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

Insurance, Banking, Construction & Government

Wednesday, 10 December 2014

Executive Summary (One Minute Read)
Bagg v Gordon as liquidator of Salfa Pty Ltd (in liq) (NSWCA) - service - leave to proceed against non-resident defendant - leave to appeal refused (B)
Powell v Stone (NSWSC) - real property - right to proceeds of sale under Family Court order did not create caveatable interest in property (B)
Lewance Construction Pty Ltd v Southern Han Breakfast Point Pty Ltd (NSWSC) - security of payments - failure to establish that payment schedule not provided - summons dismissed (C) 
Bowering v Knox and Bowering (No 2) (NSWSC) - Wills - special disability trust - construction questions answered - relief refused on grounds of lack of utility (B)
Little v McCarthy (QSC) - damages - motor vehicle accident - economic loss - damages assessed (I)
Findley v Morand (QSC) - defamation - extension of time to bring proceedings granted (I)
Insurance Australia Ltd t/as NRMA Insurance v Iuli (ACTCA) - insurance - insurer's appeal from interlocutory decision of Master incompetent (I)
Summaries With Link (Five Minute Read)
Bagg v Gordon as liquidator of Salfa Pty Ltd (in liq) [2014] NSWCA 420
Court of Appeal of New South Wales
Ward JA & Sackville AJA
Service - applicant was former director of company in liquidation - respondent was liquidator of company - applicant resident in South Africa - applicant sought leave to appeal from interlocutory decision granting leave to proceed against him - held: Court accepted applicant had arguable case he was not served with initiating process in South Africa in conformity with requirements of r11.6 Uniform Civil Procedure Rules 2005 (NSW) - Court also prepared to accept applicant had arguable case that r10.14(3) did not apply to a defendant outside jurisdiction - however, other considerations militated against grant of leave, including applicant's delay in filing summons and strong argument that applicant had already submitted to Court's jurisdiction - no significant prejudice if leave to appeal refused - leave to appeal refused.
Bagg (B)
Powell v Stone [2014] NSWSC 574
Supreme Court of New South Wales
Brereton J
Real property - caveat - plaintiff husband sought an order that defendant wife withdraw a caveat lodged over certain property - underlying the claim were orders made between parties in Family Court of Australia - caveat claimed an interest as a person with a right to have the land sold and to receive a portion of the proceeds of sale - held: a right to proceeds of sale of property was not an interest in property - wife never had an interest in land - husband ordered to sell land and had obligation akin to that of a trustee for sale to do so and account for proceeds including in part to wife - no caveatable interest in the land itself - caveat doomed to fail and was eventually removed by agreement - wife to pay husband's costs.
Powell (B)
Lewance Construction Pty Ltd v Southern Han Breakfast Point Pty Ltd [2014] NSWSC 1726
Supreme Court of New South Wales
Nicholas AsJ
Security of payments - plaintiff sought judgment against first defendant (SHBP) under s15(2)(a)Building and Construction Industry Security of Payment Act 1999 (NSW) - plaintiff claimed it was entitled to recover amount claimed as a debt due as consequence of failure of SHBP to provide payment schedule to plaintiff within time prescribed under s14(4), or at all - held: plaintiff failed to establish that payment schedule was not provided by SHBP - summons dismissed.
Lewance Construction Pty Ltd (C)
Bowering v Knox and Bowering (No 2) [2014] NSWSC 1749
Supreme Court of New South Wales
Sackar J
Wills - plaintiff sought determination of Court in relation to proper construction of father's Will - plaintiff and first defendant were joint trustees and executors of the estate, and also beneficiaries - Will purported to establish a special disability trust for benefit of the second defendant brother of both plaintiff and first defendant - first defendant was sole trustee of trust - construction of Will - public policy - position of special trustee - conflict of interest - consistency of clauses with primary objects of trust - held: construction questions answered but Court not persuaded it was appropriate to grant declaratory relief as it appeared futile.
Bowering (B)
Little v McCarthy [2014] QSC 274
Supreme Court of Queensland
McMeekin J
Damages - motor vehicle accident - first plaintiff claimed damages for personal injuries suffered in motor vehicle accident - liability admitted - plaintiff sought large amount of damages, just over $1,000,000 - defendants contended proper assessment should be quite modest - a little over $60,000 - first plaintiff's case had none of the usual features associated with a million dollar personal injuries' claim - contest principally over economic loss - application of provisions in Civil Liability Act 2003 (Qld) and Civil Liability Regulation 2003 (Qld) - credit - effect of injury on earning capacity - damages assessed at $254,560.42.
Little (I)
Findley v Morand [2014] QSC 297
Supreme Court of Queensland
A Wilson J
Limitations - defamation - applicant had rented property from respondents - applicant sought extension of time to bring defamation proceedings against respondents arising from alleged posting of entries in tenancy database - first entry lodged 9/3/11 - second entry lodged 25/1/12 - ss10AA & 32A Limitation of Actions Act 1974 (Qld) - whether not reasonable in circumstances for plaintiff to have commenced action in relation to matter complained of within one year from the date of publication - held: applicant's evidence sufficient to establish t he was not alerted to alleged defamatory statements in the database until June 2014 - too late to save any remedy he might have had in respect of first entry on 9/3/11 as three year period had already expired by time applicant discovered it however extension of time warranted under s32A to permit him to file proceedings for defamation by 25/1/15.
Findley (I)
Insurance Australia Ltd t/as NRMA Insurance v Iuli [2014] ACTCA 50
Court of Appeal of New South Wales
Penfold, Burns & Ross JJ
Insurance - motor vehicle accident - vehicle ran out of control - first defendant cyclist injured when he fell from bike after colliding with debris created by accident 40 minutes later when vehicle was still in position but not moving - driver held a CTP policy with appellant insurer issued under Road Transport (Third Party Insurance) Act 2008 (ACT) - Master refused to declare that accident involving cyclist was not a motor accident within the meaning of s7 - held: appeal to Court of Appeal was not competent - Master's refusal of declaration sought by appellant was an interlocutory order - any appeal lay, not to the Court of Appeal, but to a single judge of the Supreme Court - matter not within jurisdiction of Court of Appeal and should be referred to single judge for further consideration.
Insurance Australia Ltd t/as NRMA Insurance (I)