Insurance, Banking, Construction & Government Tuesday, 10 March 2015 View in browser

A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.
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Executive Summary (One Minute Read)
Ell, Richard Austin v Ell, Stephen Maxwell (NSWCA) - Wills – testator intended to release debt unconditionally under Will (I B)
Ramsay Health Care Australia Pty Ltd v Compton (NSWSC) – contract - signatures on signing pages bound party to guarantee – plea of non est factum failed (I B)
Philip v JPM Developments Pty Ltd (NSWSC) – easements – substantial interference with right of carriageway by proposed development works – declaration and injunction (B C)
Australian Vintage Ltd v Belvino Investments No. 2 Pty Ltd (as trustee of the McGuigan Simeon Trust ABN 76965280510) (NSWSC) – commercial lease of vineyard – expert determination clause - expert’s determination not set aside (I B)
Campbelltown City Council v WSN Environmental Solutions Pty Ltd (NSWSC) – contract – dispute resolution regime – declaration that party not entitled to refer dispute to expert refused (I B C)
Chan v First Strategic Development Corporation Ltd (in liq) (QCA) – corporations – factual findings open to primary judge– appeal dismissed (I B)
Simmons v Love (WASC) – contract for sale of land – buyers’ claim for damages for late settlement dismissed (I B C)
Summaries With Link (Five Minute Read)
Ell, Richard Austin v Ell, Stephen Maxwell [2015] NSWCA 38
Court of Appeal of New South Wales
Basten, Ward & Gleeson JJA
Wills - contract - estoppel - testator made will in 2002 - left estate to his four children in equal shares -  clause of Will purported to release appellant from liability for money owed to testator on the security of appellant’s house - security not provided - testator died in 2007 - siblings signed agreement in which debt reduced on condition appellant pay amount into managed fund - appellant did not do so - siblings terminated agreement in 2009 - estate distributed on assumption full debt owed - primary judge found Will did not release debt which was payable to estate once agreement terminated - held: testator intended to release debt unconditionally - clause effectively released debt even though no security provided - neither agreement nor circumstances of signing revealed parties shared common assumption debt owed - respondents could not rely on agreement to estop appellant from arguing release of debt under Will - appeal allowed.
Ell, Richard Austin (I B)
Ramsay Health Care Australia Pty Ltd v Compton [2015] NSWSC 163
Supreme Court of New South Wales
Hammerschlag J
Contract – non est factum – plaintiff sued second defendant pursuant to guarantee and indemnity – plaintiff alleged second defendant bound himself as guarantor in terms of written agreement – second defendant appended signature to document headed Signing page – plaintiff later signed an electronically transmitted copy of same page bearing signature – second defendant appended signature to a second Signing page in same form – plaintiff claimed that by signatures second defendant bound himself to guarantee - second defendant denied signature on Signing pages were assent as Signing pages did not pertain to guarantee but were signed as stand-alone documents intended to signify assent to different proposed guarantee under which he had no personal liability to plaintiff – held: objectively viewed both Signing pages were assent by second defendant to guarantee – plea of non est factum failed – second defendant’s mind went with his signature - judgment for plaintiff.
Ramsay Health Care Australia Pty Ltd (I B)
Philip v JPM Developments Pty Ltd [2015] NSWSC 145
Supreme Court of New South Wales
Sackar J
Real property – easements – plaintiffs sought declaration that defendant owner of servient tenement would contravene their right of carriageway by carrying out work under development consent – plaintiff also sought to restrain defendant from carrying out any work – held: Court satisfied that there would be substantial interference to plaintiffs’ rights of carriageway if proposed work went ahead – it was appropriate to grant declaratory and injunctive relief.
Philip (B C)
Australian Vintage Limited v Belvino Investments No. 2 Pty Ltd (as trustee of the McGuigan Simeon Trust ABN 76965280510) [2015] NSWSC 168
Supreme Court of New South Wales
Rein J
Commercial lease – expert determination clause - plaintiffs leased vineyard from first defendant – clause of lease provided means of dealing with external events resulting in significant crop loss and which permitted plaintiffs to terminate lease or require remedial work if threshold reached – clause included possibility of appointment of expert to determine relevant matters – plaintiffs claimed expert misunderstood task and sought declaration that expert determine matters afresh – whether Court could intervene – estoppel - held: even if Court persuaded it could set aside expert’s determination if it was satisfied expert’s interpretation incorrect, Court would not be persuaded it was appropriate to do so – relief refused.
Australian Vintage Limited (I B)
Campbelltown City Council v WSN Environmental Solutions Pty Ltd [2015] NSWSC 155
Supreme Court of New South Wales
Sackar J
Contract – dispute resolution clause – Councils entered contract with waste management services company – dispute concerned interaction between two dispute resolution clauses – Councils sought declaration defendant was not entitled to refer to an expert a dispute concerning whether it should be compensated for an alleged reasonably unforeseeable and unforeseen event – construction of contract – dispute resolution regime – jurisdiction of expert and questions of commerciality  - held: each dispute resolution regime was to be self-contained - construction proposed by defendant to be preferred – Councils refused relief sought – appropriate to grant relief sought by waste management services company.
Campbelltown City Council (I B C)
Chan v First Strategic Development Corporation Ltd (in liq) [2015] QCA 28
Court of Appeal of Queensland
Gotterson & Morrison JJA; Boddice J
Corporations – Court gave judgment against appellants and ordered them to pay company sums pursuant to s588M(2) Corporations Act 2001 (Cth) – appellants challenged three central factual findings which led to primary judge’s conclusion – finding that company was insolvent at times certain debts were incurred  – finding that first and second appellant directors and third appellant had reasonable grounds for suspecting company insolvent - findings that second and third appellants were unable to establish defences under ss588H(2) or 588H(4) – held: findings open to primary judge and supported by evidence – appeal dismissed.
Chan (I B)
Simmons v Love [2015] WASC 79
Supreme Court of Western Australia
Beech J
Contract for sale of land – buyers initially sued for specific performance of contract for sale of land – seller initially defended action on basis contract unenforceable because it contravened Planning and Development Act 2005 (WA) and that general condition not fulfilled - parties settled on sale and purchase transaction but were in dispute over amount claimed by buyers as damages for late settlement, costs of action and costs of earlier proceedings brought by buyers – held:  on date of settlement  buyers were not ready, willing and able to settle on contract in accordance with its terms – buyers’ claim dismissed – sellers’ counterclaim also dismissed.
Simmons (I B C)