Allianz
Australia Insurance Ltd v Moo Ok Park (NSWSC) - motor accidents
compensation - past economic loss - inadequate reasons – assessor’s decision
quashed (I G) |
Bonifacio
v NSW Trustee and Guardian acting as executor of the Estate of the late Woitala
(NSWSC)
– limitations – causes of action arising from fraudulent transfer of property
statute-barred (I B) |
Falkingham
v Peninsula Kingswood Country Gold Club (VSCA) – costs –
unsuccessful appellant – no order as to costs of appeal, notice of contention
and appellants’ summonses (I B C) |
Majet
v Goggin & Miller as Trustees of the Bankrupt Estate of Brett-Hall (QSC)
– contract – conveyancing – bankruptcy – sellers entitled to return of deposit
under contract for sale of land which did not complete (I B) |
Bajaj
v Beachtown Investments Pty Ltd (WASCA) – employment
contract - scope of services – termination – onus – appeal dismissed (I B) |
Swick
Nominees Pty Ltd v Leroi International Inc [No 2] (WASCA)
– product liability – multiple failures of air compressor unit – no breach of
duty by manufacturer (I B) |
Fogarty
v CGU Insurance Ltd (ACTSC) – insurance contact – no breach by
insurer of obligation to repair or duty of utmost good faith (I B C) |
Summaries With Link (Five Minute Read) |
Allianz
Australia Insurance v Moo Ok Park
[2015] NSWSC 122
Supreme Court of New South Wales
Harrison AsJ
Motor accidents compensation - past
economic loss - claimant injured in motor vehicle accident - Allianz was
compulsory third party insurer for driver at fault - liability not in issue - Allianz
sought to set aside decision of claims assessor - insurer contended assessor’s
reasoning for awarding past economic loss was erroneous - held: it was not
clear how assessor arrived at weekly amounts - reasoning process that led assessor
to make conclusions had not been set out as required by clause 18.4.3 Claims Assessment Guidelines - assessor failed
to provide proper reasons - decision
invalid and quashed
Allianz
Australia Insurance (I G)
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Bonifacio
v NSW Trustee and Guardian acting as executor of the Estate of the late Woitala [2015] NSWSC 124
Supreme Court of New South Wales
Darke J
Limitation of actions - plaintiffs
sought declaration executor of deceased’s estate held half interest in property
on constructive trust for them - plaintiffs alleged constructive trust arose in
1995 when deceased fraudulently registered transfer to himself of plaintiffs’
interest in property - executor accepted transfer was fraudulent, but claimed causes
of action statute-barred - common ground that plaintiffs became aware of fraud at
least by February 1998 - proceedings not commenced until December 2013 – when
cause of action accrued – adverse possession - held: deceased in adverse
possession of property at least from the end of 1998 - cause of action to
recover land had accrued by end of 1998 - plaintiffs had discovered fraud by
that date - twelve year limitation period in s27(2) would have expired by end
of 2010 - in relation to cause of action to recover trust property, limitation
period in s47(1) also commenced by end of 1998 and expired by end of 2010 -
actions statute-barred.
Bonifacio (I B)
|
Falkingham
v Peninsula Kingswood Country Gold Club
[2015] VSCA 30
Court of Appeal of Victoria
Costs – Court dismissed appeal - appellant
sought that respondent indemnify him for costs of appeal and proceeding below,
or there be no order for costs in relation to notice of appeal, and that
respondent pay his costs of notice of contention, on which respondent was
unsuccessful - respondent submitted costs should follow the event - success on
separate issues – whether proceeding akin to derivative proceeding - held: in
all circumstances, costs of appeal as between parties should be dealt with in same
way as trail judge dealt with costs of proceeding at first instance - no order
as to parties’ costs of appeal, notice
of contention, and appellant’s summonses, save for order already made on
joinder application.
Falkingham (I B C)
|
Majet
v Goggin & Miller as Trustees of the Bankrupt Estate of Brett-Hall [2015] QSC 38
Supreme Court of Queensland
Henry J
Contract – conveyancing – bankruptcy - cross-applications
concerning fate of deposit paid under contract for sale of land that did not
complete – sellers sought order that the deposit be paid to their solicitor –
trustees of buyer’s bankrupt estate sought order that deposit be paid to their
solicitors - impact of bankruptcy trustee’s disclaimer pursuant to s133(2) Bankruptcy Act 1966 (Cth) on rights,
interests and liabilities of parties to contract – held: contract specifically
preserved to seller a right in respect of deposit - entitlement or right was
preserved by proviso to s133(2) so that it was unaffected by disclaimer –
sellers entitled to deposit pursuant to contract.
Majet (I B)
|
Bajaj
v Beachtown Investments Pty Ltd
[2015] WASCA 37
Court of Appeal of Western Australia
McLure P; Newnes & Mazza JJA
Employment contract – parties entered
employment contract – contract terminated – appellant sued former employer for
failure to pay amounts under contract – manner in which contract came to be
terminated - whether superannuation guarantee payable on travel time payments –
construction of contract - held: appellant not a casual employee – employment
contract terminable on 3 weeks’ notice – appellant did not discharge onus of
establishing employer did not give three weeks’ notice of termination - superannuation
guarantee not payable on travel allowance – appeal dismissed.
Bajaj (I B)
|
Swick
Nominees Pty Ltd v Leroi International Inc [No 2] [2015] WASCA 35
Court of Appeal of Western Australia
Buss & Murphy JJA; Edelman J
Negligence – product liability –
contract - action for damages against respondents in connection with
appellant’s purchase by of air compressor unit - trial judge dismissed claim
against manufacturer and allowed claim against supplier – appellant contended
primary judge erred in dismissing claim against manufacturer and in assessment
of quantum of damages – multiple failures of complex machinery - fitness for
purpose – pure economic loss – whether trial judge should have found manufacturer
breached duty of care - res ipsa loquitur
– proof of negligence - held: trial judge correct to find no breach of duty
by manufacturer – no issue of quantification of damages in relation to
manufacturer – no error in assessment of damages for breach of contract by
supplier – appeals dismissed.
Swick
Nominees Pty Ltd (I B)
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Fogarty
v CGU Insurance Ltd
[2015] ACTSC 44
Supreme Court of the Australian Capital
Territory
Murrell CJ
Insurance contract – insurer entered
contract with appellant to insure building and contents
against accidental loss or damage, including damage by fire – fire in kitchen
of premises – insurer accepted claim and elected to repair damage – dispute
arose in relation to damaged caused to three kitchen floorboards – insured sued
insurer under s57 Insurance Contracts Act
1984 (Cth) for cost of repairs - insured asserted insurer breached contract
by failing to repair damage – Magistrate entered judgment for insured – parties
appealed and cross-appealed – held: grounds of appeal and cross-appeal in
relation to specific performance allowed - Magistrate erred in finding insurer
breached contractual obligation to repair and in finding that insurer breached
its duty of utmost good faith – cross-appeal upheld – verdict for insurer
Fogarty (I B C)
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