Federal Court of Australia

The decision arising out of the Federal Court of Australia (Liberty Mutual Insurance Company Australian Branch t/as Liberty Speciality Markets v Icon Co (NSW) Pty Ltd) reiterates the importance of providing due consideration to terminology used in construction insurance policies to ensure that the cover sought is captured. When interpreting the terms of market specific insurance policies they are to be interpreted as a whole and to bring about a reasonable and commercial result.

New South Wales

The decisions arising out of New South Wales highlight that:

• a defendant cannot simply identify third parties who may be concurrent wrongdoers, nor point to a class of persons one or more of whom may be concurrent wrongdoers, in order for a claim to be apportionable. Rather, a defendant's pleadings must identify the concurrent wrongdoers (including disclosing the relevant cause of action and damage) with the same specificity required of an initiating process in order for the claim to be apportionable; and
• once the NSW Civil and Administrative Tribunal (NCAT) has jurisdiction under section 74(3) of the Fair Trading Act 1987 (NSW) to award damages for contravention of section 18 of the Australian Consumer Law (NSW), it may award such sum, and make such ancillary orders, as it thinks fit. The plain meaning of these words is not restricted. This jurisdiction is conferred on NCAT if the matter concerning section 18 of the ACL arises in connection with another matter within NCAT's jurisdiction which is the subject of proceedings in NCAT.

Queensland

The decisions in the Queensland courts are a reminder that:

• a court has demonstrated that it is prepared to read into a domestic building contract an implied duty of good faith and fair dealing;
• the QBSA / QBCC will be prevented from recovering payments made under the statutory insurance scheme provided by the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) where the builder in question has a genuine defence to the claim made against it;
• where a 'joint venturer' is defined as the composite of an individual and their corporate entity, the joint venturer breaches its obligations under a joint venture agreement when those obligations are breached by one of its constituent parts; and
• a claim made under the statutory insurance scheme, established under the QBCC Act, will be reduced by the amount of any 'prepayments' made to a contractor. Under the scheme, there is a clear distinction between 'prepayments', which are monies paid before work is undertaken, and monies which are 'due', which is payment for work that has actually been carried out.

Victoria

The decision in Victoria affirms that claims for breach of the implied warranty under section 8(a) of the Domestic Building Contracts Act 1995 (Vic) to carry works out in a 'proper and workmanlike manner and in accordance with the plans and specifications set out in the contract' are not apportionable. While previous case law appeared to suggest that claims for breach of the warranty under section 8(a) may be apportionable, this decision clarifies that only claims arising from the breach of subsection 8(d) (a warranty that 'the work will be carried out with reasonable care and skill') may be apportionable.

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