| Aspect Contracts (Asbestos) Limited (Respondent) v Higgins Construction Plc (Appellant) (UKSC) - construction contract - implied term - right to recover payment - restitution - appeal dismissed (B C) |
| Hockey v Fairfax Media Publications Pty Ltd (No 2) (FCA) - defamation - remedies - injunctions refused - judgment entered for applicant - costs orders (I) |
| Falco v Aiyaz; Falco v Falzon (NSWCA) - motor accidents compensation - psychiatric injury - damages - appeal dismissed - cross-appeal allowed (I) |
| Nadarajapillai v Naderasa (No 2) (NSWCA) - costs - solicitor’s misconduct incurred costs improperly and without reasonable cause - costs order against solicitor (I) |
| Hillam v Iacullo (NSWCA) - contract - successive loans - later loan rescinded earlier loan - breach of loan agreement by lenders - borrower not required to pay “uplift”- appeal allowed (I B) |
| Rodger v De Gelder (NSWCA) - judicial review - motor accidents compensation - Panel’s certificate vitiated by jurisdictional error - appeal dismissed (I G) |
| “B” v Reineker (NSWSC) - trespass to the person - sexual assault by teacher against student - trespass established - judgment for student in sum of $1,228,000 (I) |
| Dean's Pty Ltd v Laratae (VSC) - judicial review - accident compensation - estoppel - Magistrate’s decision to refuse to refer question to medical panel quashed (I G) |
| Winky Pop v Mobil (VSC) - damages - petroleum leak - basis for measurement of damages - plaintiffs entitled to sum for costs incurred in investigating leak (I B C) |
| Grocon Constructors (Victoria) Pty Ltd v APN DF2 Project 2 Pty Ltd (VSCA) - building contract - refusal to provide records to principal - erroneous construction of phrase in side deed - appeal allowed (I B C) |
| Brirek Industries Pty Ltd v McKenzie Group Consulting (Vic) Pty Ltd (No 2) (VSCA) - contract - reformulated claim not remitted - appeal dismissed - costs orders (I B C) |
| Wynne v Davey (QSC) - negligence - collision between motorcycle and campervan - driver of campervan negligent - motorcyclist contributorily negligent - liability apportioned at 85% for driver and 15% for motorcyclist (I) |
| Gambaro Pty Ltd v Rohrig (Qld) Pty Ltd (QSC) - summary judgment - pleadings - security of payments - restitution - applications dismissed (B C CW) |
| Austin v Verini (WASC) - insurance policy - balcony collapse - exclusion clause - insurer liable to indemnify owner builder for injuries suffered by plaintiffs (I B C) |
| Summaries With Link (Five Minute Read) |
Aspect Contracts (Asbestos) Limited (Respondent) v Higgins Construction Plc (Appellant) [2015] UKSC 38
Supreme Court of the United Kingdom
Lord Mance, Lord Wilson, Lord Sumption, Lord Reed & Lord Toulson
Construction contract - limitations - respondent contracted with building contractor to carry out asbestos survey and report on blocks of maisonettes which building contractor was considering redeveloping - during redevelopment building contractor allegedly found asbestos containing materials not identified in report - adjudicator concluded respondent in breach of contractual and tortious duties causing loss to building contractor - parties did not agree to treat adjudicator’s decision as final - building contractor did not commence proceedings and limitation period expired - respondent commenced proceedings to recover amount it paid to building contractor pursuant to adjudication - respondent contended no sum was due on examination of merits of original dispute - building contractor counterclaimed for balance of claim and interest - High Court rejected respondent’s claim on basis there was no implied term for repayment or entitlement to restitution after expiry of limitation period in 2010 or 2011 - Court of Appeal found there was implied term and allowed appeal - effect of adjudication pursuant to provisions implied into construction contract under s108(5) Housing Grants, Construction and Regeneration Act 1996, read Scheme for Construction Contracts (England and Wales) Regulations 1998 (SI 1998 No 649) - held: it was an implied contractual term that respondent would have directly enforceable right to recover payment if on final determination on merits of original dispute, sums shown not to have been due to building contractor - repayment could also be claimed by way of restitution - building contractor was time-barred from pursuing its counterclaim for the balance of its original claim - appeal dismissed
Aspect (B C)
[From Benchmark Monday, 27 July 2015]
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Hockey v Fairfax Media Publications Pty Ltd (No 2) [2015] FCA 750
Federal Court of Australia
White J
Defamation - remedies - costs - Court upheld applicants claims in respect of poster by which Sydney Morning Herald promoted its print edition of 5 May 2014, and two tweets published by The Age - Court assessed applicant’s damages at $120,000 in respect of poster and $80,000 in respect of tweets - interest - injunctions - costs - form of orders - held: judgment entered for applicant - applicant’s claims for injunctions dismissed - costs orders made.
