Daily Insurance: Wednesday, 16 March 2016
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AR Conolly Company Lawyers.
A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Daily Insurance

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Executive Summary (One Minute Read)
Ogbonna v CTI Logistics Ltd (FCA) - human rights - racial discrimination - payment of allowances and superannuation - dismissal of claims - appeal dismissed
Linfield Developments Pty Ltd v Shuangxing Development Pty Ltd (NSWSC) - contract - development agreement - enforcement of call option - specific performance granted
Australian Dream Homes v Stojanovski (VSCA) - security for costs - termination of domestic building contract - evidence of impecuniosity not compelling - matters of public importance - security for costs of appeal refused
Distinctive FX Pty Ltd v Van Der Slot (VSCA) - injunctions - freezing order - respondent granted access to proceeds of life insurance policy held in trust account and subject of freezing order - leave to appeal refused
Maggs v RACQ Insurance Ltd (QSC) - damages - negligence - terms of settlement sanctioned less amount for component of fund management fees
Sinnamon v Maher (QSC) - damages- negligence - assessment of management fees - Super Platform Costs constituted part of award of damages
Dear Subscriber

1. This Benchmark Television broadcast is with Peter Tomasetti SC on the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) with Scott Nash of counsel.

2. The session lasts one hour, two minutes. It’s dense and it’s very good - presented by vastly experienced counsel. Not one for the children.

3. For Benchmark CLE subscribers we have prepared notes which we will forward to them at their request.

4. Also for Benchmark CLE subscribers at their request we will forward them an advice notice evidencing when they accessed this production.

5. We also have a series of questions for Benchmark CLE subscribers which we will send to them at their request.

6. We will be in the next few days publishing some productions which are exclusively for Benchmark CLE subscribers.

7. You should watch on Wi-Fi to avoid excess data usage charges.

Warm regards
Alan Conolly for Benchmark
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Benchmark Television
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Peter Tomasetti SC on the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) with Scott Nash of counsel
The session lasts one hour, two minutes. It’s dense and it’s very good - presented by vastly experienced counsel. Not one for the children.
Summaries With Link (Five Minute Read)
Ogbonna v CTI Logistics Ltd [2016] FCA 239
Federal Court of Australia
Barker J
Human rights - racial discrimination - Federal Circuit Court dismissed applicant's claim alleging racial discrimination under Racial Discrimination Act 1975 (Cth) against respondents and also dismissed further claim that applicant was not paid allowances and superannuation - applicant sought extension of time to appeal - whether time should be extended - whether appeal had merit - standard of review - appointment to perform first aid - role as team leader - admission of hearsay - direction to work at site - claims regarding allowances under Road Transport and Distribution Award 2010 - travelling allowance - admission of evidence - defamation - held: extension of time failed - grounds of appeal failed - appeal dismissed.
Ogbonna
Linfield Developments Pty Ltd v Shuangxing Development Pty Ltd [2016] NSWSC 68
Supreme Court of New South Wales
Pembroke J
Contract - specific performance - plaintiff sought to enforce a call option contained in development agreement - first defendant was in administration - first defendant agreed to purchase land and entered development agreement with third party plaintiff - development agreement contained call option in plaintiff's favour - event of default occurred - plaintiff called for land under option - main dispute was between plaintiff and sixth defendant - sixth defendant claimed its interest as equitable mortgagee had priority over plaintiff's interest in respect of call option - Australian Consumer Law - Contracts Review Act 1980 (NSW) - credit - contractual construction - contemporaneous notes and documents - held: no genuine dispute about circumstances of plaintiff's exercise of call option - arguments about exercise of option not supportable - plaintiff entitled to relief sought - specific performance granted - judgment for plaintiff.
Linfield
Australian Dream Homes v Stojanovski [2016] VSCA 38
Court of Appeal of Victoria
Santamaria & McLeish JJA
Security for costs - builder sought to appeal decision in which primary found it was not open to Tribunal to hold owners acted unreasonably in terminating domestic building contract - contract was in form of Master Builders Association of Victoria New Homes Contract (HC-6 Edition 1-2007) - owners sought security for costs - Domestic Building Contracts Act 1995 (NSW) - termination provisions of contract - r64.38(2) Supreme Court (General Civil Procedure) Rules 2015 (Vic) - held: evidence of builder's impecuniosity not compelling - there had been delay in seeking security - appeal concerned matters of public importance - security for costs refused.
Australian Dream Homes
Distinctive FX Pty Ltd v Van Der Slot [2016] VSCA 39
Court of Appeal of Victoria
Beach & McLeish JJA
Injunctions - freezing order - dispute concerning respondent's ability to deal with proceeds of life insurance - policy taken out on life of respondent's deceased husband - proceeds paid into trust account and subject of freezing order - applicants sought leave to appeal against decision in which trial judge permitted respondent access to funds to pay expenses and legal expenses - held: no substance to complaint that trial judge took into account irrelevant considerations and/or mistook facts - Court not persuaded trial judge's orders plainly unjust or unreasonable - trial judge reason's not inadequate - no error in evaluation of balance of convenience - appeal had no prospects of success - leave to appeal refused.
Distinctive FX
Maggs v RACQ Insurance Ltd [2016] QSC 41
Supreme Court of Queensland
Boddice J
Damages - negligence - applicant sought sanctioning of terms of settlement of her claim for damages resulting from parents' death in motor vehicle accident - parties agreed on terms of settlement in relation to quantification of heads of damages - whether applicant entitled to receive component of fund management fees - ss7 & 65 Civil Proceedings Act 2011 (Qld) - Public Trustee Act 1978 (Qld) - limitation on recoverable damages - held: component of fund management fees not recoverable as damages resulting from parents' death - Court satisfied proposed settlement less component of fund management fees in applicant's best interest - parties to prepare short minutes of order.
Maggs
Sinnamon v Maher [2016] QSC 51
Supreme Court of Queensland
Flanagan J
Damages - negligence - plaintiff injured in pedestrian traffic accident - proceedings brought by litigation guardian - claim settled - administrator appointed - assessment of management fees - sole issue whether “Super Platform Costs” should be allowed - s57 Civil Liability Act 2003 (Qld) - s61(4) Civil Proceedings Act 2011 (Qld) - ss12 & 51 Guardianship and Administration Act 2000 (Qld) - s59(1) Public Trustee Act 1978 (Qld) - s 24(1) Trusts Act 1973 (Qld) - held: Super Platform Costs constituted fee payable by administrator to superannuation fund's trustee and constituted part of award of damages - orders made.
Sinnamon