Daily Construction: Friday, 13 November 2015
For the best view, please download images or click here
AR Conolly Company Lawyers.
A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Daily Construction

Executive Summary (One Minute Read)
JM & PM Holdings Pty Ltd v Snap-on Tools (Australia) Pty Ltd (NSWCA) - contract - franchise agreement - “monthly cash flow projection” spreadsheet not relied on in decision to enter agreement - appeal dismissed
Surfstone Pty Ltd v Morgan Consulting Engineers Pty Ltd (QSC) - costs - rejection of offer to settle not unreasonable - indemnity costs refused - unsuccessful plaintiffs to pay defendant’s costs on standard basis
Meyer v Cool Chilli Pty Ltd (ACTSC) - work injury - negligence - worker injured in slip and fall from ladder - employer negligent - breaches of statutory duty by employer and third party - third party liable to employer for 25% contribution
Benchmark Television
Click here to watch the video
Matthew Collins QC on Drafting Imputations
Internationally acclaimed author on the law of defamation Dr Matthew Collins QC discusses the pleading of imputations in defamation actions and importantly what not to do.
Summaries With Link (Five Minute Read)
JM & PM Holdings Pty Ltd v Snap-on Tools (Australia) Pty Ltd [2015] NSWCA 347
Court of Appeal of New South Wales
Macfarlan & Leeming JJA; Emmett AJA
Contract - franchise agreement - first appellant franchisee entered franchise agreement with respondent franchisor which gave franchisee right to operate a “Snap-on” franchise - franchisee fell into arrears - agreement terminated - franchisor sued franchisee and second appellant director and shareholder of franchisee for recovery of debt - director sued on a guarantee - franchisor obtained judgment against appellants - appellants had cross-claimed based on contraventions of ss52 & 51AD Trade Practices Act 1974 (Cth) in relation to “monthly cash flow projection” spreadsheet (document) given to director before entry into agreement - primary judge found aspects of document misleading but found director did not rely on it when entering into agreement - appellants challenged dismissal of cross-claim - held: no appellable error demonstrated in primary judge’s findings that document not relied on in decision to enter agreement - appeal dismissed.
JM & PM Holdings
Surfstone Pty Ltd v Morgan Consulting Engineers Pty Ltd [2015] QSC 322
Supreme Court of Queensland
P Lyons J
Indemnity costs - defendant established limitation clause formed part of contract between it and plaintiffs - defendant sought indemnity costs on basis of non-acceptance by plaintiffs of its offer to settle by discontinuance of action with no order as to costs - whether r361 Uniform Civil Procedure Rules 1999 (Qld) applied - held not a straightforward matter to determine whether limitation clause was included in contract - it was reasonable for plaintiffs not to accept defendant’s offer - order for indemnity costs refused - plaintiffs to pay defendant’s costs on standard basis.
Meyer v Cool Chilli Pty Ltd [2015] ACTSC 336
Supreme Court of the Australian Capital Territory
Mossop AsJ
Work injury - negligence - breach of statutory duty - apportionment - plaintiff worked in IT support role for defendant employer - plaintiff working at premises of third party - while plaintiff climbing ladder to get into ceiling space it slipped from beneath her and she injured herself - plaintiff sued employer in negligence - employer issued third-party notice against third party seeking contribution or indemnity - ss21 & 168 Civil Law (Wrongs) Act 2002 (ACT) - s24 Scaffolding and Lifts Act 1912 (ACT) - Workers Compensation Act 1951 (ACT) - ss6, 7, 73 & 80 Scaffolding and Lifts Regulation 1950 (ACT) - held: employer breached duty of care to plaintiff and was liable for damage caused by accident - no contributory negligence - third party claim failed insofar as relied on allegation of negligence - work being carried out was building work under Scaffolding and Lifts Act - both third party and employer breached s73 Scaffolding and Lifts Act when they carried out work in ceiling space - employer breached s80(7) Scaffolding and Lifts Act - appropriate contribution from third party was 25% - judgment for plaintiff against employer - judgment for employer against third party.
Poem for Friday (Recitation here by Thomas Hellier)
The Lake Isle of Innisfree

I will arise and go now, and go to Innisfree,
And a small cabin build there, of clay and wattles made;
Nine bean-rows will I have there, a hive for the honey-bee,
And live alone in the bee-loud glade.

And I shall have some peace there, for peace comes dropping slow,
Dropping from the veils of the morning to where the cricket sings;
There midnight’s all a glimmer, and noon a purple glow,
And evening full of the linnet’s wings.

I will arise and go now, for always night and day
I hear lake water lapping with low sounds by the shore;
While I stand on the roadway, or on the pavements grey,
I hear it in the deep heart’s core.