Hockey (I)
[From Benchmark Friday, 24 July 2015]
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Falco v Aiyaz; Falco v Falzon [2015] NSWCA 202
Court of Appeal of New South Wales
Macfarlan & Emmett JJA; Sackville AJA
Motor accidents compensation - appellant developed psychiatric conditions following two separate motor vehicle accidents in which vehicle in which she was travelling was struck from behind - appellant sued drivers of the two vehicles - no question of liability of drivers - appellant contended damages awarded in her favour were inadequate - appellant claimed primary judge erred in concluding she exaggerated her symptoms - held: challenge to primary judge’s finding that appellant considerably exaggerated her symptoms failed - no appellable error in assessment of extent of appellant’s psychiatric disabilities attributable to accidents - primary judge erred in awarding damages against drivers for gratuitous care services - Motor Accidents Compensation Act 1999 (NSW) precluded award of damages for gratuitous care services against each driver - appeal dismissed - cross-appeal allowed.
Falco (I)
[From Benchmark Tuesday, 21 July 2015]
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Nadarajapillai v Naderasa (No 2) [2015] NSWCA 209
Court of Appeal of New South Wales
McColl, Macfarlan & Emmett JJA
Costs - legal practitioners - solicitors duties - application for costs against legal representative - Court ordered dismissal of appeal - respondent Lender sought order that solicitor for appellant Borrower, who appeared for Borrower on hearing of appeal, pay Lender amount of costs Borrower was ordered to pay - Court’s general power to order a legal representative to personally pay opposing party’s costs directly - ss56 & 99 Civil Procedure Act 2005 (NSW) - held: solicitor’s conduct in instituting and maintaining appeal with no prospects of success and no merit constituted serious incompetence as a legal practitioner - costs had been incurred improperly and without reasonable cause in circumstances for which solicitor was responsible - solicitor should bear costs that Borrower was ordered to pay to Lender.
Nadarajapillai (I)
[From Benchmark Thursday, 23 July 2015]
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Hillam v Iacullo [2015] NSWCA 196
Court of Appeal of New South Wales
Basten, Ward & Leeming JJA
Contract - successive loan agreements - appellant entered three written loan agreements with respondents - first loan agreement dealt with advance, second with both original advance and further advance, and third with the two prior advances and final advance - appellant promised to repay principal of each loan plus interest on fixed date and to transfer an “uplift” equal to double principal at end of term - third loan agreement also required appellant to provide respondents with security - appellant contended third loan agreement substituted for second so respondents not entitled to any sum under second loan agreement - appellant contended he was not obliged to pay “uplift” owing because respondents failed to advance final amount promised under agreement - held: third loan agreement dealt with prior advances in manner inconsistent with second loan agreement - third loan agreement necessarily rescinded second - third loan agreement not abandoned - respondents breached third loan agreement by failing to advance final tranche of loan on particular date, an obligation independent of appellant’s obligation to procure charge - obligation to pay “uplift” dependent upon obligation to loan principal - not open to respondents to require appellant to pay uplift of double promised loan of when unwilling to lend all of amount on promised terms - appeal allowed.
