Daily Construction: Thursday, 14 May 2015 View in browser

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

Daily Construction

Executive Summary (One Minute Read)
Delaney v Winn (NSWCA) - negligence - no breach of duty of care or negligence by building inspector - appeal dismissed
Sugar Australia Pty Ltd v Lend Lease Services Pty Ltd (VSCA) - building contract - balance of convenience did not support injunction restraining resource to bank guarantees - appeal allowed
Summaries With Link (Five Minute Read)
Delaney v Winn [2015] NSWCA 124
Court of Appeal of New South Wales
Ward, Emmett & Gleeson JJA
Negligence - prior to purchase of home appellants obtained property inspection report including report on property’s condition based on visual inspection carried out by respondent building consultant - respondent attended site meeting with first appellant and father at which respondent advised on engagement of structural engineer concerning retaining wall showing evidence of movement - after rain first appellant found “new looking” cracking - another building inspector and engineer assessed condition of dwelling as below average - property sold for amount less than what appellants paid - appellants sued respondent seeking damages and equitable compensation - primary judge found building consultant had not breached duty of care to carry out pre-purchase property inspection in compliance with Australian Standard and had not provided negligent advice - ss5D & 16 Civil Liability Act 2002 - held: primary judge did not err in not articulating or finding duty of care for which appellants had not contended in pleadings or otherwise - primary judge did not err in conclusions on expert evidence or credit findings - no error in conclusion respondent’s inspection and advice did not fall below standard expected of reasonably competent building inspector - appeal dismissed.
Sugar Australia Pty Ltd v Lend Lease Services Pty Ltd [2015] VSCA 98
Court of Appeal of Victoria
Osborn, Ferguson & Kaye JJ
Building contracts - dispute concerning performance of contract works - appeal against decision granting interlocutory injunction restraining recourse to two bank guarantees which builder had provided to an owner under building contract - whether proprietor acting reasonably in seeking recourse to security - held: primary judge erred in failing to reach concluded view as to correct construction of clause governing availability of recourse to security - balance of convenience did not support grant of injunction - appeal allowed.