| Jingalong
Pty Ltd v Todd (NSWCA) - contract - settlement agreement was
binding and enforceable - causes of action discharged
(I B) |
| Allianz
Australia Insurance Ltd v Pomfret (NSWCA) - workers
compensation - dust diseases - arguable case insurer liable to indemnify
employer for its liability to worker
(I C) |
| Herrick
v Knowles (No 2) (NSWSC) - costs of non-party - exceptional
circumstances - plaintiff to pay non-party’s costs
(I) |
| In
the matter of Mecfab Holdings Pty Ltd (NSWSC) - corporations -
external administration - administrator appointed receiver and manager of trust
on interim basis
(B) |
| Transport
Accident Commission v Campbell (VSCA) - accident
compensation - serious injury - credit - inadequate reasons - appeal allowed -
matter remitted
(I G) |
| General
Trade Industries Pty Ltd v AGL Energy Ltd (QSC) - construction
contract - prima facie case for entitlement to return of guarantees under deed
of release not made out
(I B C) |
| HWE
Mining Pty Ltd v Robertson (WASCA) - prosecution of employer for death
of employee in motor vehicle collision at mine - appeal allowed
(I B C) |
| Summaries With Link (Five Minute Read) |
Jingalong Pty Ltd v Todd [2015] NSWCA 7
Court
of Appeal of New South Wales
Meagher
& Leeming JJA; Sackville AJA
Contract
- parties to proceedings in Equity Division entered settlement agreement -
appellant relied on settlement agreement to defeat claims made by respondents
to hold interests in land of which appellant was registered proprietor -
primary judge held settlement agreement was an accord executory which was unenforceable - since respondent had
chosen not to comply with agreement, there had been no performance - primary
judge found agreement did not prevent respondents from pursuing causes of
action, and upheld their claims - construction of agreement - held: settlement
agreement was binding and enforceable - claims made by respondents had been
satisfied - appeal allowed.
Jingalong
Pty Ltd (I B)
|
Allianz Australia Insurance
Ltd v Pomfret
[2015] NSWCA 4
Court
of Appeal of New South Wales
Beazley
P; McColl, Basten, Macfarlan & Meagher JJA
Workers
compensation - insurance - employer’s liability for occupational disease -
worker employed by company (Ceeco) in 1974 - worker employed by Ceeco again
from early 1976 until 23/12/78 - worker exposed to asbestos dust and fibre
during periods - up to 31/1/78, contract of insurance between Allianz and Ceeco
indemnified Ceeco against liability as employer during policy period. - Ceeco
deregistered - worker sued Allianz for compensation for asbestosis and related diseases
- Allianz contended relevant disease under
s151AB(1) Workers Compensation Act 1987 (NSW) was asbestosis and that it was not liable
because worker employed by Ceeco until 23/12/78 - when worker ‘last employed’
in conditions to nature of which occupational disease due Allianz claimed it
was not ‘on risk’ - divisible or indivisible harm or injury - held: purpose
of s151AB was to identify insurer liable to indemnify employer liable for
occupational disease of gradual onset contracted over period of employment
involving exposure to relevant harmful conditions - must be established that period
of exposure caused or substantially contributed to harm subject of claim - primary judge correctly concluded there was
arguable case Allianz liable to indemnify Ceeco in respect of claimed liability
to worker - appeal dismissed.
Allianz
Australia Insurance Ltd (I C)
|
Herrick v Knowles (No 2) [2015] NSWSC 54
Supreme
Court of New South Wales
Harrison
AsJ
Costs
- costs of non-party - third defendant sought order that plaintiff not be
permitted access to material produced in response to subpoena to produce issued
to doctor - plaintiff was refused access to doctor’s report - Court ordered plaintiff to pay defendants’
costs on ordinary basis - when judgment delivered, counsel for doctor did not
appear due to oversight - no application made regarding doctor’s costs - doctor
was non-party - doctor sought costs - whether
necessary for doctor to be separately represented - held: exceptional circumstances
gave rise to doctor opposing access to documents and explaining her reasons
principles set out in O’Keefe v Hayes
Knight GTO Pty Ltd [2005] FCA 1559 met - plaintiff to pay doctor’s costs.
Herrick (I)
|
In the matter of Mecfab
Holdings Pty Ltd
[2015] NSWSC 46
Supreme
Court of New South Wales
Brereton
J
Corporations
- external administration - company was trustee of trading trust - plaintiff
liquidator was appointed voluntary administrator of company pursuant to s436A Corporations Act 2001 (Cth) - liquidator
sought to be appointed receiver of property of trading trust - unit holders in
trading trust were equal shareholders and directors of company - clause of
trust deed provided appointment of trustee terminated automatically when
trustee entered into compulsory or voluntary liquidation - no replacement
trustee appointed - held: purpose and intention of appointment to facilitate
administration of trust in parallel with administration of company - fate of
company unknown until creditors’ meeting - appointment should be interim with view
to preservation of trust property - outcome of administration would influence
if not determine future of trust - orders made.
In
the matter of Mecfab Holdings Pty Ltd (B)
|
Transport Accident
Commission v Campbell
[2015] VSCA 7
Court
of Appeal of Victoria
Neave
& Santamaria JJA; Ginnane AJA
Accident
compensation - serious injury - credit - respondent injured in transport
accident - applicant sought leave to appeal from decision in which County Court
judge granted respondent leave to bring proceedings for damages - s93(4)(17) Accident Compensation Act 1985 (Vic) - onus - held: leave to
appeal granted - judge’s reasons inadequate - judge failed to provide any
evaluation on critical issue of respondent’s credibility and give proper
reasons for evaluation - appeal allowed
- matter remitted for hearing by different County Court judge.
Transport
Accident Commission (I G)
|
General Trade Industries Pty
Ltd v AGL Energy Ltd
[2014] QSC 319
Supreme
Court of Queensland
Carmody
CJ
Contract
- guarantee - applicant sought interim relief from burden of two guarantees
provided to respondent under construction contract - applicant conceded obligation to demonstrate a prima facie case -
whether applicant had present entitlement to return of guarantees under deed of
release dated 13/8/14 - contractual construction - held: Court not persuaded there
was prima facie case that applicant had present entitlement to release and return
of either or both securities because construction contract not terminated on
13/8/14 - application dismissed.
General
Trade Industries Pty Ltd (I B C)
|
HWE Mining Pty Ltd v
Robertson
[2015] WASCA 26
Court
of Appeal of Western Australia
Buss,
Murphy & Mazza JJA
Motor
vehicle collision - prosecution of employer arising from
death of employee at employer’s mine site - prosecution brought pursuant to ss9(1)
& 9A(2) Mines Safety and Inspection
Act 1994 (WA) - primary judge upheld grounds of appeal against magistrate’s
acquittal in favour of employer - primary judge remitted matter for retrial by
different magistrate - employer appealed - held: primary judge erred in finding
magistrate erred in fact in finding intersection not ‘hidden’ - magistrate did
not misapply or misdirect himself as to operation of s9(1) in respect of
allegation concerning failure to install advanced intersection signs or allegation
concerning failure to install signs on road - appeal allowed.
HWE
Mining Pty Ltd (I B C)
|
