Insurance, Banking, Construction & Government: Wednesday, 8 July 2015 View in browser
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AR Conolly Company Lawyers.
A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Daily Composite

Insurance, Banking, Construction & Government

Executive Summary (One Minute Read)
Norris v Routley (NSWSC) - damages - compensation to relatives - assessment of damages - matter relisted (I)
Carangelo v State of NSW (No 2) (NSWSC) - costs - offers of compromise - genuine offer of compromise - indemnity costs ordered (I)
Warriner v Warriner (VSC) - testator’s family maintenance - responsibility to make provision - freedom of testation - claim dismissed (B)
Papale v Sucrogen Ltd (QSC) - joinder - contract - application to join third party to proceedings dismissed (I B)
Rodda v Ian Rodda Pty Ltd; Ian Rodda Pty Ltd v Rodda (SASC) - estoppel - equity - contract - family dispute concerning farming land and business - detrimental reliance on representations - remedies (I B)
Laing O'Rourke Australia Construction Pty Ltd v Samsung C & T Corporation (WASC) - construction contract - adjudicator misapprehended nature of function - determinations invalid and quashed (B C G)
Nitschke v Medical Board of Australia (NTSC) - administrative law - suspension of registration as medical practitioner - Tribunal’s decision set aside (I G)
Summaries With Link (Five Minute Read)
Norris v Routley [2015] NSWSC 883
Supreme Court of New South Wales
Harrison J            
Damages - deceased was late husband of plaintiff -  deceased died of liver disease -plaintiff brought proceedings on own behalf and on behalf of deceased’s estate claiming damages under Compensation to Relatives Act 1897 - deceased was suitable candidate for liver transplant that would have saved and prolonged  life - death caused by defendant’s negligent failure to arrange surgery in proper and timely way - liability admitted - determination of quantum of damages to which plaintiff entitled - resolution of series of competing factual disputes - held: Court did not perform final calculations - matter relisted for directions and final orders.
Norris (I)
Carangelo v State of NSW (No 2) [2015] NSWSC 889
Supreme Court of New South Wales
Adamson J
Costs - Court gave judgment for defendant in proceedings - defendant sought indemnity costs on basis of three offers of compromise - held: each of the three offers complied with r20.26 Uniform Civil Procedure Rules 2005 as it was at time each offer made - held:  Court not persuaded to otherwise order in relation to second offer - second offer complied with applicable rules - Court satisfied offer represented a genuine compromise at the time the offer was made - indemnity costs ordered.
Carangelo (I)
Warriner v Warriner [2015] VSC 314
Supreme Court of Victoria
Zammit J
Testator’s family maintenance - oldest son of deceased made claim under Pt IV Administration and Probate Act 1958 - deceased’s estate consisted of property - deceased devised and bequeathed property to defendant - s91 - whether deceased had responsibility to make provision - adequacy of provision - held: taking into account circumstances including size of estate, plaintiff’s relationship with deceased, plaintiff’s financial need, defendant’s mental health and pivotal role of property in maintaining defendant’s stability, Court did not consider it should interfere with freedom of testation - application dismissed.
Warriner (B)
Papale v Sucrogen Ltd [2015] QSC 192
Supreme Court of Queensland
Bond J
Joinder - plaintiffs were sugar growers who sued defendant sugar miller for conduct in breach of contractual obligations - miller sought to join company as third party  pursuant to r194(2) Uniform Civil Procedure Rules 1999 or that growers’ proceeding and separate proceedings to be commenced by miller against company be heard together pursuant to r79 - held: Court not persuaded potential overlap between evidence which might be adduced in both proceedings justified exercise of discretion to give leave to issue third party proceeding, or to order that proceedings be heard together - no reason why miller could not commence separate proceeding against company - miller would suffer no great prejudice if proceeding not heard at same time - miller’s proposed course would introduce undue complication, cost and delay - insufficient explanation for delay in bringing application - application dismissed.
Papale (I B)
Rodda v Ian Rodda Pty Ltd; Ian Rodda Pty Ltd v Rodda [2015] SASC 95
Supreme Court of South Australia
Nicholson J
Estoppel - equity - contract - family dispute between father and son concerning farming land and farming business - legal title to components of land held or controlled by father - business conducted through discretionary trusts under father’s control - first plaintiff son and wife sought proprietary remedies recognising beneficial ownership of land and plant and equipment - son and wife also asserted an entitlement, with respect to money owing under beneficiary accounts of two trusts - estoppel by encouragement - constructive trusts - held: defendants made representations to plaintiffs through father regarding son’s future ownership of land and equipment - defendants had resiled from representations - son and wife had reasonably relied on representations to detriment - no conduct to disentitle plaintiffs from equity’s protection - plaintiffs entitled to a proprietary remedy - father had forgiven loan to plaintiffs and amount was no longer owing - judgment for plaintiffs
Rodda (I B)
Laing O'Rourke Australia Construction Pty Ltd v Samsung C & T Corporation [2015] WASC 237
Supreme Court of Western Australia
Mitchell  J
Construction contract - parties entered into a Subcontract - Samsung terminated subcontract for convenience - parties entered into an 'Interim Deed' which provided Samsung make payments to Laing O’Rourke - one payment made under Interim Deed - adjudicator appointed under Construction Contracts Act 2004 (WA) determined Samsung must pay Laing O’Rourke amount - Samsung sought to quash determinations for jurisdictional error -  held: adjudicator committed jurisdictional error by failing to resolve payment disputes by reference to terms of Subcontract before him - adjudicator misapprehended nature of his function - determinations not authorised by Act and invalid - leave to enforce the determinations refused.
Laing (B C G)
Nitschke v Medical Board of Australia [2015] NTSC 39
Supreme Court of the Northern Territory
Hiley J
Administrative law - Immediate Action Committee (IAC) of Medical Board decided to suspend appellant’s registration as a medical practitioner pursuant to s156 of the National Law - appellant appealed to Health Professional Review Tribunal pursuant to s199(1)(h) - Tribunal confirmed IAC decision - immediate action regime - conduct - held: Tribunal erred in law by taking into account irrelevant considerations - appellant also denied procedural fairness - Tribunal misconstrued the Code in relation to obligations standards and duties asserted by Board - no basis for Tribunal or Board to form a reasonable belief of kind required by s156(1) National Law that because of conduct appellant posed serious risk to persons and it was necessary to take immediate action to protect public health or safety - Tribunal’s decision set aside
Nitschke (I G)