Colonial Range Pty Ltd v CES-Queen (Vic) Pty Ltd - [2016] VSC 494

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE

Not Restricted

COMMERCIAL COURT
INSURANCE LIST

S CI 2016 2742

COLONIAL RANGE PTY LTD (ACN 070 855 220)	Plaintiff
v
CES-QUEEN (VIC) PTY LTD (ACN 153 232 663) and DELTA PTY LTD (ACN 007 069 794)	Defendants

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JUDGE:	DIGBY J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 July 2016
DATE OF JUDGMENT:	5 August 2016
CASE MAY BE CITED AS:	Colonial Range Pty Ltd v CES-Queen (Vic) Pty Ltd & anor
MEDIUM NEUTRAL CITATION:	[2016] VSC 494

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PRACTICE AND PROCEDURE – Application for declaratory relief – Application for injunctive relief – Whether Contract of Insurance is a contract of insurance in accordance with s 93 of the Building Act 1993 (Vic) – Whether Contract of Insurance together with Contract Endorsement is a contract of insurance in accordance with s 93 of the Building Act 1993 (Vic) – You v Thomas [2014] VSC 255, considered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Pizer QC with Mr N Wood	Norton Gledhill
For the First Defendant	Mr M Roberts QC with Ms C Symons	Moray & Agnew
For the Second Defendant	Mr B Reid	Thomson Geer

HIS HONOUR:

This proceeding

By this proceeding the plaintiff seeks declarations that the defendants have failed to effect the insurances provided for by s 93 of the Building Act 1993 (Vic) (‘the Act’) which are required to be in place before an owner commences what are defined as protection works preparatory to the commencement of subsequent building works, in this instance to be undertaken in Melbourne’s central business district. The plaintiff also seeks to enjoin the owner from commencing such protection works if it is established that the required insurances are not in place.

Background

CES-Queen (Vic) Pty Ltd (‘CES-Queen’), the first defendant, is the registered proprietor of 150 Queen Street, Melbourne. The existing building on 150 Queen Street is an office building comprising 13 storeys with a basement car park. CES-Queen intends to demolish the existing building and in its place build a 71-storey residential tower to be known as ‘Tower Melbourne’. CES-Queen has retained Delta Pty Ltd (‘Delta’), the second defendant, to perform the demolition work.

Colonial Range Pty Ltd (‘Colonial’), the plaintiff, is the registered proprietor of two properties adjoining 150 Queen Street, being the properties at 140 Queen Street and 21-27 McKillop Street. These properties are, for the purposes of the Act and in particular, Part 7, understood to be ‘adjoining properties’ and Colonial, an ‘adjoining owner’.

Under the Act, CES-Queen is an ‘owner’ and has certain obligations, including under Part 7 of the Act, which prescribes a regime that is to apply in circumstances where ‘protection work’ is required to be carried out in respect of an ‘adjoining property’.

The Building Surveyor appointed under the Act in respect of the proposed building works to take place at 150 Queen Street, Mr Ari Akritidis, issued a Protection Works Determination, pursuant to s 87 of the Act, on 4 May 2015.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] VSC 494
Decision Date: 5 August 2016

CaseChat Overview and Summary

Colonial Range Pty Ltd applied to the Supreme Court of Victoria for declaratory and injunctive relief in relation to a building contract. CES-Queen (Vic) Pty Ltd was the respondent in the action. The dispute centred around the validity of a contract of insurance that was intended to cover the building works undertaken by CES-Queen. Specifically, the applicant argued that the contract of insurance, together with a contract endorsement, did not comply with section 93 of the Building Act 1993 (Vic). The legal issues for the court to decide were whether the contract of insurance on its own was sufficient and whether the contract of insurance together with the endorsement complied with the statutory requirements.

The court considered the statutory provisions and previous case law, specifically You v Thomas [2014] VSC 255, to determine the requirements of a valid contract of insurance. The court held that the contract of insurance, when considered alone, did not meet the statutory requirements as it did not expressly state that the insurer would not be prejudiced by the involvement of the insured in the design, preparation, or supervision of the building works. However, when the contract of insurance was read together with the endorsement, the court found that the endorsement effectively incorporated the necessary statutory language, thereby making the combined contract of insurance and endorsement compliant with the Building Act. The court granted the declaratory relief sought by the applicant, finding that the combined contract was valid, and declined to make an order for injunctive relief.

The final orders of the court were that the contract of insurance, when read in conjunction with the endorsement, was a valid contract of insurance in accordance with section 93 of the Building Act 1993 (Vic). The court also ordered that no further injunctive relief be granted.

Orders