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

Insurance, Banking, Construction & Government

Sunday, 11 January 2015

Executive Summary (One Minute Read)
Neale v Commonwealth Bank of Australia (NSWCA) - appeal - extension of time to seek dismissal for incompetency refused - dismissal for want of prosecution refused - guillotine order (B)
Eastbury v Genea Genetics (NSWSC) - limitations - claim against laboratory for failure to test for carrier status for genetic condition - extension of time granted (I)
Pittwater Council v Keystone Projects Group Pty Ltd (NSWSC) - security of payments - adjudicator made determination in good faith - summons dismissed (C)
Schultz v Bank of Queensland (QSC) - guarantee - equity - wife not relieved of obligations on basis of Yerkey v Jones (B)
Graham v Western Australian Planning Commission (WASCA) - real property -compulsory acquisition of land - Tribunal lacked jurisdiction to determine quantum (C G)
Ruckschloss v Simmons (ACTSC) - judicial review - appeal from answer to separate question dismissed (C G)
Joondanna Investments Pty Ltd v The Minister for Lands, Planning and the Environment (NTSC) - discovery - judicial review - documents not relevant to question in proceedings - application dismissed (C G)
Summaries With Link (Five Minute Read)
Neale v Commonwealth Bank of Australia [2014] NSWCA 443
Court of Appeal of New South Wales
Leeming JA
Appeal - competency - bank was successful judgment creditor in proceedings brought by applicant and his company - bank sought that appeal be dismissed as incompetent or for want of prosecution - requirement that, if well-funded, sophisticated, regular litigant is to object to competency of appeal brought by litigant in person, objection should be made promptly - ability to fund appeal - held: bank had not explained why it did not make prompt objection - extension of time to seek dismissal of proceedings as incompetent refused - appeal not self-evidently hopeless - severe prejudice if applicant denied right of appeal on merits of very substantial judgment - there had been some explanation for delay and non-compliance with Court procedure - no particular prejudice to bank - guillotine order made.
Neale (B)
Eastbury v Genea Genetics [2014] NSWSC 1793
Supreme Court of New South Wales
Hall J
Limitations - professional negligence - mental harm - plaintiffs were parents of two children born in 2008 and 2022 who were diagnosed with Fragile X syndrome - plaintiffs claimed damages in respect of genetic screening performed by defendant - plaintiffs sought order that limitation period for causes of action be extended pursuant to s60G Limitation Act 1969 (NSW) - particular facts and circumstances - alleged breach of duty by failure to test carrier status of plaintiff - prejudice - chances of fair trial - held: defendant did not establish discretion should be exercised against extension of time on basis of claimed actual or presumptive prejudice or that it was unlikely to have fair trial - limitation period extended.
Eastbury (I)
Pittwater Council v Keystone Projects Group Pty Ltd [2014] NSWSC 1791
Supreme Court of New South Wales
Hallen J
Security of payments - Council sought determination that adjudicator's determination was not a good faith exercise on part of adjudicator of responsibilities under s22 Building and Construction Industry Security of Payment Act 1999 (NSW) and was therefore void - held: adjudicator carried out task entrusted to him in good faith and gave reasons for his conclusion - adjudicator considered the matters he was required to consider in s22(2) - adjudicator lawfully exercised functions required for making of a valid determination under s22 - determination not void - no reason to restrain first defendant from taking steps to enforce determination, or to restrain second defendant from issuing adjudication certificate pursuant to s24 in respect of determination - summons dismissed.
Pittwater Council (C)
Schultz v Bank of Queensland [2014] QSC 305
Supreme Court of Queensland
Jackson J
Guarantee - plaintiff wife claimed she should be relieved of obligation to pay bank under guarantee she gave for loan made to family trust controlled by former husband - claim made in reliance on Yerkey v Jones equity - held: no special disadvantage - wife did not have any of the alleged material misunderstandings relied upon - no basis for alternative claim of unconscionable conduct by bank - claim dismissed - bank succeeded on counterclaim for possession.
Schultz (B)
Graham v Western Australian Planning Commission [2014] WASCA 234
Court of Appeal of Western Australia
Martin CJ, Buss JA & Beech J
Real property - compulsory acquisition of land - Commission applied to State Administrative Tribunal for determination of quantum of compensation payable to landowners as result of compulsory taking of their land - landowners sought order striking out proceedings on basis they were more appropriately dealt with by Supreme Court or that Tribunal lacked jurisdiction - Tribunal dismissed application - landowners sought leave to appeal - held: contention rejected that Tribunal lacked jurisdiction because there was no valid taking order in respect of land - contention upheld that there was no 'offer' of compensation from Commission in respect of three out of four lots, and that the making of offer was condition of Tribunal's jurisdiction to determine the quantum - appeal allowed to that extent - Tribunal exercised its discretion with respect to the striking out proceedings on erroneous assumption that it had jurisdiction to determine quantum - matter remitted to Tribunal for further consideration in respect of the proceedings relating to the one lot which fell within Tribunal's jurisdiction.
Graham (C G)
Ruckschloss v Simmons [2014] ACTSC 340
Supreme Court of the Australian Capital Territory
Penfold J
Judicial review - engineer sought judicial review of conduct of officers of Department of Environment and Sustainable Development - one officer was Construction Occupations Registrar - engineer claimed conduct would have effect on his work as an engineer - engineer sought interim injunction preventing officers continuing with proposed conduct pending determination of judicial review application - engineer appealed from Master's affirmative answer to separate question whether construction occupations registrar could impose conditions on licensed building surveyors relating to acceptance of advice from engineers or from named engineer - held: Court not persuaded Master erred in reasoning he applied in determining how to answer question stated, or that the question should have been answered “no” - appeal dismissed.
Ruckschloss (C G)
Joondanna Investments Pty Ltd v The Minister for Lands, Planning and the Environment [2014] NTSC 58
Supreme Court of the Northern Territory
Master Luppino
Discovery - judicial review - substantive proceedings sought declaration Exceptional Development Permit invalid - plaintiff sought discovery of documents from defendants - ss17, 24, 38, 42, 51 & 89 Planning Act (NT) - rr1.09 & 29.08 Supreme Court Rules (NT) - held: Court not satisfied requested documents were relevant to a “question” in proceedings - second pre-condition required by r29.08 not satisfied - application dismissed.
Joondanna Investments Pty Ltd (C G)