Insurance, Banking, Construction & Government: Friday, 14 August 2015 View in browser
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AR Conolly Company Lawyers.
A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Daily Composite

Insurance, Banking, Construction & Government

Executive Summary (One Minute Read)
Waller v James (NSWCA) - medical negligence - appellants’ child disabled as result of stroke after birth - right to plan family and reproductive future - breach of duty - causation - remoteness of harm - appeal dismissed (I)
Calandra v Murden (NSWCA) - administrative law - solicitors’ costs - Magistrate had power to set aside judgment entered on filing of costs assessor’s certificates - appeal allowed (I G)
MIS Funding No 1 Pty Limited v Beefeater Sales International Pty Ltd (NSWSC) - loan agreement in connection with managed investment scheme - assignment - restitution - plaintiff entitled to judgment against defendants (I B)
Roche v Kigetzis (VSCA) - negligence - pedestrian struck by motor vehicle - driver liable - pedestrian’s contributory negligence 60% - leave to appeal refused (I)
Angeleska v State of Victoria (VSCA) - costs - respondents substantially successful on appeal - appellant to pay respondents’ costs of appeal and application for leave to appeal (I)
Re PJLJ Pty Ltd, Richard Dunstan Reynolds and Patphair Investments Pty Ltd (VSC) - real property - modification of three restrictive covenants granted (B C)
Pilton Holdings Pty Ltd v Essential Beauty Franchising (WA) Pty Ltd (SASCFC) - franchise agreement - master franchisor’s termination of agreement with master franchisee valid - appeal dismissed (I B)
Colin McPhillamy and Catherine McDonald on Advocacy and Theatre.  
Ian Latham and Dr Clinton Fernandes - Fighting Government Secrecy
Applying for records from the National Archives
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Summaries With Link (Five Minute Read)
Waller v James [2015] NSWCA 232
Court of Appeal of New South Wales
Beazley P; McColl & Ward JJA
Medical negligence - wrongful birth – IVF - plaintiffs’ child was profoundly disabled as result of stroke shortly after birth - plaintiffs contended their child’s genetic condition contributed to stroke - plaintiffs alleged gynaecologist breached contract and duty of care to plaintiffs for failure to inform them of nature of condition – plaintiffs alleged they would not have used father’s sperm for IVF procedure - plaintiffs claimed damages for involvement in IVF procedure and pregnancy and for psychiatric and physical injuries resulting from child’s injuries and disabilities - primary judge found in favour of gynaecologist - primary judge found gynaecologist breached duty of ensuring provision of information relating to the inheritability of condition but scope of duty did not extend to harm suffered and appellants failed to establish stroke was a result of the genetic condition - appellants contended on appeal that as result of negligence they suffered deprivation of right to plan family and reproductive future - held: no error in challenged factual findings - infringement of appellants’ right to plan family could give rise to claim for economic loss - appellants’ harm not causally connected to gynaecologist’s breach of duty - harm suffered as a result of stroke was not within scope of the risk created by negligence and not relevantly foreseeable - harm was too remote to be recoverable - appeal dismissed.
Waller (I)
Calandra v Murden [2015] NSWCA 231
Court of Appeal of New South Wales
Beazley P, Meagher & Leeming JJA
Administrative law - solicitors’ costs - respondent filed form headed “Filing of Certificate of Order” in Local Court attaching two costs assessor’s certificates issued under Ch 3, Pt 3.2, Div 11 Legal Profession Act 2004 (NSW) - judgment entered in Local Court in respondents’ favour against applicants on same day - applicants claimed that at time of costs assessment and filing certificate there were no costs ‘unpaid’ because respondent had released them from liability under Deed of Release and Indemnity - Magistrate set aside Local Court judgment on basis it had not been entered in good faith - whether Magistrate had power to set judgment aside - held: Magistrate plainly had power under r36.15 Uniform Civil Procedure Rules 2005 (NSW) and its implied power to set aside “judgment” and filing of form attaching costs certificates - form should not have been filed and or accepted had respondent disclosed there was no amount of unpaid costs due - leave to appeal granted - appeal allowed.
