Daily Construction: Tuesday, 28 April 2015 View in browser

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

Daily Construction

Executive Summary (One Minute Read)
Metgasco Ltd v Minister for Resources and Energy (NSWSC) - judicial review - unlawful suspension of operations at gas exploration well - decisions quashed
Victorian Workcover Authority v Stoddart (Vic) Pty Ltd (VSC) - accident compensation - third party breached duty of care to injured worker - Authority entitled to indemnity
Adelaide City Council v Sarris (SASCFC) - environment and planning - area of balcony included in calculation of building floor area - appeal dismissed
Delmere Holdings Pty Ltd v Green (WASC) - security of payments - construction contract - adjudication decision quashed
Summaries With Link (Five Minute Read)
Metgasco Ltd v Minister for Resources and Energy [2015] NSWSC 453
Supreme Court of New South Wales
Button J
Judicial review - plaintiff sought judicial review of decision of Minister by delegate to suspend operations approved under Petroleum Exploration License at gas exploration well pursuant to s22(3A) Petroleum (Onshore) Act 1991 (NSW) - construction of Act and instruments created pursuant to Act - lawfulness of delegate’s decisions - ss3, 22, 22(3A), 22(3A)(b), 22(3B)(b), 22(6), 22(6)(a), 22(6)(b), 22(6)(c), 22(7) & 136A - held: decision to suspend (the first decision) was invalid because it was not preceded by compliance with procedural fairness regime under Act - decision to confirm the first decision was invalid because it purported to confirm a decision that was itself invalid - second decision was also separately invalid on various grounds - decisions quashed.
Victorian Workcover Authority v Stoddart (Vic) Pty Ltd [2015] VSC 149
Supreme Court of Victoria
J Forrest J
Accident compensation - worker injured when he fell from roof of house under construction - worker settled his claim against employer and roofing company - determination of recovery claim under s138 Accident Compensation Act 1985 (Vic) by Victorian WorkCover Authority (VWA) against roofing company - VWA held roofing company partly responsible injures and payment of compensation - VWA conceded employer must also carry a share of responsibility for injuries - whether roofing company owed duty of care to worker and if so, whether it breached duty - percentage responsibility which roofing company should bear as required by s138(3) if it breached duty - ss49 & 51 Wrongs Act 1958 (Vic) - held: roofing company owed common law duty of care to worker - roofing company breached its duty of care - risk of injury was patently foreseeable - roofing company’s failure to take precaution was cause of worker’s injuries - VWA entitled to be indemnified by roofing company in relation to payments of compensation by it for worker’s injuries - Factor X of formula prescribed by s138(3) was 50 per cent.
Adelaide City Council v Sarris [2015] SASCFC 48
Full Court of the Supreme Court of South Australia
Kourakis, Gray & Nicholson JJ
Environment and planning - respondents lived in adjoining - second respondent sought development approval for renovation and extension including construction of second floor rear facing balcony - Corporation of City of Adelaide excluded balcony from  calculation of plot ratio and approved second respondent’s application - first respondent sought to review the categorisation of development - Court decided in favour of first respondent - Council appealed - ss35, 38 & 86(1) Development Act 1993 (SA) - held : trial judge’s decision open on evidence and within area of special expertise of Environment, Resources and Development Court - appeal dismissed.
Delmere Holdings Pty Ltd v Green [2015] WASC 148
Supreme Court of Western Australia
K Martin J
Security of payments - construction contract - applicant and other party entered subcontract accepted to be a “construction contract” under Construction Contracts Act 2004 - applicant sought to quash determination of adjudication dispute by respondent adjudicator under the Act which required applicant to pay other party amount - applicant contended adjudicator never jurisdictionally enabled to proceed with adjudication as there was no  relevant ’payment claim’ issued by other party - ss3, 6, 25, 26 & 31 - held: adjudicator failed to recognise relevance of material put before him by applicant and to appreciate significance of material under Act - adjudicator wrongly proceeded to determine application on incorrect and misconceived basis that payment claim existed and payment dispute existed - decision quashed.