Daily Construction: Tuesday, 23 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)
Lawrence v Gunner (No 3) (NSWCA) - judgments and orders - pleadings - joinder - subpoena - stay - notice of motion dismissed - costs orders
Duckworth v Water Corporation [No 3] (WASC) - pleadings - costs - extension of time to apply to amend pleadings following determination of preliminary issues - non-party to pay defendant’s costs of action to date
Australian Maritime Systems Ltd v McConnell Dowell Constructors (Aust) Pty Ltd (WASC) - arbitration - dispute resolution clause - parties referred to arbitration - proceedings stayed
JMT Builders Pty Ltd v. Ryan (NTSC) - abuse of process - building contract - writ filed pursuant to deed of settlement - issuing proceedings in absence of genuine dispute was abuse of process - proceedings dismissed

Dear Subscriber

1. Today’s video production discusses the case De Armas v Peters [2015] NSWSC 1050, which involved a res judicata objection.

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Benchmark Television
 
 
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Phillip Bambagiotti and Gina D’Amico on res judicata in Insurance Litigation.
Phillip Bambagiotti, Barrister and Gina D’Amico, Solicitor discuss res judicata in the context of the recent case of De Armas v Peters [2015] NSWSC 1050
Summaries With Link (Five Minute Read)
Lawrence v Gunner (No 3) [2016] NSWCA 18
Court of Appeal of New South Wales
Gleeson JA
Judgments and orders - three motions relating to judgments by Stevenson J - two motions dealt with by consent except for issue of costs - determination of third motion and costs issue - third motion sought various orders including variation of existing stay of orders, joinder of respondents, permission to issue subpoena for production and to strike out part of amended cross-claim - legitimate forensic purpose - whether material change in circumstances or new material - s83(1) Civil and Administrative Tribunal Act 2013 (NSW) - s99 Civil Procedure Act 2005 (NSW) - ss48, 75A(7), 75A(8) & 75A(9) Supreme Court Act 1970 (NSW) - rr7.3(1), 13.4, 42.1, 51.31(1), 51.37(1) & 51.53(1) Uniform Civil Procedure Rules 2005 (NSW) - held: costs orders made - notice of motion dismissed.
Lawrence
Duckworth v Water Corporation [No 3] [2016] WASC 24
Supreme Court of Western Australia
Mitchell J
Pleadings - costs - plaintiffs claimed in relation to Water Corporation’s drawdown $3 million Banker's Undertaking securing performance of non-party’s obligations under agreements to construct water headworks - plaintiffs claimed they were assigned non-party’s rights under agreements by his bankruptcy trustee - Court determined preliminary issues - whether plaintiffs should have further opportunity to amend writ and statement of claim following the determination of the preliminary issues - whether there should be order for non-party to pay defendant’s costs of action to date - held: plaintiffs granted further opportunity to apply to amend - extension of time granted - non-party to pay defendant’s costs - other orders sought by no-party refused.
Duckworth
Australian Maritime Systems Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [2016] WASC 52
Supreme Court of Western Australia
Mitchell J
Arbitration - parties entered agreement for design, supply and installation of navigation aids - parties executed supplemental agreement - plaintiff sought declaration supplemental agreement released it from obligations to defendant under agreement - defendant sought to stay action for plaintiff’s failure to comply with agreement’s dispute resolution clause - s8 Commercial Arbitration Act 2012 (WA) - O58 r10 Rules of the Supreme Court 1971 (WA) - art 8 UNCITRAL Model Law on International Commercial Arbitration - held: requirements of s8 satisfied - Court referred parties to arbitration - proceedings stayed until the process provided for in clause of agreement engaged and completed.
Australian Maritime Systems
JMT Builders Pty Ltd v. Ryan [2016] NTSC 6
Supreme Court of the Northern Territory
Master Luppino
Abuse of process - building contract - plaintiff sued defendant for breach of building contract - plaintiff’s solicitors advised writ had been filed pursuant to deed of settlement entered between parties which fully settled claim - deed did not permit plaintiff to sue on initial dispute - whether proceedings were abuse of process - held: categories of abuse of process not closed - deed provided for dispute’s final resolution - proceedings were an ‘enforcement backup’ in event of default by defendants - there was no genuine dispute - issuing proceedings in absence of genuine dispute was abuse of process - proceedings were abuse of process.
JMT