Daily Insurance: Thursday, 17 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)
Vincent v Woolworths Ltd (NSWCA) - negligence - merchandiser injured in collision with trolley at supermarket - employer and occupier not liable - appeal dismissed
Tanamerah Estates Pty Ltd v Tibra Capital Pty Ltd (NSWCA) - judgments and orders - application to re-open application for leave to appeal - no reason to interfere with judges' orders - notices of motion dismissed
Crowe-Maxwell v Frost (NSWCA) - corporations - dismissal of claims by liquidator and company for payments on basis they were void as unreasonable director-related transactions - appeal dismissed
Strata Plan 79215 v Nazero Constructions Pty Ltd (NSWSC) - damages - breaches of statutory warranties in Home Building Act 1989 (NSW) - damages assessed - judgment for plaintiff
Angus Carnegie Gordon in his capacity as liquidator of Deva Loka Pty Limited (in liquidation) (ACN 142 201 045) v Coral Bay East Coast Pty Limited (ACN 132 028 285) (NSWSC) - injunction - application for access to defendant's premises on which property stored - orders granted
Wesfarmers Ltd v Lloyd (VSCA) - accident compensation - serious injury - employee entitled to sue for damages for pain and suffering - leave to appeal refused
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1. This Benchmark Television broadcast is with Ben Beukes, Principal of Litigant, in discussion with Ben Fogarty of counsel.

2. They discuss the financial management of protected estates and the roles of the Guardianship Division of the New South Wales Civil and Administrative Tribunal (‘NCAT’) and the Supreme Court in appointing both private managers and the New South Wales Trustee & Guardian including issues of remuneration.

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Financial management of protected estates and the appointment of the Guardians (NSW) - Remuneration
Ben Beukes, Principal of Litigant, and Ben Fogarty discuss the financial management of protected estates and the roles of the Guardianship Division of the New South Wales Civil and Administrative Tribunal (‘NCAT’) and the Supreme Court in appointing both private managers and the New South Wales Trustee & Guardian including issues of remuneration.
Summaries With Link (Five Minute Read)
Vincent v Woolworths Ltd [2016] NSWCA 40
Court of Appeal of New South Wales
McColl, Macfarlan & Ward JJA
Negligence - appellant part-time merchandiser sued Woolworths and employer in separate proceedings for injuries suffered in course of employment in collision with trolley at supermarket - Woolworths and employer cross-claimed against the other - primary judge found employer not negligent and held there was no breach of duty of care by Woolworths as occupier - primary judge found collision occurred because neither customer or appellant looked where they were going as ordinary care usually required - primary judge found accident resulted from failure of appellant and customer to see each other - held: challenges to findings on negligence and causation failed - not necessary to consider cross-appeals concerning apportionment and contributory negligence - appeal dismissed.
Vincent
Tanamerah Estates Pty Ltd v Tibra Capital Pty Ltd [2016] NSWCA 42
Court of Appeal of New South Wales
Gleeson & Simpson JJA; Emmett AJA
Judgments and orders - Court dismissed application for leave to appeal from three decisions in proceedings appellant brought against respondent - dispute had concerned company's ability to commence proceedings “by a director” - applicants in substance sought re-opening of application for leave to appeal but also sought other relief - ss3 &14 Civil Procedure Act 2005 (NSW) - rr7.1, 7.2, 7.14, 36.15, 36.16, 36.17 & 42.1 Uniform Civil Procedure Rules 2005 (NSW) - “slip rule” - procedural fairness - held: applicants were seeking to re-agitate arguments which Court had already considered - no basis to interfere with Court's orders - notices of motion dismissed.
Tanamerah
Crowe-Maxwell v Frost [2016] NSWCA 46
Court of Appeal of New South Wales
Beazley P, Macfarlan & Gleeson JJA
Corporations - respondents' business conducted through second appellant company - respondents were company's sole shareholders and directors - first respondent and second respondent worked in business - no records of payment of wages but company paid various personal expenses - first appellant appointed as liquidator of company - appellants sought money allegedly paid by company for directors' benefit on basis they were void as unreasonable director-related transactions under s588FDA Corporations Act 2001 (Cth) or equitable compensation for breach of directors' duties - primary judge dismissed claims - identification of unreasonable director-related transactions - held: appeal dismissed.
Crowe-Maxwell
Strata Plan 79215 v Nazero Constructions Pty Ltd [2016] NSWSC 231
Supreme Court of New South Wales
Meagher JA
Damages - judgment awarded in plaintiff's favour against first defendant for damages for breaches of statutory warranties in s18B Home Building Act 1989 (NSW) - assessment of damages - s70 Civil Procedure Act 2005 (NSW) - ss3A, 18B, 18C & 18D Home Building Act 1989 (NSW) - s59 Evidence Act 1995 (NSW) - ss65 & 227 Strata Schemes Management Act 1996 (NSW) - r30.1 Uniform Civil Procedure Rules 2005 (NSW) - held: Court satisfied surveyor who was provided with experts' reports by plaintiff was qualified to express opinions and had addressed reasonable cost of remedying defects - Court satisfied experts qualified to express and had expressd opinion on nature of remedial work - damages assessed - judgment for plaintiff.
Strata
Angus Carnegie Gordon in his capacity as liquidator of Deva Loka Pty Limited (in liquidation) (ACN 142 201 045) v Coral Bay East Coast Pty Limited (ACN 132 028 285) [2016] NSWSC 245
Supreme Court of New South Wales
Schmidt J
Injunction - plaintiff sought relief in relation to accessing defendant's premises on which property was stored - property had been sold to third party who had made payment to liquidator - plaintiff contended defendant was preventing access to property which interfered with sale of property - held: plaintiff had given undertaking as to damages - high duty of candour met - plaintiff had a prima facie case - urgency established - orders sought by plaintiff made.
Angus
Wesfarmers Ltd v Lloyd [2016] VSCA 41
Court of Appeal of Victoria
Tate, Osborn & Santamaria JJA
Accident compensation - appellant's employee injured when co-worker accidentally caused forklift to move and crush him - appellant's injuries resolved except back pain - employee sought leave to sue for damages for pain and suffering under s134AB(16)(b) Accident Compensation Act 1985 (Vic) - claim for pecuniary loss not contemplated - primary judge found employee entitled to leave - meaning of “serious injury” in 134AB(37) - held: no error of conclusion of fact to be drawn from evidence or judge's reasoning - trial judge's decision not plainly wrong that ongoing pain and consequences had very considerable dramatic effect on amenity of life - leave to appeal refused.
Wesfarmers