Calandra (I G)
MIS Funding No 1 Pty Limited v Beefeater Sales International Pty Ltd [2015] NSWSC 1109
Supreme Court of New South Wales
Ball J
Contract - restitution - plaintiff sought to recover from first defendant amount owing under loan agreement made between third defendant as lender and first defendant as borrower - loan agreement entered in connection with registered managed investment scheme promoted by company which agreed to managed scheme in accordance with investment deed - plaintiff made claim as assignee of third defendant’s rights under loan agreement pursuant to loan transfer deed between plaintiff, third defendant and company - first defendant contended plaintiff had not established funds were advanced and that, even if funds paid to company, they were not paid to acquire “Hectares” as required by cl 11 of loan agreement - held: more likely than not that amount was advanced and paid directly to company as contemplated by cl 11 of loan agreement - company complied with c 11 of loan agreement - plaintiff entitled to judgment against each defendant.
Roche v Kigetzis [2015] VSCA 207
Court of Appeal of Victoria
Osborne & Kyrou JJA; Garde AJA
Negligence - contributory negligence - respondent injured when struck while crossing road lanes by a motor vehicle driven by applicant - traffic lights facing applicant were green at time of accident - respondent walking against a ‘red man’ pedestrian traffic signal - respondent sued applicant in negligence - primary judge found applicant negligent and respondent contributorily negligent to extent of 60 per cent - applicant sought to appeal - held: no error in conclusions as to duty or breach - path of reasoning as to breach was clear - primary judge dealt fairly with evidence - conclusion on contributory negligence reasonably open - appeal should fail - grant of leave to appeal would be nugatory - leave to appeal refused.
Roche (I)
Angeleska v State of Victoria [2015] VSCA 213
Court of Appeal of Victoria
Warren CJ, Tate JA & Ginnane AJA
Costs - Court delivered judgment in appeal and in application for leave to appeal against costs order made by associate judge on same date - respondents were State of Victoria and 23 police officers - parties filed submissions in relation to costs of appeal - held: appellant enjoyed very limited success on appeal - respondents were substantially successful - circumstances relied upon by the appellant did not warrant making of different order as to costs - leave to appeal against associate judge’s costs order was refused - respondents should have their costs of that application - appellant to pay respondents’ costs of appeal and of application for leave to appeal.
Angeleska (I)
Re PJLJ Pty Ltd, Richard Dunstan Reynolds and Patphair Investments Pty Ltd [2015] VSC 401
Supreme Court of Victoria
Derham AsJ
Real property - restrictive covenants - plaintiffs applied under s84(1) Property Law Act 1958 (Vic) in three separate proceedings for modification of three restrictive covenants burdening their properties - each covenant prohibited construction of more than one dwelling house on plaintiffs’ properties - proposed modification would permit construction of up to three dwellings - plaintiffs relied on ground in s84(1)(c) that proposed modifications would not cause substantial injury to any person having benefit of covenant - purpose of ‘single-dwelling’ restriction found in each covenant - benefit conferred on beneficiary in precluding more than one dwelling on burdened properties - whether beneficiary would suffer substantial injury should covenants be be modified and three dwellings constructed on each property - held: Court satisfied modification of covenants would not substantially injure persons entitled to the benefit of them - orders made.
Pilton Holdings Pty Ltd v Essential Beauty Franchising (WA) Pty Ltd [2015] SASCFC 88
Full Court of the Supreme Court of South Australia
Kourakis CJ, Vanstone & Lovell JJ
Contract - franchise agreement - respondent master franchisor sought declaration it validly terminated master franchise agreement and judgment for debt due on termination - appellant master franchisee sought declarations that purported termination unlawful or that respondent breached Competition and Consumer Act 2010 (Cth) - primary judge found appellant breached agreement and breached s47 by not complying with respondent’s directions - primary judge found respondent entitled to terminate agreement and to judgment - held: respondent had role of accrediting approved products and suppliers and was entitled to issue direction relating to list of products or suppliers - respondent’s termination for appellants non-compliance with direction was valid - appeal dismissed.
Pilton (I B)