| Cook Building and Development Pty Ltd v Citicorp International Ltd (FCA) - pre-action discovery - prospective applicant granted leave to serve originating process and affidavits on prospective respondent in Hong Kong in People’s Republic of China |
| Cavric v Willoughby City Council (NSWCA) - highways - negligence - customer injured in shopping centre - car park did not constitute a public road - appeal allowed |
| Laing O'Rourke Australia Construction Pty Ltd v Samsung C & T Corporation (WASC) - construction contract - adjudicator misapprehended nature of function - determinations invalid and quashed |
| Summaries With Link (Five Minute Read) |
Cook Building and Development Pty Ltd v Citicorp International Ltd [2015] FCA 703
Federal Court of Australia
White J
Pre-action discovery - service - prospective applicant construction company sought leave to serve originating process and affidavits on prospective respondent in Hong Kong in People’s Republic of China - whether prima facie case for order for pre-action discovery - held: requirements of r10.43(3) Federal Court Rules 2011 satisfied - no readily available alternative means by which applicant could serve proceedings - leave granted pursuant to rr10.42 & 10.43 leave to serve originating process and affidavits on prospective respondent in People’s Republic of China in accordance with the Hague Convention
Cook
[From Benchmark Monday, 13 July 2015]
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Cavric v Willoughby City Council [2015] NSWCA 182
Court of Appeal of New South Wales
Basten, Meagher & Emmett JJA
Highways - negligence - real property - appellant wheeling trolley laden with shopping and child - front wheel on trolley hit “pothole” - trolley tilted - appellant inured when she fell seeking to stop trolley overturning - appellant sued Council for negligent maintenance of car park - trial judge dismissed claim on basis car park was public road by operation of s249(1) Roads Act 1993 with result Council protected by s45 Civil Liability Act 2002 - if car park did not constitute public road appeal must be upheld - statutory scheme - continued operation of common law - whether conveyance effected dedication of a road - evidence of public use - ‘is evidence that the place is or forms part of a public road’ - held: trial judge misunderstood s249(1) as providing freestanding test as to whether place was public road - s249 was no more than an evidentiary provision describing evidence which was admissible to prove a place was or formed part of that public road - s249 was subject to constraint imposed by s178 Conveyancing Act 1919 - in circumstances where there was no other evidence besides public use, trial judge should have found status of place where accident occurred as a public road was not established - appeal allowed.
Cavric
[From Benchmark Tuesday, 7 July 2015]
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Laing O'Rourke Australia Construction Pty Ltd v Samsung C & T Corporation [2015] WASC 237
Supreme Court of Western Australia
Mitchell J
Construction contract - parties entered into a Subcontract - Samsung terminated subcontract for convenience - parties entered into an 'Interim Deed' which provided Samsung make payments to Laing O’Rourke - one payment made under Interim Deed - adjudicator appointed under Construction Contracts Act 2004 (WA) determined Samsung must pay Laing O’Rourke amount - Samsung sought to quash determinations for jurisdictional error - held: adjudicator committed jurisdictional error by failing to resolve payment disputes by reference to terms of Subcontract before him - adjudicator misapprehended nature of his function - determinations not authorised by Act and invalid - leave to enforce the determinations refused.
Laing
[From Benchmark Wednesday, 8 July 2015]
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