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Insurance


Thursday, 15 January 2015

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Executive Summary (One Minute Read)
Bayon v Bayon (NSWCA) - motor accidents compensation - passenger accidentally shot on hunting expedition - driver not at fault - insurance policy did not respond (I)
Ramsay v BigTinCan Pty Ltd (NSWCA) - stay - conditional stay granted pending application for special leave to appeal to High Court (B)
Howley v Principal Healthcare Finance Pty Ltd (NSWCA) - workers compensation - refusal of extension of time to bring proceedings - appeal allowed (I)
Stankovic v Magee (NSWCA) - solicitor’s fees - arguable defence to claim - default judgment set aside (I)
Ausbal Pty Ltd v Grandsea Holdings Pty Ltd (VSC) - real property - easements - proposed works would substantially interfere with easement rights - declaration (I C)
Scott v State of Queensland (QSC) - limitation of actions - slip and fall at hospital - extension of time to commence action refused (I)
R v Macdessi; ex parte Walton (TASSC) - security of payments - denial of procedural fairness - adjudicator’s determination quashed (C)
Summaries With Link (Five Minute Read)
Bayon v Bayon [2014] NSWCA 434
Court of Appeal of New South Wales
Basten & Meagher JJA; Adamson J
Motor accidents compensation - appellant claimed damages for injuries sustained when he was accidentally shot in course of hunting expedition while he was passenger in front cabin of stationary utility - driver was insured under third party policy under Motor Accidents Compensation Act 1999 (NSW) (the Act) as the owner and driver - claim run on basis insurer liable under policy - trial judge dismissed claim on basis injury not caused by any fault of driver to which the statutory policy responded - ss3B, 5B, 5C, 5D, 5E Civil Liability Act 2002 (NSW) - held: appellant did not establish injury was caused by the fault of the driver within s3A(1) - statutory policy did not respond - appeal dismissed.
Bayon (I)
Ramsay v BigTinCan Pty Ltd [2014] NSWCA 452
Court of Appeal of New South Wales
Basten JA
Stay - first applicant was former director of respondent company - second applicant was consultant who worked for company and obtained shareholding in it - company obtained judgment ordering that applicants pay an amount to it - applicants sought a stay of judgment of Court pending application for leave to appeal to High Court - prospects of success - prejudice - delay - held: issue concerning test for causation in claim for equitable compensation reasonably arguable - in circumstances, particularly given short time before special leave application likely to be determined, appropriate to grant a stay on conditions - stay granted.
Ramsay (B)
Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447
Court of Appeal of New South Wales
McColl, Meagher & Barrett JJA
Workers compensation - applicant sought leave to appeal from refusal of application for leave pursuant to s151D Workers Compensation Act 1987 (NSW) to commence proceedings against employer more than three years after being injured in course of employment - justice of the case - adequacy of explanation - prejudice - s75 Evidence Act 1995 (NSW) - reliance on solicitor’s explanation for delay on basis of explanation and belief - held: applicant established primary judge’s discretion miscarried - explanation of delay sufficient - extension of time would not result in significant prejudice to respondent - appeal allowed.
Howley (I)
Stankovic v Magee [2014] NSWCA 439
Court of Appeal of New South Wales
Basten, Macfarlan & Gleeson JJA
Default judgment - solicitor obtained default judgment for recovery of legal fees incurred in acting on appellant’s behalf - appellant sought to set aside default judgment - held: evidence sufficient to identify arguable defence to claim for fees - evidence not manifestly untenable - contingency for payment had not been satisfied - agreement alleged by appellant was not in obvious conflict with costs agreement - no reason to regard proposed defence as otherwise than bona fide - appellant adduced sufficient evidence of arguable defence to claim which when coupled with accepted explanation for delay warranted default judgment being set aside.
Stankovic (I)
Ausbal Pty Ltd v Grandsea Holdings Pty Ltd [2014] VSC 625
Supreme Court of Victoria
Ferguson JA
Real property - easements - estoppel - company owned medical clinic - company wanted to expand medical clinic and proposed to redevelop property - company obtained council planning permit and building permit for works - service station opposite clinic - service station and clinic separated by roadway which was on part of the land owned by clinic owner - owner of service station had easement rights in respect of roadway which it alleged would be infringed if proposed works completed - company accepted there was easement but claimed entitlement was limited to entry only - real substantial interference - estoppel - held: Court satisfied service station owner, operators, and those frequenting service station entitled to pass and repass by foot or vehicle by means of the carriageway - proposed works would substantially interfere with easement rights - service station not estopped from enforcing its rights - relief limited to declaration - Court not persuaded that, in absence of injunction, clinic owner would proceed with works - declaration.
Ausbal Pty Ltd (I C)
Scott v State of Queensland [2014] QSC 306
Supreme Court of Queensland
A Wilson J
Limitation of actions - plaintiff alleged he was injured when he slipped and fell on an unsigned wet floor at hospital - plaintiff did not commence action for damages for injury before statutory limitation period of three years expired in 2011 - plaintiff claimed he was unaware of the extent of injury and that he had potentially actionable claim until he was provided with advice from neurosurgeon in 2013 - plaintiff sought extension of three year limitation period pursuant to s31 Limitation of Actions Act 1974 (Qld) - held: plaintiff had continuing quite serious and recurring symptoms from time of his fall to degree that meant any reasonable person would have taken steps to prosecute action within limitation period - circumstances insufficient to attract discretion extended to those who failed to prosecute action in time without error or fault - application dismissed.
Scott (I)
R v Macdessi; ex parte Walton [2014] TASSC 64
Supreme Court of Tasmania
Blow CJ
Security of payments - adjudicator made determination for purposes of Building and Construction Industry Security of Payment Act 2009 (Tas) relating to contract for construction of residence - proprietors sought to quash determination - held: adjudicator required by s25(2)(d) to consider adjudication response - due to error of law as to time limit for adjudication response, adjudicator decided not to consider response to extent required by the Act - failure to give proper consideration to response amounted to a failure to observe an applicable requirement of procedural fairness - determination was a nullity - determination quashed.
R (C)

