pty Ltd & Ors [2000] NSWCA 296 (27 October 2000)

Supreme Court of NSW, Court of Appeal, Rolfe J - Principal in building contract exercises power under contract to exclude contractor from site, complete the works and charge the contractor for any 'difference' in total cost - litigation decides principal's exercise of power valid - in later litigation contractor succeeds in establishing principal in breach of contract at time when exclusion power exercised - principal in cross action establishes entitlement to and amount of 'difference' - question in appeal whether contractor could recover amount of 'difference' as part of its damages.

Held: as a matter of construction, contractor not disentitled by any contractual provision from showing that its liability to pay 'difference' was relevantly caused by principals' breaches, and there was no basis for interfering with conclusion below that it had done so; further, the way in which the litigation about the validity of the exclusion was conducted meant that the contractor was not estopped from claiming the amount of the 'difference' as part of its damages.

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Journals / Newsletters 

Building and Construction Law, Volume 16, October 2000, No. 5
  • Jon Holland Construction & Engineering Ltd v Majorca products and Bruce Henderson
  • Graham Evans v Stencraft
  • Acorn Consolidated v Hawkslade Investments
  • Kennedy Taylor (vic) v Baulderstone Hornibrook
  • Devaugh v Lamac Developments

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