Daily Construction: Tuesday, 27 October 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)
Frewin v Adecco Industrial Pty Ltd (NSWSC) - contract - determination of cross-claim - third defendant did not establish entitlement to be indemnified in regard to plaintiff’s claim pursuant to agreement with first defendant
HWG Holdings Pty Ltd v Fairlie Court Pty Ltd (NSWSC) - corporations - buy-back agreement - common mistake - deed of acknowledgment - rectification of share register under s175(1) Corporations Act 2001 (Cth) granted
Ryan v Worthington (QCA) - building contract - administrative law - construction of clauses governing builder’s entitlement to extension of time and right to terminate contract under s90 Domestic Building Contracts Act 2000 (Qld) - appeal dismissed - matter remitted for determination
Corica v Smith (WASCA) - property (seizure and sale) order (PSSO) - no special circumstances to suspend enforcement of judgment - PSSO not set aside - appeal dismissed
Summaries With Link (Five Minute Read)
Frewin v Adecco Industrial Pty Ltd [2015] NSWSC 1568
Supreme Court of New South Wales
Adamson J
Contract - plaintiff sued first defendant in the Supreme Court of the Australian Capital Territory - proceedings transferred to Supreme Court of New South Wales - plaintiff joined second and third defendants - second and third defendants cross-claimed against first defendant claiming an indemnity pursuant to an agreement between third defendant and first defendant - plaintiff’s claim settled - remaining matter for determination was cross-claim - whether contract of indemnity remained in force and binding on first defendant after expiry of agreement - construction of agreement - post-expiry conduct - whether new agreement executed - held: third defendant did not establish any entitlement on cross-claim against first defendant to be indemnified in respect of plaintiff’s claim
HWG Holdings Pty Ltd v Fairlie Court Pty Ltd [2015] VSC 519
Supreme Court of Victoria
Sifris J
Corporations - first and second plaintiffs sought order pursuant to s175(1) Corporations Act 2001 (Cth) that share register of first plaintiff be rectified to restore shareholding of second plaintiff - no defendants to application - parties discovered they had entered into buy-back agreement under common mistake about assumption of law on which arrangement based - parties executed deed acknowledging they entered agreement under common mistake and declaring it void (deed of acknowledgment) - plaintiff sought to rectify first plaintiff’s register of members to reflect that agreement was void by recording that second plaintiff had held additional number of shares in first plaintiff since time those shares first acquired by second plaintiff - held: register to be rectified to accord with clear intention expressed by parties in deed of acknowledgment - buy-back agreement was void ab initio - parties had made very serious mistake - no misrepresentation or misleading conduct - no-one at fault - plaintiffs entitled to relief sought.
Ryan v Worthington [2015] QCA 201
Court of Appeal of Queensland
Morrison & Phillipides JJA; Flanagan J
Building contract - administrative law - respondent commenced proceedings against applicant in Queensland Civil and Administrative Tribunal to recover amount outstanding from final payment claim under building contract - QCAT found in respondent’s favour - Appeal Tribunal allowed appeal and remitted matter for determination according to law - applicant challenged Appeal Tribunal’s decision - s90 Domestic Building Contracts Act 2000 (Qld) - ss146 & 150 Queensland Civil and Administrative Tribunal Act 2009 (Qld) - held: applicant succeeded in challenge to Appeal Tribunal’s approach to construction of clause governing builder’s entitlement to extension of time but failed in challenge to clause concerning owner’s right to terminate contract under s90 and the relief granted by Appeal Tribunal - appropriate order was that made by the Appeal Tribunal - matter should be remitted to Member for determination according to law - appeal dismissed.
Corica v Smith [2015] WASCA 209
Court of Appeal of Western Australia
Newnes & Murphy JJA
Property (seizure and sale) order (PSSO) - respondents obtained property (seizure and sale) order pursuant to s59 Civil Judgments Enforcement Act 2004 (WA) to enforce costs judgment against appellants - appellants sought suspension of enforcement of costs judgment and for PSSO to be set aside - acting master found no 'special circumstances' within meaning of s15 made out for suspending enforcement of judgment and rejected argument that State did not have power to enact legislation - appellants appealed - appellants contended master had no jurisdiction to deal with appellants' application to transfer proceedings in Magistrates Court to Supreme Court and, that he was biased and denied appellants procedural fairness - held: grounds of appeal not made out - acting master’s decision plainly correct - appeal dismissed.