Daily Insurance: Tuesday, 10 November 2015
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AR Conolly Company Lawyers.
A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Daily Insurance

Executive Summary (One Minute Read)
Shephard v Robson (FCA) - bankruptcy - trusts and trustees - part of settlement amount was damages or compensation for applicant’s personal injuries and therefore “exempt money”
Brinca Property Management Pty Ltd v Fibre Tek Global Pty Ltd (NSWSC) - landlord and tenant - valid termination of lease for non-payment of rent in breach of essential term
Babcock & Brown DIF III Global v Babcock & Brown International Pty Ltd (VSC) - legal practitioners - conflict of interest - resolution of dispute concerning terms of undertakings and costs
Nichols v Earth Spirit Home Pty Ltd (QCA) - building contract - no error in decision that oral building contract was enforceable - leave to appeal granted - appeal dismissed
Summaries With Link (Five Minute Read)
Shephard v Robson [2015] FCA 1194
Federal Court of Australia
Murphy J
Bankruptcy - applicant bankrupt sought declarations trustee in bankruptcy - applicant sought that amount paid to him in settlement of court proceedings be declared “exempt money” under s116 Bankruptcy Act 1966 (Cth) on basis it was damages or compensation for personal injury or wrong - applicant also sought that 10/12th interest in property he purchased with part of settlement sum be declared exempt from division between creditors because it was purchased with exempt money - property had been sold at trustee’s direction - held: Court satisfied about 6% of settlement sum represented damages or compensation for applicant’s personal injuries and was exempt money, and that 6% of applicant’s outlay on property was exempt money - fair to attribute 6% of 10/12th part of net proceeds of sale of property to exempt money used in purchase -t amount was not divisible between creditors - trustee to file further evidence as to amount of net proceeds of sale.
Brinca Property Management Pty Ltd v Fibre Tek Global Pty Ltd [2015] NSWSC 1628
Supreme Court of New South Wales
Ball J
Landlord and tenant - plaintiff sought declaration it was entitled to terminate lease of strata titled motel to first defendant, damages and order for writ of possession - plaintiff had purported to terminate lease for non-payment of rent - first defendant accepted it had not paid rent but contended plaintiff wrongfully failed to credit it for amounts plaintiff received from EFTPOS transactions using machine it installed in motel - whether breach by plaintiff of first defendant’s right to quiet enjoyment - held: even assuming plaintiff breached obligation of quiet enjoyment, Court not satisfied defendant suffered any substantial damages - first defendant in default with payment of rent in breach of essential term of lease - even if first defendant entitled to set off of amounts, first defendant in arrears at time plaintiff purported to terminate - payment of rent an essential term of the Lease - plaintiff entitled to terminate for breach of essential term - termination was valid - orders made
Babcock & Brown DIF III Global v Babcock & Brown International Pty Ltd [2015] VSC 612
Supreme Court of Victoria
Riordan J
Legal practitioners - conflict of interest - Court dismissed defendants’ application to retrain law firm and employee solicitor from further acting for plaintiffs - dispute arose concerning undertakings to be given and costs - adequacy and terms of undertakings - Information Barrier Protocol - risk of inadvertent disclosure of confidential information - overarching duties under Civil Procedure Act 2010 (Vic) - duty to cooperate - held: not appropriate for employee solicitor to physically separate to another floor - arrangements proposed by law firm were adequate - law firm substantially successful on matters in dispute on hearing - taking into account all relevant considerations appropriate that parties bear own costs.
Nichols v Earth Spirit Home Pty Ltd [2015] QCA 219
Court of Appeal of Queensland
M McMurdo P, Philipides JA & Boddice J
Building contract - applicant sought leave to appeal against Queensland Civil and Administrative Tribunal decision to uphold enforcement of oral building contract between applicant and respondent - respondent sought to support decision on basis it was entitled to recover judgment sum on restitutionary basis - whether wholly oral building contract enforceable under provisions of Queensland Building and Construction Commission Act 1991 (Qld) and public policy - ss67E(2) & 67G - held: Appellate Tribunal correctly found oral contract not unenforceable due to fact respondent committed offence by entering building contract which was not reduced to writing - Appeal Tribunal also correctly found nothing in s67E(2) required finding that contract was unenforceable - no good reasons of public policy to support conclusion contract unenforceable - leave to