Weekly Insurance Law Review: Friday, 3 July 2015 View in browser
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A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Weekly Insurance Law Review

Executive Summary (One Minute Read)
Arida v Arida (NSWCA) - contract - Heads of Agreement did not relieve respondent from obligation to pay interest under contract for sale of property - appeal allowed
Prospect Resources Ltd v Molyneux (NSWCA) - contract - subscription agreement - conditions precedent not satisfied - no waiver of satisfaction of conditions precedent by letter - appeal dismissed
Williams v Pisano (NSWCA) - building and construction - misleading representations made in connection with sale of residential premises did not constitute conduct in trade or commerce - appeal allowed
Dijakovic v Perez (NSWCA) - motor accidents compensation - primary judge erred in refusing leave to commence proceedings more than three years after accident - appeal allowed
Byrnes v Hawkesbury City Council (NSWSC) - negligence - slip and fall - Council not liable - appeal against findings of fact dismissed
Hitchens v Zurich Australia Ltd (NSWSC) - insurance - life insurance policies - insurer entitled to avoid policies on grounds of fraudulent misrepresentation and fraudulent non-disclosure
Housden v Boral Australian Gypsum; Boral Australian Gypsum v Victorian WorkCover Authority (VSCA) - accident compensation - workplace injury - Boral not liable - appeal dismissed
Zhong v Melbourne Health (VSCA) - negligence - unrepresented litigant - diagnosis of mental illness resulting in involuntary inpatient treatment - claim against hospital and Melbourne Health dismissed - appeal dismissed
Montclare v Metlife Insurance Ltd (VSC) - insurance - life insurance - fraudulent misrepresentation - insurer entitled to avoid claim
Summaries With Link (Five Minute Read)
Arida v Arida [2015] NSWCA 170
Court of Appeal of New South Wales
Bathurst CJ, Macfarlan JA & Sackville AJA
Contract - appellants and respondent co-owned property - respondent purchased property at auction from Trustees for sale - purchase not completed on completion date - special condition in contract for sale provided for payment of interest to Trustees if sale not completed on completion date - Heads of Agreement entered between appellants, respondent and Trustees in order to resolve wider disputes between appellants and respondent - whether Heads of Agreement amended contract of sale to remove respondent’s obligation to pay interest unless and until appellants paid money to him pursuant to Heads of Agreement - s66G Conveyancing Act 1919 - held: primary judge erred in construing Heads of Agreement so as to relieve respondent from obligation to pay interest pursuant contract of sale - Heads of Agreement did not relieve respondent from obligation to pay interest - appeal allowed.
[From Benchmark Monday, 29 June 2015]
Prospect Resources Ltd v Molyneux [2015] NSWCA 171
Court of Appeal of New South Wales
Beazley P; Ward & Leeming JJA
Contract - appellant company and respondent consortium entered subscription agreement under which consortium agreed to subscribe for shares in company's capital - company claimed conditions governing obligation to subscribe were satisfied and that consortium was required to pay - consortium claimed conditions were not satisfied and that it was entitled to terminate subscription agreement - primary judge found company had not reasonably satisfied consortium that conditions precedent had been satisfied and that there was no waiver of satisfaction of conditions precedent - company appealed - held: letter from company to consortium did not constitute waiver of ‘conditions precedent’ - provision of letter alone insufficient to meet requirement that company ‘reasonably satisfy’ consortium there was waiver of ‘conditions precedent’ - no error in exercise of primary judge’s discretion to order indemnity costs warranting appellate intervention - appeal dismissed.
[From Benchmark Tuesday, 30 June 2015]
Williams v Pisano [2015] NSWCA 177
Court of Appeal of New South Wales
Bathurst CJ; McColl & Emmett JJA
Building and construction - trade practices - negligence - plaintiffs purchased house from owner-builder and husband - house was profoundly defective in its construction - sale preceded by false information given by owner-builder and appellant husband to real estate agent which was then passed on with their authority to purchasers - information played significant part in purchasers' decision to buy - purchasers sought damages for reasonable cost of remedying defects - primary judge gave judgment for purchasers - primary judge satisfied sale was a transaction in trade or commerce and that conduct complained of was in trade or commerce - falsity of representations established - mis-statements made in advertising material direct and intended positively to influence reader to buy - misleading conduct induced purchasers to enter contract - reliance established - claim in negligence not made out - held: primary judge erred in concluding that representations constituted conduct engaged in by appellant in trade or commerce - no contravention on the part of appellant of either ss18 or 30 Australian Consumer Law - appeal allowed.
[From Benchmark Tuesday, 30 June 2015]
Dijakovic v Perez [2015] NSWCA 174
Court of Appeal of New South Wales
Gleeson & Leeming JJA; McCallum J
Motor accidents compensation - applicant injured in motor vehicle accident - respondent was driver - applicant did not commence legal proceedings until date more than three years after the accident - primary judge refused application for to commence proceedings - whether full and satisfactory explanation for delay - applicable monetary threshold -  s43A Motor Accidents Act 1988 -  ss3, 60, 66, 82, 85A, 89A, 89C, 90, 91 & 109 Motor Accidents Compensation Act 1999 held: primary judge’s reasoning on ‘full and satisfactory’ explanation issue contained material errors of fact and failed to take into account relevant matters - primary judge erred in approach to lay and medical evidence in respect of monetary threshold issue - appeal allowed - leave granted to commence proceedings.
[From Benchmark Wednesday, 1 July 2015]
Byrnes v Hawkesbury City Council [2015] NSWCA 173
Court of Appeal of New South Wales
Basten & Emmett JJA; Sackville AJA
Negligence - findings of fact - appellant fell between driveway of premises and sealed roadway - appellant claimed Council carried out work placing loose gravel on crossover in breach of duty of care resulting in slip and fall - primary judge found appellant had failed to establish essential factual foundation for pleaded case because evidence had established neither Council nor its contractors had performed any work on crossover or deposited any material - held: no error in assessment of reliability of evidence - no failure to give sufficient weight to evidence - primary judge did not err in not accepting certain evidence - no error in use of exhibits - appeal dismissed.
[From Benchmark Friday, 26 June 2015]
Hitchens v Zurich Australia Ltd [2015] NSWSC 825
Supreme Court of New South Wales
White J
Insurance - duty of disclosure - plaintiff and first defendant insurer entered into two life insurance policies - plaintiff suffered accident using power saw - insurer purportedly avoided both policies on ground of misrepresentation and non-disclosure - plaintiff claimed damages that would compensate him for amounts that would be payable under both policies - answers to proposal form questions -  held: insurer entitled to avoid policies on grounds of fraudulent misrepresentation and fraudulent non-disclosure - insured had fraudulently misrepresented medical history and breached duty of disclosure - no waiver by insured of duty of disclosure by not making further inquiries - judgment for insurer.
[From Benchmark Wednesday, 1 July 2015]
Housden v Boral Australian Gypsum; Boral Australian Gypsum v Victorian WorkCover Authority [2015] VSCA 162
Court of Appeal of Victoria
Tate, Santamaria & McLeish JJA
Accident compensation - plasterer suffered work injury cutting sheets of plasterboard - plaintiff alleged Boral’s negligence caused injury - primary judge entered judgment for Boral - plasterer contended trial judge erred in not finding that plasterer cut pieces from plasterboard sheets by methods he described - plasterer also contended as alternative case that trial judge should have decided case on basis of all evidence, and that it should not have turned on pleadings - plasterer contended that even if trial judge was right to find cutting plasterboard on the horizontal was not his dominant method of cutting, he did find plasterer cut it that way some of the time and had erred in finding no negligence or breach of duty by Boral - held: no error in finding plasterer did not cut stack of plasterboard sheets in way he said he did - plasterer did not advance alternative case before trial judge - plasterer not permitted to run alternative case - appeal dismissed.
[From Benchmark Friday, 26 June 2015]
Zhong v Melbourne Health [2015] VSCA 165
Court of Appeal of Victoria
Santamaria & McLeish JJA, Dixon AJA
Negligence - unrepresented litigant - plaintiff claimed defendants were negligent in diagnosing him as suffering from a mental illness as result of which he was subjected to involuntary inpatient treatment at hospitals - trial judge dismissed plaintiff’s claim - ss12 & 12AA Mental Health Act 1986 - held: trial judge did not fail to permit plaintiff to make an opening statement - no bias on part of trial judge - no failure to give fair trial or give plaintiff procedural fairness - appeal dismissed.
[From Benchmark Monday, 29 June 2015]
Montclare v Metlife Insurance Ltd [2015] VSC 306
Supreme Court of Victoria
Ginnane J
Insurance - life insurance - plaintiff sued insurer claiming $1.1 million as life insurance benefit - life insured died by suicide on 22 January 2001- insurer admitted it entered into a contract of insurance with plaintiff on the life of deceased life-insured and that, from 10 June 1999, benefit payable under insurance was $1.1 million - however insurer contended plaintiff not entitled to payment of sum - held: life insurance cover obtained by plaintiff pursuant to contracts under which he was an insured for purposes of Insurance Contracts Act 1984 (Cth) - insurer issued insurance and was party to contracts of insurance - life-insured made fraudulent misrepresentation to insurer concerning medical history before contracts entered  - misrepresentation had effect as though it had been made by plaintiff -  insurer validly avoided contracts of insurance under s29 - proceeding dismissed.
[From Benchmark Tuesday, 30 June 2015]
from Beachy Head
By Charlotte Smith

