Construction Tuesday, 3 March 2015 View in browser

A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.


Executive Summary (One Minute Read)
Falkingham v Peninsula Kingswood Country Gold Club (VSCA) – costs – unsuccessful appellant – no order as to costs of appeal, notice of contention and appellants’ summonses
Fogarty v CGU Insurance Ltd (ACTSC) – insurance contact – no breach by insurer of obligation to repair or duty of utmost good faith
Summaries With Link (Five Minute Read)
Falkingham v Peninsula Kingswood Country Gold Club [2015] VSCA 30
Court of Appeal of Victoria
Costs – Court dismissed appeal - appellant sought that respondent indemnify him for costs of appeal and proceeding below, or there be no order for costs in relation to notice of appeal, and that respondent pay his costs of notice of contention, on which respondent was unsuccessful - respondent submitted costs should follow the event - success on separate issues – whether proceeding akin to derivative proceeding - held: in all circumstances, costs of appeal as between parties should be dealt with in same way as trail judge dealt with costs of proceeding at first instance - no order as to parties’ costs of  appeal, notice of contention, and appellant’s summonses, save for order already made on joinder application.
Fogarty v CGU Insurance Ltd [2015] ACTSC 44
Supreme Court of the Australian Capital Territory
Murrell CJ
Insurance contract – insurer entered contract with appellant to insure building and contents against accidental loss or damage, including damage by fire – fire in kitchen of premises – insurer accepted claim and elected to repair damage – dispute arose in relation to damaged caused to three kitchen floorboards – insured sued insurer under s57 Insurance Contracts Act 1984 (Cth) for cost of repairs - insured asserted insurer breached contract by failing to repair damage – Magistrate entered judgment for insured – parties appealed and cross-appealed – held: grounds of appeal and cross-appeal in relation to specific performance allowed - Magistrate erred in finding insurer breached contractual obligation to repair and in finding that insurer breached its duty of utmost good faith – cross-appeal upheld – verdict for insurer