Daily Insurance: Wednesday, 6 April 2016
For the best view, please download images or click here
AR Conolly Company Lawyers.
A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Daily Insurance

  Watch Benchmark Television
  Listen to the Summary
Executive Summary (One Minute Read)
Primary Health Care Limited v Commonwealth of Australia (FCA) - trademarks - grounds of opposition to registration of trademarks established - appeal dismissed
SAMM Property Holdings Pty Ltd v Shaye Properties Pty Ltd (NSWSC) - contract - rectification - parties common intention was that purchase price of land was amount plus GST - rectification granted
IBM Australia Ltd v State of Queensland (QSC) - guarantee and indemnity - construction contract - applicant entitled to indemnity costs under clause of agreement
Dear Subscriber

1. Today we rebroadcast a favourite production of a discussion between actor, writer, theatre director Colin McPhillamy and lawyer Catherine McDonald.

2. Colin identifies why some advocacy is so memorable and persuasive – it may be he has helped us identify the memorable moments when we are persuaded by the advocate. How is it every time Michael Kirby speaks we all wish to listen?

3. For Benchmark CLE subscribers we have prepared notes which we will forward to them at their request.

4. Also for Benchmark CLE subscribers at their request we will forward them an advice notice evidencing when they accessed this production.

5. If you are not a CLE subscriber you can subscribe here: https://benchmarkinc.com.au/cle

6. We also have a series of questions for Benchmark CLE subscribers which we will send to them at their request.

7. We will be in the next few days publishing some productions which are exclusively for Benchmark CLE subscribers.

8. You should watch on Wi-Fi to avoid excess data usage charges.

Warm regards
Alan Conolly for Benchmark
ARC signature.
Benchmark Television
Click here to watch the video
Colin McPhillamy and Catherine McDonald on Advocacy and Theatre
Cases are won and lost in court by more than just the technical, legal argument. The skill of advocacy makes up the differential, which can easily be traced to the art of acting.
Summaries With Link (Five Minute Read)
Primary Health Care Limited v Commonwealth of Australia [2016] FCA 313
Federal Court of Australia
Jagot J
Trademarks - applicant provided services under name Primary Heath Care - applicant sought to register two trade marks for services, being a word mark and a logo - respondents opposed registration of marks pursuant to ss41, 42 & 43 Trade Marks Act 1995 (Cth) - Registrar of Trade Marks found respondents established opposition grounds under s43 which concerned marks likely to deceive or confuse - Registrar did not decide whether grounds relating to s41, which concerned trademarks distinguishing services and s42, concerning use of trade mark contrary to law, were established - applicant appealed against Registrar's decision - respondents by notice of contention opposed trade marks on basis of ss41 & 42 - held: respondents established opposition to registration of trademarks on basis of ss43, 41 & 42 - appeal dismissed.
Primary Health Care Limited
SAMM Property Holdings Pty Ltd v Shaye Properties Pty Ltd [2016] NSWSC 362
Supreme Court of New South Wales
Stevenson J
Contract - rectification - defendant vendor listed property for public auction - plaintiff purchaser sent its agent to auction to bid on its behalf - agent bid amount to purchase property - auctioneer accepted bid - contracts executed and exchanged - effect of contract was to provide for purchase price inclusive of GST - vendor alleged parties “clear and common intention” was that purchase price was amount plus GST and sought rectification - test of rectification - conflicting evidence - held: Court satisfied it was parties' common intention that purchase price would be amount plus GST - rectification of contract granted.
IBM Australia Ltd v State of Queensland [2016] QSC 70
Supreme Court of Queensland
Martin J
Guarantee and indemnity - construction contract - Court found applicant had been released from State's claims against it - release contained in agreement which parties entered and which contained clause providing that “If the State makes a claim against an IBM Party which is the subject of the State Covenant or State Release, then the State fully indemnifies each IBM Party against any liability (including the amount of any judgement [sic], settlement sum and legal and other costs) incurred by the IBM Party as a result of that claim” - applicant sought order giving effect to clause and order for costs - construction of clause - held: clause entitled IBM to indemnity costs - there was nothing to suggest indemnity costs order inappropriate - State to pay applicant's costs on indemnity basis.