Daily Insurance: Thursday, 10 March 2016
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AR Conolly Company Lawyers.
A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

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Executive Summary (One Minute Read)
Woodlawn Capital Pty Ltd v Motor Vehicles Insurance Ltd (NSWCA) - contract - proceedings arising from termination of agreements for provision of investment and asset management services - appeal allowed in part - cross-appeal dismissed
Nitro Circus Touring Australia Pty Ltd v Ilaria Lenzoni (NSWSC) - service - contract - service on defendant in Italy - Italian Authority's certificate of service substantially complied with approved form - plaintiff entitled to default judgment
Investec v Butterss (VSC) - banking - facility agreement - assignment - plaintiff entitled to judgment against first defendant for payment of amount owing pursuant to guarantee
Tull v Wolfe (WASC) - summary judgment - defamation - plaintiff pursuing claims against defendants which were subject of absolute privilege - summary judgment granted to defendants
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Benchmark Television
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The Hon. Ian Coleman SC on de facto relationships in family law with Dasith Vithanage
This is one hour five minutes of gold. There is no better commentator on family law than Ian Coleman. Everyone should watch – all the family.
Summaries With Link (Five Minute Read)
Woodlawn Capital Pty Ltd v Motor Vehicles Insurance Ltd [2016] NSWCA 28
Court of Appeal of New South Wales
Macfarlan, Ward & Gleeson JJA
Contract - insurance - appellant provided investment and asset management services to respondent - appellant contended agreements' early termination entitled it to retain funds held on trust for respondent for repayment of early termination fees and accrued fees - primary judge held that while there was a statutory right of rescission in respondent's favour, respondent had lost statutory right by not exercising it within a reasonable time and by affirming agreements - primary judge also found agreements validly terminated for default and appellant entitled only to certain accrued fees - appellant challenged orders in relation to pre-judgment interest and costs - respondent contended it had not lost right to rescind agreements - held: appeal dismissed except in relation to operation of indemnity clause to release costs concerning certain issues - cross-appeal dismissed.
Woodlawn
Nitro Circus Touring Australia Pty Ltd v Ilaria Lenzoni [2016] NSWSC 178
Supreme Court of New South Wales
Hammerschlag J
Service - default judgment - contract - plaintiff sued defendant for amount owing under agreement in which plaintiff granted defendant right to present and promote show - plaintiff sought default judgment - defendant resided in Italy - whether defendant validly served with process by post effected by Italian Authority - Arts 3 - 6 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters - s80 Interpretation Act 1987 (NSW) - s17 Civil Procedure Act 2005 (NSW) - Pt 6 r 6.9(1), Pt 11 rr 11A.1, 11A.3(1), 11A.4(1), (2), 11A.5(1), 11A.6(1), (2), (3), 11A.8, 11A.10 Uniform Civil Procedure Rules 2005 (NSW) - held: certificate of service provided by Italian Authority diverged from approved form but substantially complied with it - process validly served - plaintiff entitled to default judgment.
Nitro Circus
Investec v Butterss [2016] VSC 80
Supreme Court of Victoria
Digby J
Banking - facility agreement - plaintiff sought recovery from first defendant under guarantee and indemnity - novation of facility agreement - assignment of facility agreement, novated facility agreement and guarantee from company to plaintiff - held: plaintiff's demand made to first defendant in accordance with guarantee was properly made - first defendant had failed to make payment in accordance with demand - judgment for plaintiff.
Investec
Tull v Wolfe [2016] WASC 65
Supreme Court of Western Australia
K Martin J
Defamation - two summary judgment applications by defendants in actions brought by common plaintiff - defendants were company and employee of company - actions arising from statement by statements allegedly made by employee - defendants contended actions were hopeless and unarguable - absolute privilege - s27 Defamation Act 2005 (WA) - plaintiff's grievance concerned defendant employee's witness statement prepared for use in unfair dismissal proceedings brought by plaintiff against defendant company in Fair Work Commission - held: Fair Work Commission was an “Australian Tribunal” under s4 - plaintiff was hopelessly pursuing claims which were subject of absolute privilege under s27 - summary judgment granted.
Tull