Downer EDI Rail Pty Ltd v John Holland Pty Ltd; John Holland Pty Ltd v QBE Insurance (Australia) Ltd (No 5); Kellogg Brown & Root Pty Ltd v John Holland Pty Ltd (No 4) [2018] NSWSC 326

Downer EDI Rail Pty Ltd v John Holland Pty Ltd; John Holland Pty Ltd v QBE Insurance (Australia) Ltd (No 5); Kellogg Brown & Root Pty Ltd v John Holland Pty Ltd (No 4) [2018] NSWSC 326

The plaintiffs failed to prove that the detention system had failed or would fail during its design life; evidence showed sufficient compressive strength and no systemic failure. Collapse of the carpark arose from third party excavation, not design or installation of the cells. Contractual 'loss' or breach by defendants was not made out on the evidence or pleadings. Claims for misleading or deceptive conduct and for insurance response also failed as no relevant causation or losses established. Proceedings dismissed.

Parties
First Plaintiff: Downer EDI Rail Pty Ltd; Second Plaintiff: EDI Rail PPP Maintenance Pty Ltd; First Defendant/cross Claimant: John Holland Pty Ltd; Second Defendant: Kellogg Brown & Root Pty Ltd; Third Defendant: Atlantis Corporation Pty Ltd; Fourth Defendant/cross Defendant: QBE Insurance (Australia) Limited; Plaintiff (in 2017/69950): Kellogg Brown & Root Pty Ltd; Defendant (in 2017/69950): John Holland Pty Ltd
Jurisdiction
Australia
Judgment Date
20 March 2018
Procedural Posture
Principal Judgment / Final Judgment; Proceedings Dismissed
Outcome
Proceedings dismissed
Legal Topics
Remedies – Damages – Proof of Loss or Damage, Contract Interpretation, Misleading and Deceptive Conduct, Construction of Liability Insurance, Measure of Damages, Hierarchy and Allocation of Risk in Construction Contracts
Contracts Civil Procedure Consumer Law Insurance Remedies – Damages – Proof of Loss or Damage Contract Interpretation Misleading and Deceptive Conduct Construction of Liability Insurance +2 more

Case Brief

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Parties

Downer EDI Rail Pty Ltd

First Plaintiff

EDI Rail PPP Maintenance Pty Ltd

Second Plaintiff

John Holland Pty Ltd

First Defendant/cross Claimant

Kellogg Brown & Root Pty Ltd

Second Defendant

Atlantis Corporation Pty Ltd

Third Defendant

QBE Insurance (Australia) Limited

Fourth Defendant/cross Defendant

Kellogg Brown & Root Pty Ltd

Plaintiff (in 2017/69950)

John Holland Pty Ltd

Defendant (in 2017/69950)

Procedural Posture

Principal Judgment / Final Judgment; Proceedings Dismissed

Legal Issues

  1. 1 Whether the detention system failed or will fail during its design life
  2. 2 Whether any 'loss' occurred under the relevant contract
  3. 3 Whether detention system requires remediation or replacement

Ratio Decidendi

The plaintiffs failed to prove that the detention system had failed or would fail during its design life; evidence showed sufficient compressive strength and no systemic failure. Collapse of the carpark arose from third party excavation, not design or installation of the cells. Contractual 'loss' or breach by defendants was not made out on the evidence or pleadings. Claims for misleading or deceptive conduct and for insurance response also failed as no relevant causation or losses established. Proceedings dismissed.

Court Disposition

Proceedings dismissed

Orders

  • All proceedings dismissed; parties to be heard on costs.