Goninan & Co Ltd v Direct Engineering Services Pty Ltd [No 2] [2008] WASCA 112

Summary

In this decision the Western Australian Court of Appeal interpreted the insurance provisions in a construction contract to determine whether the head contractor was obliged to insure its sub-contractor. The terms of the construction contract were ambiguous and the court provided a useful explanation of its approach to construction of the contract terms. The court also considered the circumstances in which it would be appropriate to take into account clauses deleted from a standard form during drafting.

The court ruled that it was able to take into account deleted standard form clauses and found that on the terms of the construction contract, the head contractor was under an obligation to insure its sub-contractor.

Case note

Authors
Julie Wright, Partner
Andrew Latto, Legal Adviser (not Australia qualified)

Draft your clauses carefully: a reminder from the WA Court of Appeal

A recent decision of the Western Australian Court of Appeal (Paharpur v Paramount [2008] WASCA 110) highlights the need to pay careful attention to dispute clause drafting, particularly in cases where third parties are involved or ancillary agreements would unintentionally escape the dispute mechanisms agreed in a principal contract.

Case note

Authors
Peter Megens, Partner
Peter Hillerstrom, Solicitor

Katherine Pty Limited v The CCD Group Pty Ltd [2008] NSWSC 131

This case considers whether judgments recovered pursuant to adjudication certificates from three adjudication determinations made pursuant to the Building and Construction Industry Security of Payment Act 1999 (NSW) (SoP Act) could be stayed if enforcement would include utilising the mechanisms of the SoP Act to enforce a penalty.

Case note

Authors
Geoff Wood, Partner
Jane Ward, Law Clerk

South East Fibre Exports Pty Limited v WGE Pty Limited [2008] 231

Summary

In this case the Supreme Court of New South Wales considers the circumstances in which leave to appeal from an arbitral award may be granted. In particular, the Supreme Court considers the application of section 38(2) of the Commercial Arbitration Act 1984 (NSW) (the Act) which restricts appeals from awards to questions of law. In this decision, the Supreme Court distinguishes between questions of fact and questions of law in a dispute between a contractor (respondent) and the principal (applicant) for the upgrading and modification of the principal’s ship loading facility in circumstances where the principal has taken certain works out of the hands of the contractor.

Case note

Authors
Geoff Wood, Partner
Tabitha Winton, Solicitor
Colin Wong, Law Clerk

Principal contractors not to defer judgements about site safety risks to subcontractors

Backman J in the Industrial Court of New South Wales handed down his decision in the case of Inspector Stephen Cooper v Rail Infrastructure Corporation [2008] NSWIRComm 92 which shows that contractors:

• cannot defer judgements about site safety risks to their subcontractors,
• can be held liable for the safety of not only their own employees, but the employees of their subcontractors,
• must discharge their safety obligations by implementing adequate measures and controls with respect to safety risks. Simply warning their subcontractors of the safety risks or leaving the relevant control measure in the discretion of the site supervisor (or the more experienced subcontractor) is not enough to discharge those obligations, and
• by entering a guilty plea, may be entitled to a discount in penalty in the range of 10-25%, but this could be more or less depending on the circumstances of each case.

Case note

Authors
Andrew Chew, Special Counsel
Franco Aversa, Solicitor