| Kubovic v HMS Management Pty Ltd (NSWCA) - negligence - work injury damages - no error in finding of contributory negligence, admission of surveillance evidence, or assessment of damages for future economic loss - appeal dismissed (I) |
| Quach v Health Care Complaints Commission (No 2) (NSWCA) - costs - order against litigant in person - “delinquency” - indemnity costs ordered in Commission’s favour (I G) |
| Mustica Holdings Pty Ltd v Lotus Almonds Pty Ltd (VSC) - trusts and trustees - appointment of replacement trustee - conflict of interest - expediency - welfare of trust’s beneficiaries - replacement trustee appointed (B) |
| Traditional Values Management Ltd (in liq) v Who Investments Pty Ltd (VSC) - pleadings - trusts and trustees - claim for repayment of money mistakenly paid to defendants - conduct against conscience of payer and payee - defendants granted leave to amend further amended defence and counterclaim (B) |
| Stevens v Hamilton (QSC) - succession - trusts and trustees - funds held in investment account were property of deceased at time of death, not property of trust fund (B) |
| Tom’s Cranes Pty Ltd v Secure Funding Pty Ltd (WASC) - interlocutory injunction granted preventing defendants from hindering plaintiffs’ access to their assets on defendants’ property (B C) |
| Gardam v WTH Pty Ltd (TASSC) - contract - insurance - vehicle rental agreement - loss damage waiver option - exclusion clause relating to blood alcohol level - hirer liable for damage to vehicle (I B) |
| Summaries With Link (Five Minute Read) |
Kubovic v HMS Management Pty Ltd [2015] NSWCA 315
Court of Appeal of New South Wales
McColl & Ward JJA; Adamson J
Negligence - work injury damages - contributory negligence - procedural fairness - appellant injured in accident in course of employment with respondent - appellant sued respondent in negligence for damages for injuries - primary judge found for appellant - claim confined to damages for past and future loss of earnings - damages assessed at $107,951 taking into account 20% deduction for contributory negligence - appellant appealed - ss3B, 5B, 5D &12 - 14 Civil Liability Act 2002 (NSW) - ss151G, 151H & 151N Workers Compensation Act 1987 (NSW) - held (by majority): no error in finding of contributory negligence - primary judge did not err in permitting surveillance evidence to be adduced - primary judge did not fall into error in assessing weight to be placed on opinions of appellant’s medical experts, or appellant’s evidence in light of surveillance evidence - no error in approach to assessment of damages for future economic loss by way of buffer - appeal dismissed
Kubovic (I)
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Quach v Health Care Complaints Commission (No 2) [2015] NSWCA 311
Court of Appeal of New South Wales
Meagher JA
Costs - notices of motion filed by practitioner dismissed with costs - practitioner was litigant in person - Health Care Complaints Commission sought payment of costs on indemnity basis - s98 Civil Procedure Act 2005 (NSW) - competing interests to be considered when indemnity costs sought against litigant in person - held: practitioner’s conduct met description of type of “delinquency” justifying indemnity costs - Commission informed practitioner of unlikelihood of success in pursuing claims for interlocutory relief - Commission informed practitioner by letter of intention to seek indemnity costs if he continued to press applications - costs incurred by Commission from date of letter and in relation to notices of motion assessed on indemnity basis.
Quach (I G)
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Mustica Holdings Pty Ltd v Lotus Almonds Pty Ltd [2015] VSC 531
Supreme Court of Victoria
Sifris J
Trusts and trustees - proceedings instituted which sought order under s48(1) Trustee Act 1958 (Vic) appointing new trustee in substitution of first defendant as trustee of trust - removal of trustee not opposed - second defendant opposed appointment of replacement trustee - opposition based on contention there was conflict of interest in appointing replacement trustee - held: Court accepted there was potential for conflict of interest but that trustee’s obligations and broad reach of liberty to apply order would enable interested parties to seek relief - appointment of trustee expedient and in welfare of trust’s beneficiaries - replacement trustee appointed.
Mustica (B)
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Traditional Values Management Ltd (in liq) v Who Investments Pty Ltd [2015] VSC 518
Supreme Court of Victoria
Sifris J
Pleadings - trusts and trustees - plaintiff sought to recover money mistakenly paid to defendants - defendants sought to amend further amended defence and counterclaim - plaintiffs contended certain paragraphs plainly unarguable and leave should not be granted to incorporate them - held: relevant inquiry was conduct against conscience of payer and payee - paragraphs not so extravagant that they lacked justification or proper basis - defendants entitled to assert payer’s conduct precluded recovery - amendments allowed.
Traditional (B)
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Stevens v Hamilton [2015] QSC 279
Supreme Court of Queensland
Boddice J
Succession - trusts and trustees - applicant sought order pursuant to s96 Trusts Act 1973 (Qld) as to how he as executor of deceased’s Will and trustee of trust fund should treat funds held in investment account - proper interpretation of Will - whether funds were asset of deceased’s estate or of trust - held: words in clause of Will neither meaningless nor ambiguous - no evidence funds in investment account were ever trust fund’s property - funds were property of deceased at time of death.
Stevens (B)
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Tom’s Cranes Pty Ltd v Secure Funding Pty Ltd [2015] WASC 374
Supreme Court of Western Australia
Simmonds J
Interlocutory injunction - application for orders preventing defendants from 'hindering' plaintiffs obtaining access to properties of defendant to remove certain personal property of plaintiffs and restraining defendant from removing, disposing, or otherwise dealing plaintiffs’ personal property - serious question to be tried - balance of convenience - adequacy of damages - held: plaintiffs had made out apparently strong case - balance of convenience favoured interlocutory relief - interlocutory injunction granted preventing defendants from hindering plaintiffs’ access to their assets on defendants’ property.
Tom's Cranes (B C)
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Gardam v WTH Pty Ltd [2015] TASSC 46
Supreme Court of Tasmania
Blow CJ
Contract - insurance - dispute between vehicle rental company and customer concerning damage to rented vehicle - appellant hired van from company - vehicle broke down - appellant contacted company and arranged for replacement vehicle to be sent to him - while waiting appellant and companions consumed alcoholic drinks - appellant failed to keep replacement vehicle on sealed portion of roadway - vehicle flipped and was damaged - appellant prosecuted and pleaded guilty to a charge on basis he was driving with blood alcohol concentration of 0.053% - it was offence to drive with blood alcohol concentration exceeding .05% - company sued appellant in Magistrates Court for damage to vehicle - Magistrate held that under parties' rental agreement appellant liable to pay company for damage - appellant appealed - loss damage waiver option - meaning of exclusion clause - applicability of s21 Road Safety (Alcohol and Drugs) Act 1970 (Tas) - held: Magistrate correctly applied contractual provisions - Magistrate correct to find s21 did not apply to case - appeal dismissed.
Gardam (I B)
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