Benchmark Special Edition: Thursday, 4 February 2016
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AR Conolly Company Lawyers.
A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Daily Construction

Executive Summary (One Minute Read)
Pittaway v Noosa Cat Australia Pty Ltd (QCA) - contract - construction contract - erroneous dismissal of proceedings for want of prosecution - appeal allowed
Nolan v Nolan (QCA) - judgments and orders - no basis for application of slip rule - application refused
Summaries With Link (Five Minute Read)
Pittaway v Noosa Cat Australia Pty Ltd [2016] QCA 4
Court of Appeal of Queensland
Morrison JA; Douglas & North JJA
Contract - construction contract - linked agreements - applicant and respondent entered two linked agreements by which applicant would build shed for respondent and respondent would build boat for applicant - applicant contended he built shed but respondent’s company did not pay full amount as required - applicant also contended respondent did not build boat as required - applicant sued respondent and company for damages for breach of contract - proceedings dismissed for want of prosecution - applicant sought leave to appeal - whether appeal necessary to correct substantial injustice - whether reasonable argument there was error - delay - prejudice - s118(3) District Court of Queensland Act 1967 (Qld) - rr5, 214(2)(e), 280, 389 & 444 Uniform Civil Procedure Rules 1999 (Qld) - held: primary judge erred in finding circumstances warranted dismissal - dismissal of claim amounted to substantial injustice - leave to appeal granted - appeal allowed.
Nolan v Nolan [2016] QCA 5
Court of Appeal of Queensland
Gotterson & Morrison JJA; Boddice J
Judgments and orders - slip rule - Court allowed appellants’ appeal, dismissed respondent’s cross-appeal, set aside orders below and made orders that appellants pay respondent sum - respondent sought variation to orders on basis of slip rule because sum did not accord to 17.5 percent of net assets of farming enterprise - “the net value of assets” - held: no basis to apply slip rule - figure awarded to respondent reflected contribution to common endeavour in respect of net increase in farming enterprise’s assets - application refused - no relevant offer from respondent to be considered on costs - appellants’ informal offer was for higher sum than that awarded to respondent on appeal - however appellants made no formal offer and respondent ultimately successful at trial save for one issue - parties to pay own costs of trial - respondent to pay appellants’ costs of appeal and cross-appeal.