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

Insurance, Banking, Construction & Government

Tuesday, 7 October 2014
Executive Summary (One Minute Read)
Roskott v Commonwealth Bank of Australia (NSWCA) - possession - adjournment and extension of time to appeal from strike-out of defence refused (B)
Rankin v Gosford City Council (NSWSC) - negligence - motorcyclist injured in collision with traffic barriers moved by unknown malefactors - Council not liable (I C)
Oakes v Oakes (NSWSC) - succession - family provision order in favour of divorced former daughter-in-law of deceased (B)
Fitzgerald v CBL Insurance Ltd (VSC) - insurance contract - claim by trustees under financial insurance policy - insolvency - rectification - proof of loss - damages (I B)
Parry v Kennedy (QCA) - subpoena - no error in assessment of reasonable costs of compliance - appeal dismissed (I)
Edwards v Tasmanian Mines Ltd (TASSC) - workers compensation - eligibility for weekly payments - tribunal had jurisdiction to deal with worker's referral - appeal allowed (I G)
HSBC Bank Australia Ltd v V (WASC) - possession - caveat over properties removed - cross-vesting of action to Family Court refused - joinder refused (B)
Summaries With Link (Five Minute Read)
Roskott v Commonwealth Bank of Australia [2014] NSWCA 341
Court of Appeal of New South Wales
Basten & Meagher JJA
Possession - bank loaned money secured by mortgage over applicants' property - applicants defaulted - primary judge struck out defence that bank had accepted a bill of exchange for sum of one dollar - bank obtained judgment and order for possession - applicants sought leave out of time to appeal from strike-out of defence - held: primary judge correct to strike out defence as filed - no substantial defence raised on application - extension of time to appeal refused - application for adjournment by email to Registrar at short notice refused - desirability of disposing of proceedings when listed for hearing and where they appeared to have no merit was consequence of need to protect Bank from wasted costs - summons dismissed.
Roskott (B)
Rankin v Gosford City Council [2014] NSWSC 1354
Supreme Court of New South Wales
Button J
Negligence - unknown malefactors moved traffic barriers hired by Council for use in road works - plaintiff injured when he collided with barriers while riding motorbike along road - ss5B, 5C, 5D, 5E & 45 Civil Liability Act 2002 (NSW) - s7(4) Roads Act 1993 (NSW) - s45E Transport Administration Act 1988 (NSW) - held: Council not protected by statutory immunity contained in s45 Civil Liability Act 2002 (NSW) - Council did not owe duty of care to forestall crimes of others that harmed plaintiff - judgment for Council.
Rankin (I C)
Oakes v Oakes [2014] NSWSC 1312
Supreme Court of New South Wales
Pembroke J
Succession - statutory construction - divorced former daughter-in-law of deceased sought family provision from deceased's Will - unusual claim - member of household - s57(1)(e) Succession Act 2006 (NSW) - held: Court satisfied plaintiff was a member of the household of which the deceased was a member - plaintiff was effectively dependent on deceased until he died - plaintiff had spent most of her adult life living and working in tripartite relationship with deceased and ex-husband - plaintiff's financial circumstances were penurious - Court satisfied wise and just testator with knowledge of facts would have been prepared to make at least some modest provision for plaintiff - provision order made.
Oakes (B)
Fitzgerald v CBL Insurance Ltd [2014] VSC 493
Supreme Court of Victoria
Sloss J
Insurance contract - insolvency - rectification - company procured insurer to issue financial insurance policy in favour of ‘transferring employees' of businesses - under policy, insurer agreed to provide indemnity in respect of shortfall in ‘employee entitlements' in event of insolvency of company - company placed in liquidation following administration - insolvency deemed to have taken place as at date of administration - trustees made claims and demands under policy - construction of policy - employee entitlements owed as at deemed date for purposes of insurance policy - whether provisions of certified agreements enlivened - whether employee's jobs were made redundant - whether rectification sought by insurer required continuing common intention - interest under s57 Insurance Contracts Act 1984 (Cth) - claim for damages to recover time and cost in managing claims - proof of loss - held: trustees proved fact of loss to which policy responded - primary claim made for insured loss represented shortfall for 336 transferring employees identified - Court not satisfied trustees made out claim for time and costs involved in preparing and managing the claim.
Fitzgerald (I B)
Parry v Kennedy [2014] QCA 239
Court of Appeal of Queensland
Fraser JA, Applegarth and Boddice JJ
Subpoena - appellant solicitor sought that respondents pay him “$45,000 (or as otherwise assessed)” as reimbursement of loss and expense incurred in complying with subpoena requiring him to give evidence at trial - costs claimed were legal costs of obtaining advice from solicitor's firm and counsel - primary judge found solicitor's reasonable costs of complying with subpoena amounted to $800.00 and ordered respondents to pay solicitor that amount - primary judge also ordered that solicitor pay respondents' costs of application - held: no error in finding it was not reasonable for solicitor to seek independent advice about his compliance with subpoena - no failure to properly consider evidence - no miscarriage of discretion in decision as to amount respondents required to pay solicitor - open to primary judge to order solicitor to pay respondent's costs - appeal dismissed.
Parry (I)
Edwards v Tasmanian Mines Ltd [2014] TASSC 49
Supreme Court of Tasmania
Blow CJ
Workers compensation - eligibility for weekly compensation payments - worker injured in course of employment at 65 years old - s87 Workers Rehabilitation and Compensation Act 1988 (Tas) provided that, if injury occurred after worker attained 64 years, weekly payments were payable for only one year after date of injury unless Tribunal made determination under s87(3) that weekly payments may continue - employer ceased to make payments one year after date of injury - worker appealed from decision of Tribunal that, because of the wording of s87, it did not have jurisdiction unless matter was referred to it within first year after the date of the injury, whilst weekly payments were still being made - held: s87 was not intended to limit eligibility for weekly payments in the way that the Chief Commissioner held it did - Commissioner erred in finding Tribunal did not have jurisdiction to deal with worker's referral - appeal allowed - determination set aside - matter remitted.
Edwards (I G)
HSBC Bank Australia Ltd v V [2014] WASC 359
Supreme Court of Western Australia
Chaney J
Caveat - joinder - cross-vesting - bank sought order that caveat lodged by first defendant over two properties be removed - bank held mortgages over properties and obtained judgment in possession action - settlement of bank's contract of sale of properties delayed due to caveat - first defendant claimed to have caveatable interest pursuant to Family Court orders - first defendant sought extension of caveat and transfer of proceedings to Family Court pursuant to ss5(4)(b)(i) & 5(4)(b)(iii) Jurisdiction of Courts (Cross-vesting) Act 1987 (WA) - first defendant also sought to be joined as a third defendant to possession action - held: no foundation to set aside orders for possession or remit the now completed possession action to Family Court - joinder refused - caveat removed pursuant to s138(2) Transfer of Land Act 1893 (WA).
HSBC Bank Australia Ltd (B)