Daily Banking: Monday, 27 July 2015 View in browser
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AR Conolly Company Lawyers.
A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Daily Banking

Executive Summary (One Minute Read)
Aspect Contracts (Asbestos) Limited (Respondent) v Higgins Construction Plc (Appellant) (UKSC) - construction contract - implied term - right to recover payment - restitution - appeal dismissed
Bob Jane Corporation Pty Ltd v ACN 149 801 141 Pty Ltd (FCA) - contempt - failure to pay fines - order directing Registrar to apply for punishment of continuing contempt
Boriop Pty Ltd v Moussi (VSC) - corporations - statutory demand - genuine dispute not established - statutory demand not set aside
Gambaro Pty Ltd v Rohrig (Qld) Pty Ltd (QSC) - summary judgment - pleadings - security of payments - restitution - applications dismissed
Orchid Avenue Pty Ltd v Parniczky (QSC) - contract for sale - non-performance of contract - judgment for vendor - damages
Summaries With Link (Five Minute Read)
Aspect Contracts (Asbestos) Limited (Respondent) v Higgins Construction Plc (Appellant) [2015] UKSC 38
Supreme Court of the United Kingdom
Lord Mance, Lord Wilson, Lord Sumption, Lord Reed & Lord Toulson
Construction contract - limitations - respondent contracted with building contractor to carry out asbestos survey and report on blocks of maisonettes which building contractor was considering redeveloping - during redevelopment building contractor allegedly found asbestos containing materials not identified in report - adjudicator concluded respondent in breach of contractual and tortious duties causing loss to building contractor - parties did not agree to treat adjudicator’s decision as final - building contractor did not commence proceedings and limitation period expired - respondent commenced proceedings to recover amount it paid to building contractor pursuant to adjudication - respondent contended no sum was due on examination of merits of original dispute - building contractor counterclaimed for balance of claim and interest - High Court rejected respondent’s claim on basis there was no implied term for repayment or entitlement to restitution after expiry of limitation period in 2010 or 2011 - Court of Appeal found there was implied term and allowed appeal - effect of adjudication pursuant to provisions implied into construction contract under s108(5) Housing Grants, Construction and Regeneration Act 1996, read Scheme for Construction Contracts (England and Wales) Regulations 1998 (SI 1998 No 649) - held: it was an implied contractual term that respondent would have directly enforceable right to recover payment if on final determination on merits of original dispute, sums shown not to have been due to building contractor - repayment could also be claimed by way of restitution - building contractor was time-barred from pursuing its counterclaim for the balance of its original claim - appeal dismissed
Bob Jane Corporation Pty Ltd v ACN 149 801 141 Pty Ltd [2015] FCA 743
Federal Court of Australia
Besanko J
Contempt - applicant claimed respondents failed to comply with Court’s orders in proceedings - applicant brought contempt proceedings against first, second, fourth, sixth and seventh respondents by interlocutory application and statement of charge - Court found respondents guilty of contempt and ordered payment of fines - failure to pay fines - applicant sought order that Registrar make application for punishment of continuing contempt - r42.16 Federal Court Rules 2011 (Cth) - held: failure to pay fine may constitute contempt of court - most appropriate enforcement procedure was that sought by applicant - Court ‘may’ make an order where it is ‘alleged’ that person was guilty of contempt of Court - no discretionary reasons for not making an order - plainly sufficient material to justify making of order sought.
Gambaro Pty Ltd v Rohrig (Qld) Pty Ltd [2015] QSC 170
Supreme Court of Queensland
Atkinson J
Summary judgment - pleadings - security of payments - restitution - plaintiff and defendant were parties to construction contract which required defendant to carry out construction work for plaintiff - defendant made payment claim under Building and Construction Industry Payments Act 2004 (Qld) (BCIPA) - plaintiff paid payment claim in part - plaintiff sought declaration it was not liable for amount it paid and order that defendant make restitution of amount - defendant sought to strike out statement of claim - plaintiff sought summary judgment - ss99 & 100 BCIPA - s32 Building and Construction Industry Security of Payment Act 1999 (NSW) - held: plaintiff’s claims either admitted, not admitted for reasons set out in defence, or denied by defendant - there were issues which were the subject of factual and legal dispute between parties which could only be determined on trial - defendant’s application to strike out paragraphs or subparagraphs of statement of claim concerned issues which needed to be determined at trial - applications dismissed.
Boriop Pty Ltd v Moussi [2015] VSC 345s
Supreme Court of Victoria
Gardiner AsJ
Corporations - statutory demand - plaintiff sought to set aside statutory demand served on it by defendant for debt described in schedule as ‘moneys lent by the creditor to the company on 8 March 2012 and evidenced by a Loan Agreement deed dated 8 March 2012’ - plaintiff contended was genuine dispute in respect of demand - plaintiff asserted that debt subject of demand was by owed not by it, but by its director - ss459G & 459H Corporations Act 2001 (Cth) - held: plaintiff failed to discharge onus to establish dispute on which it relied was genuine - dispute alleged was spurious - proceeding dismissed.
Orchid Avenue Pty Ltd v Parniczky [2015] QSC 207
Supreme Court of Queensland
Burns J
Contract for sale - plaintiff agreed to sell apartment “off the plan” to first defendant trustee for trust - settlement was agreed to occur after registration of plan and creation of separate title - second defendant guaranteed payment, purchaser’s performance of contractual obligations and indemnified plaintiff for loss arising from breach - settlement became due - first defendant refused to complete - plaintiff terminated contract - deposit released - plaintiff claimed damages for non-performance of contract - held: issues raised in amended defence resolved in plaintiff’s favour - plaintiff made out case for damages for non-performance of contract - counterclaim dismissed - judgment for plaintiff.