The Twelve Days of Christmas
By Anonymous

The first day of Christmas,
My true love sent to me
A partridge in a pear tree.

The second day of Christmas,
My true love sent to me
Two turtle doves, and
A partridge in a pear tree.

The third day of Christmas,
My true love sent to me
Three French hens,
Two turtle doves, and
A partridge in a pear tree.

The fourth day of Christmas,
My true love sent to me
Four colly birds,
Three French hens,
Two turtle doves, and
A partridge in a pear tree.

The fifth day of Christmas,
My true love sent to me
Five gold rings,
Four colly birds,
Three French hens,
Two turtle doves, and
A partridge in a pear tree.

The sixth day of Christmas,
My true love sent to me
Six geese a-laying,
Five gold rings,
Four colly birds,
Three French hens,
Two turtle doves, and
A partridge in a pear tree.

The seventh day of Christmas,
My true love sent to me
Seven swans a-swimming,
Six geese a-laying,
Five gold rings,
Four colly birds,
Three French hens,
Two turtle doves, and
A partridge in a pear tree.

The eighth day of Christmas,
My true love sent to me
Eight maids a-milking,
Seven swans a-swimming,
Six geese a-laying,
Five gold rings,
Four colly birds,
Three French hens,
Two turtle doves, and
A partridge in a pear tree.

The ninth day of Christmas,
My true love sent to me
Nine drummers drumming,
Eight maids a-milking,
Seven swans a-swimming,
Six geese a-laying,
Five gold rings,
Four colly birds,
Three French hens,
Two turtle doves, and
A partridge in a pear tree.

The tenth day of Christmas,
My true love sent to me
Ten pipers piping,
Nine drummers drumming,
Eight maids a-milking,
Seven swans a-swimming,
Six geese a-laying,
Five gold rings,
Four colly birds,
Three French hens,
Two turtle doves, and
A partridge in a pear tree.

The eleventh day of Christmas
My true love sent to me
Eleven ladies dancing,
Ten pipers piping,
Nine drummers drumming,
Eight maids a-milking,
Seven swans a-swimming,
Six geese a-laying,
Five gold rings,
Four colly birds,
Three French hens,
Two turtle doves, and
A partridge in a pear tree.

The twelfth day of Christmas
My true love sent to me
Twelve fiddlers fiddling,
Eleven ladies dancing,
Ten pipers piping,
Nine drummers drumming,
Eight maids a-milking,
Seven swans a-swimming,
Six geese a-laying,
Five gold rings,
Four colly birds,
Three French hens,
Two turtle doves, and
A partridge in a pear tree.

The Twelve Days of Christmas

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