Insurance, Banking, Construction & Government Wednesday, 1 April 2015 View in browser

Dear Benchmark Subscriber,

For your information, we attach* a paper presented on Monday 30 March 2015, at our practice to lawyers for the purpose of CLE requirements.

It may be of assistance to you on the Anti-Discrimination Act 1987.

The paper was presented Keith Osborne, Solicitor and Ian Benson, Solicitor.

Click here to view the document in PDF (394KB)

Kind regards,
Alan Conolly for Benchmark

ARC signature.

A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

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Insurance, Banking, Construction & Government

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Executive Summary (One Minute Read)
White v Benjamin (NSWCA) - damages - motor accidents compensation - appeal against assessment of damages allowed (I)
Black v Young (NSWCA) - damages - motor vehicle accident - appeal against assessment of damages dismissed (I)
Re Estate of the Late Assim; Application of Assim and Assim (NSWSC) - Wills and estates - urgent appointment of administrators with limitations on powers (B)
Graves v West (No 2) (NSWSC) - damages - assault during rugby union game - physical and psychological injury - damages assessed (I)
Minumbra Pty Ltd v AM Lancewood Investment Nominees Pty Ltd (NSWSC) - contract - subrogation - limited recovery guarantee - guarantor’s claim failed (B)
In the Estate of Johnson (Deceased) (SASC) - Wills and estates - testamentary capacity - appropriate to admit copy of Will to probate (B)
Pyramid Constructions (WA) Pty Ltd v Form Doctors Pty Ltd (WASC) - costs - defendant ultimately conceded plaintiff’s entitlement to relief - defendant to pay plaintiff’s costs (B C)
Summaries With Link (Five Minute Read)
White v Benjamin [2015] NSWCA 75
Court of Appeal of New South Wales
Beazley ACJ; Basten & Meagher JJA
Damages - motor accidents compensation - appellant driver injured when her stationary vehicle hit from behind by vehicle driven by first respondent - appellant had undisputed continuing disability flowing from neck injury - primary judge awarded appellant damages for future economic loss resulting from loss of earning capacity but no damages for past economic loss, gratuitous domestic care or commercial services - appellant challenged assessment of damages - held: appeal against award of damages for loss of earning capacity rejected - trial judge erred in increasing deduction for vicissitudes to 25% - trial judge erred in dealing with claim for domestic assistance as covered by s15 Civil Liability Act 2002 (NSW) - assessment of damages for domestic care for motor accidents to be conducted under s141B Motor Accidents Compensation Act 1999 (NSW) - no reason to interfere with rejection of claim for gratuitous domestic services - amount allowed for future domestic assistance - appeal allowed in part.
White (I)
Black v Young [2015] NSWCA 71
Court of Appeal of New South Wales
Basten JA, Sackville AJA & Adamson J
Damages - motor vehicle accident - appellant injured in motor vehicle accident - liability admitted - primary judge awarded appellant damages for economic loss - appellant appealed against assessment of damages - held: no error shown in primary judges finding that back condition was not causally related to accident - no error in not awarding damages for diminution of earning capacity due to appellant’s psychological condition - no error in award of buffer - sum awarded not outside range having regard to evidence- not inconsistent with s126 Motor Accidents Compensation Act 1999 (NSW) Act to award buffer in appropriate cases - appeal dismissed.
Black (I)
Re Estate of the Late Assim; Application of Assim and Assim [2015] NSWSC 337
Supreme Court of New South Wales
Slattery J
Wills and estates - plaintiffs were daughters of deceased - deceased had died suddenly - daughters sought appointment as administrators of father’s estate under s74 Probate and Administration Act 1898 (NSW) - deceased was sole signatory on trust account of real estate business - no signatory to trust account of business to enable money to be paid out to clients - plaintiffs sought to appoint directors to company controlling business so company could appoint signatory - s201F Corporations Act 2001 (Cth) - held: case for urgent appointment made out - appointment limited to objective of preserving value of real estate business from damage - daughters appointed administrators with limitation on powers to act pending grant of probate or administration.
Assim (B)
Graves v West (No 2) [2015] NSWSC 306
Supreme Court of New South Wales
Button J
Damages - plaintiff injured in assault during rugby union game - defendant pleaded guilty to and was convicted of recklessly causing grievous bodily harm to plaintiff - defendant placed on good behaviour bond and subsequently left Australia - plaintiff sought damages arising from assault - summary judgment entered for plaintiff - assessment of damages - physical and psychiatric injury - held: appropriate for matter to proceed ex parte - claim to be determined in accordance with common law of damages, not Civil Liability Act 2002 (NSW) - damages assessed.
Graves (I)
Minumbra Pty Ltd v AM Lancewood Investment Nominees Pty Ltd [2015] NSWSC 302
Supreme Court of New South Wales
Young AJA
Contract - guarantee - plaintiff was guarantor - defendant was principal creditor which loaned amount to borrower (entity whose liability was partially guaranteed) - dispute concerning whether surety was able to be subrogated to remedies of principal creditor even though money still owed to principal creditor - guarantor sought various declarations as to its rights under collection of deeds - whether surety had granted “part guarantee” or whether it was “limited recovery guarantee” - held: plain words of document showed drafter made clear distinction between subject matter of guarantee and cap on liability of guarantor - document was limited recovery guarantee - subrogation rights not available until lender’s claim on borrower under deeds paid in full - guarantor’s claim failed.
Minumbra (B)
In the Estate of Johnson (Deceased) [2015] SASC 51
Supreme Court of South Australia
Gray J
Wills and estates - testamentary capacity - trustee sought grant of letters of administration with copy of Will annexed - deceased died in 2012 - deceased made Will in 2004 - original Will could not be found - medical report expressed opinion deceased not of testamentary capacity when Will made - consideration of further material addressing question of capacity - held: in contentious probate proceedings which become undefended Court maintained oversight when considering Will’s validity - Court satisfied deceased had testamentary capacity and that it was appropriate to admit copy of Will to probate.
Johnson (B)
Pyramid Constructions (WA) Pty Ltd v Form Doctors Pty Ltd [2015] WASC 94
Supreme Court of Western Australia
Martin CJ
Costs - commerical arbitration - no adjudication on merits - plaintiff sought removal of arbitrator from arbitration upon which he had embarked - orders sought pursuant to s13 Commercial Arbitration Act 2012 (WA) - ultimately arbitrator withdrew as consequence of defendant advising him it would not oppose orders - parties disagreed as to costs - held: relevant ’event’ in this case was that party against whom relief sought eventually conceded moving party’s l entitlement to relief. - moving party substantially successful in achieving objectives of proceedings - costs to follow event - defendant to pay plaintiff’s costs.
Pyramid (B C)