Daily Construction: Wednesday, 11 November 2015
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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)
Stuart Olson Dominion Construction Ltd. v. Structal Heavy Steel (SCC) - trusts - liens - interaction between statutory remedies of construction liens and statutory trusts in provincial legislation - trust and lien provisions existed separately and could be concurrently pursued - appeal dismissed
TriCare (Hastings) Ltd v Allen (NSWCA) - competency of appeal - appeal misconceived and incompetent because brought against reasons, not “judgment or order” - appeal dismissed
Francis v Duffy (WASC) - real property - mortgage - application for access to and vacation of farming properties - interlocutory injunction granted
Summaries With Link (Five Minute Read)
Stuart Olson Dominion Construction Ltd. v. Structal Heavy Steel, 2015 SCC 43
Supreme Court of Canada
McLachlin C.J. and Rothstein, Cromwell, Moldaver, Wagner, Gascon & Côté JJ
Trusts - liens - appellant was general contractor - respondent was subcontractor for construction project - respondent filed builder’s lien against property on which work being done - appellant filed lien bond in amount of respondent’s claim and sought declaration it had satisfied its trust obligations - respondent sought payment of its past-due invoices upon appellant receiving funds from owner - Court of Appeal overturned decision of motion judge that security in form of lien bond extinguished appellant’s trust obligations pursuant to Manitoba Builders’ Liens Act - Court of Appeal concluded subcontractors had two rights to sue for breach of contract beyond common law right: right to statutory trust and right to file lien - interaction of statutory remedies of construction liens and statutory trusts in provincial legislation - held: trust and lien provisions independent and could be pursued concurrently under s66 - lien bond secured contractor’s or subcontractor’s lien claim and did not extinguish obligations under statutory trust - filing of lien bond did not affect existence and application of trust remedy - appeal dismissed.
Stuart Olson Dominion
TriCare (Hastings) Ltd v Allen [2015] NSWCA 344
Court of Appeal of New South Wales
Ward & Simpson JJA; Tobias AJA
Competency of appeal - NSW Civil and Administrative Tribunal (NCAT) terminated residential site agreements concerning respondent’s relocatable dwellings under s113 Residential Parks Act 1998 (NSW) (the Act) and granted appellant vacant possession of land on which dwellings located - NCAT awarded respondents compensation pursuant to s128 - respondents sought judicial review of NCAT’s findings - appellant sought to challenge primary judge’s obiter observations concerning construction of s130A regarding valuation of dwellings - appellant also sought variation of primary judge’s remittal order in light of its construction of s130A - s101(1)(a) Supreme Court Act 1970 (NSW) - held: appeal misconceived and incompetent because it was brought against reasons not “judgment or order” - appeal dismissed as incompetent.
Francis v Duffy [2015] WASC 426
Supreme Court of Western Australia
Beech J
Real property - mortgage - first defendants were partners in farming partnership - director of second-named first defendant owned properties - second plaintiff bank provided facilities to first defendants secured by securities including mortgage over properties - first plaintiffs were receivers and managers of properties appointed by bank under mortgages - plaintiffs sought orders that defendants give them access to and vacate farming properties - interlocutory injunction principles - held: bank had established strong prima facie case in respect of all allegations - no delay by bank - balance of injunction favoured granting of injunction - injunction granted.