Hillam (I B)
[From Benchmark Friday, 24 July 2015]
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Rodger v De Gelder [2015] NSWCA 211
Court of Appeal of New South Wales
Macfarlan, Gleeson & Leeming JJA
Judicial review - motor accidents compensation - respondent injured in motor vehicle accident when vehicle driven by respondent collided with rear of respondent’s stationary vehicle - respondent sued appellant - medical dispute referred to Motor Accidents Medical Assessment Service - Review Panel revoked certificate of medical assessor which certified degree of permanent impairment as 20% - Review Panel certified a degree of permanent impairment as 0% - primary judge found Panel failed to take into account relevant considerations - held: Panel did not engage with evidence of respondent’s complaint of onset of thoracic pain at time of and continuing after accident - Panel misread doctor’s report that recorded history of pain in thoracic region at time of accident - Panel failed to respond to substantial argument based on evidence relied on by respondent as to causation of injury amounting to jurisdictional error - Panel failed to apply itself to real question to be decided in carrying out statutory function in s58(1)(d) Motor Accidents Compensation Act 1999 (NSW) because it misunderstood evidence relevant to its determination - Panel’s decision was not real exercise of its statutory function - appeal dismissed.
Rodger (I G)
[From Benchmark Monday, 27 July 2015]
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“B” v Reineker [2015] NSWSC 949
Supreme Court of New South Wales
Adamson J
Trespass to the person - “B” commenced proceedings for damages for trespass against defendant and for negligence against school - defendant was employed by school and “B”’s teacher - claim against school resolved by agreement - principal allegation was that “B” was sexually assaulted by defendant between 2001 and 2008 - defendant pleaded guilty to offences of aggravated indecent assault and unlawful sexual intercourse - at time of hearing defendant still in custody serving sentence - held: plaintiff established cause of action in trespass against defendant - plaintiff was below age of consent for large proportion of assaults - in circumstances it would be unreal to regard plaintiff as able to form judgment whether to consent merely because she had reached biological marker - judgment for plaintiff against defendant in sum of $1,228,000.
“B” (I)
[From Benchmark Wednesday, 22 July 2015]
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Dean's Pty Ltd v Laratae [2015] VSC 341
Supreme Court of Victoria
Zammit J
Judicial review - accident compensation - employer sought to quash decision of Magistrate not to refer question to medical panel concerning whether employment was or could have been significant contributing factor to alleged injury - Magistrate held employer was estopped from contesting injury alleged by worker on basis of an issue estoppel arising as result of decision in application for leave to bring damages proceedings under s134AB(16)(b) Accident Compensation Act 1985 (Vic) - held: on natural reading of s134AB(19A) Court unable to infer legislative intention for issue estoppel to arise from all findings made in serious injury application in relation to all subsequent proceedings - no issue estoppel arose - judge did not have jurisdiction to determine causation of worker’s injuries other than incidentally and for limited purpose - judges finding able to be re-litigated - finding not a final and conclusive determination on merits - Magistrate’s decision quashed - matter remitted to Magistrate’s Court for referral of all medical questions to medical panel.
Dean’s (I G)
[From Benchmark Tuesday, 21 July 2015]
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Winky Pop v Mobil [2015] VSC 348
Supreme Court of Victoria
Digby J
Damages - negligence - nuisance - claim arising from petroleum leak (Mobil leak) which created plume of petroleum hydrocarbon in groundwater underneath plaintiffs’ land - plaintiffs claimed against Mobil in negligence, nuisance, and for compensation under s151 Pipelines Act 2005 (Vic) - plaintiffs also claimed against State in negligence - Mobil admitted it contaminated plaintiffs’ land and conceded responsibility for leak and clean up - appropriate form of relief - held: proper basis for measurement of damages was diminution in value of plaintiffs’ land - plaintiffs did not establish they had or but for Mobil leak would have had opportunity to develop plaintiffs’ land residentially - plaintiffs had not lost opportunity to develop plaintiffs’ land because of Mobil leak - opportunity to develop plaintiffs’ land residentially had no real prospect of being successfully pursued - Mobil leak would not prevent or impair plaintiffs’ ability to develop land for residential purposes - plaintiffs are entitled to be paid sum of $104,273.93 with interest by Mobil in relation to their costs incurred in investigating the Mobil leak.
Winky (I B C)
[From Benchmark Thursday, 23 July 2015]
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Grocon Constructors (Victoria) Pty Ltd v APN DF2 Project 2 Pty Ltd [2015] VSCA 190
Court of Appeal of Victoria
Santamaria, Kyrou & McLeish JJA
Building contract - trial judge found applicant building contractor breached its obligations to respondents (principals) under a contract for design and construction of building - finding of breach of contract related to applicant’s refusal to provide records to principal to enable principal to verify costs actually paid by applicant in completing project - held: trial judge erred in construction of ‘actual trade, supplier, consultant or subcontract cost payable ...’ in side deed and in accepting implied term that principal was entitled to be provided with records - leave to appeal granted - notice of contention dismissed - appeal allowed.
