Insurance Wednesday, 4 March 2015 View in browser

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


Executive Summary (One Minute Read)
Agripower Barraba Pty Ltd v Blomfield (NSWCA) – real property – fixtures - ownership and entitlement to possession of items on land – appeal allowed in part
Sharkey v Mayahi-Nissi (NSWSC) – injunction – property dispute – party restrained from leaving country and to deliver up passports
Queensland Bulk Handling Pty Ltd v Peabody (Wilkie Creek) Pty Ltd (QSC) – contract – agreement for terms of use of facility – parties bound by option term
QUBE Logistics (Vic) Pty Ltd v United Equipment Pty Ltd (WASC) – corporations – statutory demand – demand set aside
Summaries With Link (Five Minute Read)
Agripower Barraba Pty Ltd v Blomfield [2015] NSWCA 30
Court of Appeal of New South Wales
Bathurst CJ, Beazley P & Sackville AJA
Real property - fixtures - energy company sought declaration it was true owner of plant and equipment on land and orders to permit removal of items - occupiers of property agreed if disputed items were not fixtures they would permit their removal from property – appellant challenged primary judge’s finding disputed items were fixtures – quicquid plantatur solo solo cedit - intention of parties – degree of annexation - held: certain disputed items should not be regarded as fixtures – appeal allowed in part – declaration made that appellant was owner of disputed items and entitled to immediate possession thereof.
Agripower Barraba Pty Ltd
Sharkey v Mayahi-Nissi [2015] NSWSC 104
Supreme Court of New South Wales
McDougall J
Injunction - first plaintiff and defendant formerly in de facto relationship – dispute concerned entitlement to ownership in property – defendant sought order that first plaintiff be restrained from leaving the country – whether there was an equitable debt or demand - whether respondent to application was likely to leave country without giving bail or security – writ of ne exeat colonia – held: Court satisfied defendant had good arguable case as to equitable cause of action –first plaintiff had engaged in deceptive conduct and intended to leave country once evidence completed – first plaintiff restrained from leaving country and to deliver up passports.
Queensland Bulk Handling Pty Ltd v Peabody (Wilkie Creek) Pty Ltd [2015] QSC 37
Supreme Court of Queensland
P McMurdo J
Contract – plaintiff operated coal export terminal – defendant was coal mining company which used facility – parties made written agreement for terms and conditions of use which contained provision for possible further term – plaintiff claimed parties were contractually bound for further term – defendant denied parties bound – proper interpretation of option term obtain agreement in principle – parties’ intention to be bound - objective construction of contract – held: plaintiff’s case upheld – parties bound to enter agreement for option term on substantially same terms as agreement – declaration made.
Queensland Bulk Handling Pty Ltd
QUBE Logistics (Vic) Pty Ltd v United Equipment Pty Ltd [2015] WASC 70
Supreme Court of Western Australia
Master Sanderson
Corporations – plaintiff lessee and defendant lessor were parties to rental agreements for forklifts - term of rental agreements that defendant would carry out all maintenance and repairs on forklifts - plaintiff sought to set aside statutory demand served on it by defendant in respect of invoices rendered for rental – plaintiff had decided forklifts were not fit for the purpose they were hired and were unsafe or potentially unsafe – plaintiff claimed it was unable to use the forklift and quantified its loss as more than amount of statutory demand - held: plaintiff had raised off-setting claim greater than amount of statutory demand – demand set aside.
QUBE Logistics (Vic) Pty Ltd