Recent Cases

Rialto Sports Pty Limited v Cancer Care Associates Pty Limited [2022] NSWCA 146 (10 August 2022) (Bell CJ, Macfarlan and Gleeson JJA)


Catchwords:


CONTRACTS – construction – whether vendor’s covenant to construct building in a proper and workmanlike manner was only a “best endeavours” obligation – whether vendor is liable under covenant for incomplete or defective work by builder – where covenant did not merely require compliance with physical description of the building according to approved plans

CONTRACTS – construction – whether good workmanship covenant merged on completion – absence of express statement that the covenant survived completion – primary obligation to convey title merged upon completion – nature of subject matter of secondary obligation as to good workmanship – where performance of covenant could not be investigated prior to completion – where occupation certificate is not determinative of performance

CONTRACTS – damages – whether lot owners can claim damages in respect of proportionate share of cost to rectify common property – where damage to common property is infringement of lot owner’s proprietary interest in common property as equitable tenant in common – whether lot owners can recover costs of rectification where works have not been undertaken

CONTRACTS – assignment – whether assignment of chose in action was effective – whether assignee had genuine, substantial pre-existing commercial interest in the suit – whether claim is time barred where plaintiff substituted – where effect of substitution order under UCPR, r 6.32 placed substituted plaintiff in same position as party replaced

APPEAL – orders on appeal – building case – whether appropriate relief is remitter for retrial or reference out to referee – where reference out is the most efficient and timely option