Daily Construction: Thursday, 28 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)
Pola v Australia and New Zealand Banking Group Ltd (NSWCA) - real property - mortgages - breach of mortgagee’s duty under s85(1) Property Law Act 1974 (NSW) - appeal and cross-appeal dismissed
Sunshine Coast Regional Council v Parklands Blue Metal Pty Ltd (QCA) - environment and planning - successful appeal by company to Planning and Environment Court against refusal of development permits - Council’s appeal dismissed
Summaries With Link (Five Minute Read)
Pola v Australia and New Zealand Banking Group Ltd [2015] NSWCA 146
Court of Appeal of New South Wales
Bathurst & Bergin CJJ; Young AJA
Real property - mortgages - appellants borrowed amount from bank secured by mortgages over properties - appellant defaulted -  bank took possession of properties - bank exercised power of sale - property sold - bank sued appellant for balance of debt - appellant contended bank failed to discharge its duty as mortgagee to “take reasonable care to ensure that the property is sold at market value” under s85 Property Law Act 1974 (Qld) -  trial judge found bank breached its duty in respect of advertising of property but otherwise dismissed cross-claim - parties appealed - held: trial judge correct to find bank breached duty under s85 by failing to refer to valuable water allocation in advertisements for sale - trial judge followed orthodox and appropriate process of assessing expert evidence in respect of valuation of market value - reduction of judgment in bank’s favour without error - appeal and cross-appeal dismissed.
Sunshine Coast Regional Council v Parklands Blue Metal Pty Ltd [2015] QCA 91
Court of Appeal of Queensland
M McMurdo P, Gotterson JA & Dalton J
Environment and planning - appellant Council refused development application made by respondent for hard rock quarry - respondent successfully appealed to Planning and Environment Court - primary judge adjourned matter so that conditions could be formulated and attached to development permits - Council sought leave to appeal  under s498 Sustainable Planning Act 2009 - construction and application of planning instruments - whether erroneous consideration of irrelevant issues and assertions or improper use of joint expert reports - whether failure to deal with aviation issues - whether erroneous failure to refuse application in absence of respondent’s commitment to upgrade of haul route - assessment of blasting impacts - assessment of needs - whether failure to provide adequate reasons - held: Council’s contentions not made out - Council did not demonstrate any error of law by primary judge - leave to appeal refused.