Grocon (I B C)
[From Benchmark Friday, 24 July 2015]
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Brirek Industries Pty Ltd v McKenzie Group Consulting (Vic) Pty Ltd (No 2) [2015] VSCA 185
Court of Appeal of Victoria
Redlich, Whelan & Santamaria JJA
Contract - costs - appellant failed to establish on appeal that trial judge erred in dismissing claims based on 2002 contract and negligence - however Court found trial judge wrong to hold claims made in reliance on 2004 contract statute-barred - trial judge had retired by time of hearing of appeal - Court sought and received further written and oral submissions - whether claim under 2004 contract for damages should be remitted - held: it would be unsatisfactory and inherently unfair to respondent to permit appellant to amend and advance reformulated claim - 2004 contract claim should not be remitted - pleaded case bound to fail - reformulated claim should not be permitted to be advanced - appeal dismissed - costs orders made.
Brirek (I B C)
[From Benchmark Friday, 24 July 2015]
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Wynne v Davey [2015] QSC 200
Supreme Court of Queensland
Burns J
Negligence - plaintiff motorcyclist claimed damages for injuries and loss arising out of collision with campervan - first defendant was driver of campervan - quantum of damages agreed - only issue was liability - s23 Civil Liability Act 2003 (Qld) - regs 37, 38 & 132 Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld) - held: first defendant negligent to substantial degree - U-turn first defendant attempted which ended in collision flouted road rules and was dangerous manoeuvre - first defendant knew a motorcycle was travelling towards his position but turned without looking - plaintiff negligent to lesser degree - plaintiff knew existence of campervan and approached its position too fast to evade collision if vehicle pulled out onto roadway - by travelling at speed he did, plaintiff guilty of contributory negligence - liability apportioned at 85% for driver, and 15% for plaintiff - judgment for plaintiff
Wynne (I)
[From Benchmark Wednesday, 22 July 2015]
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Boriop Pty Ltd v Moussi [2015] VSC 345s
Supreme Court of Victoria
Gardiner AsJ
Corporations - statutory demand - plaintiff sought to set aside statutory demand served on it by defendant for debt described in schedule as ‘moneys lent by the creditor to the company on 8 March 2012 and evidenced by a Loan Agreement deed dated 8 March 2012’ - plaintiff contended was genuine dispute in respect of demand - plaintiff asserted that debt subject of demand was by owed not by it, but by its director - ss459G & 459H Corporations Act 2001 (Cth) - held: plaintiff failed to discharge onus to establish dispute on which it relied was genuine - dispute alleged was spurious - proceeding dismissed.
Boriop (B C CW)
[From Benchmark Monday, 27 July 2015]
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Austin v Verini [2015] WASC 258
Supreme Court of Western Australia
Allanson J
Insurance contract - exclusion clause - personal legal liability cover - preliminary question - balcony collapsed at house while owners holding party - plaintiffs standing on balcony when it collapsed and suffered injury - house built by defendant - plaintiffs sued defendant - defendant issued third party notice against insurer claiming indemnity against plaintiffs' claims under policy - insurer contended exclusion clause applied - exclusion clause stated insurer did not insure against liability for personal injury caused by or arising out of breach of insured’s duty as owner or occupier of building which was not insured by insurer at time of occurrence that caused injury - parties agreed insurer did not insurer defendant against loss or damage to house or contents at time of balcony collapse - whether third party liable to indemnify defendant - whether liability of defendant for breach of duty was breach as owner - whether ownership integral to duty of care - construction of policy - ss4 & 4A(1)(c) Builders' Registration Act 1939 (WA) - held: both parties accepted defendant had duty of care to plaintiffs and breached that duty - Court satisfied duty was not a duty 'as the owner' - insurer liable to indemnify defendant - defendant entitled to orders sought in third party statement of claim.
Austin (I B C)
[From Benchmark Wednesday, 22 July 2015]
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