On thy stupendous summit, rock sublime!
That o’er the channel reared, half way at sea
The mariner at early morning hails,
I would recline; while Fancy should go forth,
And represent the strange and awful hour
Of vast concussion; when the Omnipotent
Stretched forth his arm, and rent the solid hills,
Bidding the impetuous main flood rush between
The rifted shores, and from the continent
Eternally divided this green isle.
Imperial lord of the high southern coast!
From thy projecting head-land I would mark
Far in the east the shades of night disperse,
Melting and thinned, as from the dark blue wave
Emerging, brilliant rays of arrowy light
Dart from the horizon; when the glorious sun
Just lifts above it his resplendent orb.
Advances now, with feathery silver touched,
The rippling tide of flood; glisten the sands,
While, inmates of the chalky clefts that scar
Thy sides precipitous, with shrill harsh cry,
Their white wings glancing in the level beam,
The terns, and gulls, and tarrocks, seek their food,
And thy rough hollows echo to the voice
Of the gray choughs, and ever restless daws,
With clamor, not unlike the chiding hounds,
While the lone shepherd, and his baying dog,
Drive to thy turfy crest his bleating flock.

The high meridian of the day is past,
And Ocean now, reflecting the calm Heaven,
Is of cerulean hue; and murmurs low
The tide of ebb, upon the level sands.
The sloop, her angular canvas shifting still,
Catches the light and variable airs
That but a little crisp the summer sea,
Dimpling its tranquil surface.

Charlotte Smith