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MTECC NEWS

MTECC publishes a fortnightly newsletter, with a short article by one of our members, together with recent news. Please add your details below so we can add you to our distribution list. The latest MTECC news and previous versions are set out below.

MTECC publishes a fortnightly newsletter, with a short article by one of our members, together with recent news. Please add your details below so we can add you to our distribution list. The latest MTECC news and previous versions are set out below.

Current and previous newsletters

MTECC News 22.06 ||| Evidence, inferences and appeals – NSWCA overturns findings of fact in The Owners – Strata Plan 87265 v Saaib [2022] NSWCA 63

In The Owners – Strata Plan 87265 v Saaib [2022] NSWCA 63 the New South Wales Court of Appeal had to grapple with the inferences that could be drawn from circumstantial evidence, the use of “tendency evidence” and the failure of the respondent Mr Saaib, a licensed builder, to call his nephew, Mr Zaatini, an alleged

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MTECC News 22.04 ||| Commerciality and rectification – Victorian Supreme Court rectifies contract to avoid commercial absurdity in Melbourne Property Group Investments (MPGI) Pty Ltd as trustee for the MPGI Trust v. Knight 43 Martin Street Pty Ltd [2022] VSC 41

Successful rectification claims include those where the proposed rectification aligns with the commercial reality of the transaction and contemporaneous written records of associated negotiations.  Facts The plaintiff (“MPGI”) and the defendant (“Knight 43”) were involved in the development of two luxury apartments.  MPGI was an investment vehicle established by Mr Pelchen. Knight 43’s sole director

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MTECC NEWS 22.04 ||| Taking evidence from overseas by video hearing

Over the last two years, we have moved to take evidence and conduct hearings by video-conferencing platforms as a consequence of the COVID-19 pandemic. Anecdotally, it seems many participants to litigation have simply moved across to video-conferencing and allowed their witnesses to give evidence other than in the jurisdiction of the court or tribunal. Two

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MTECC NEWS 22.03 ||| The art of misleading marketing – the Federal Court finds an artist’s impression of an off the plan apartment was misleading in Ripani v Century Legend Pty Ltd [2022] FCA 242

Significance: The case raised a number of issues of general interest and application to commercial property professionals (including agents and architects), developers, purchasers and lenders: The actionable potential of marketing materials; The significance of a notation that the depiction was an artist’s impression; The ineffectiveness of a disclaimer; The ineffectiveness of an exclusion clause in the

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MTECC NEWS 22.02 ||| In what circumstances will a freezing order be granted under the Building and Construction Industry Security of Payment Act 2002 (Vic)?

  In ex parte Argyle Building Services Pty Ltd v Dalamex Pty Ltd trading as RK Basement & Structure Solutions & Anor (Unreported, Supreme Court of Victoria, Delany J 10 January 2022) RK obtained an Adjudication Determination for $431,266.80 immediately due for payment. RK obtained judgement in the County Court for $440,746.29 pursuant to s 28R of the Building and Construction Industry

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MTECC News 22.01 ||| The two Ps of a liquidated damages defence: Prevention and Penalties – Growthbuilt Pty Ltd v Modern Touch Marble & Granite Pty Ltd [2021] NSWSC 290

This matter concerned a builder and subcontractor that entered subcontracts in which the subcontractor was to supply stone to four building projects. The builder served a termination notice on the subcontractor alleging failure to complete by the dates for completion. The notice stated the builder would seek liquidated damages for delay at $3,500 per day

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