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


Wednesday, 17 December 2014

Executive Summary (One Minute Read)
Australian Competition and Consumer Commission v AGL South Australia Pty Ltd (FCA) - trade practices - misleading and deceptive statements by electricity retailer
Karambelas v Zaknic (No 2) (NSWCA) - motor vehicle accident - full and satisfactory explanation for delay in making claim - appeal allowed
Owners Strata Plan 73162 v Dyldam Developments Pty Ltd (NSWSC) - costs - defective building works - unreasonable failure to agree to settlement proposal - builder to pay owner's costs
AIG Australia Ltd v Jaques (VSCA) - insurance - investment management insurance policy - non-executive director entitled to indemnity - appeal dismissed
Reitano v Shearer (QCA) - damages - motor vehicle collision - general damages - future special damages - appeal against award of damages allowed
Summaries With Link (Five Minute Read)
Australian Competition and Consumer Commission v AGL South Australia Pty Ltd [2014] FCA 1369
Federal Court of Australia
White J
Trade practices - consumer law - respondent (AGL) was retailer of electricity - ACCC alleged AGL engaged in misleading or deceptive conduct or made false or misleading statements in respect of discounts from its charges for electricity supplied to customers - ACCC sought declarations AGL contravened ss18(1) & 29(1)(g) and (i) Australian Consumer Law, penalties and relief - s140 Evidence Act 1995 (Cth) - ss52 & 53 Trade Practices Act 1974 (Cth) - ss4(2) & 155 Competition and Consumer Act 2010 (Cth) - held: ACCC's claim upheld in relation to certain statements made by AGL in mid-2012 - Court not satisfied certain other statements were misleading or deceptive - allegations that AGL engaged in misleading or deceptive conduct by omitting to disclose certain information to customers at time of rate increases rejected - declaration made.
Australian Competition and Consumer Commission
Karambelas v Zaknic (No 2) [2014] NSWCA 433
Court of Appeal of New South Wales
Basten & Meagher JJA; Simpson J
Motor vehicle accident - primary judge dismissed proceedings brought by appellant against respondents for damages for injuries sustained in motor accident - proceedings dismissed under s73(7) Motor Accidents Compensation Act 1999 (NSW) because primary judge not satisfied appellant had full and satisfactory explanation for delay in not making claim within six months of accident - appellant claimed primary judge erred in identifying period of delay for purposes of s73(7) as 4 years and 9 months - respondents accepted error was material to primary judge's conclusion and that District Court's orders must be set aside - Court to deal with remaining question whether appellant had satisfactory explanation - full and satisfactory - held: reasonable person in appellant's position would have been justified in acting in the way she did - appellant did not understand significance of not completing and returning form - no compelling reason for her to do so with regard to circumstances and incomplete understanding - appellant had full and satisfactory explanation for delay in notifying her claim - appeal allowed.
Owners Strata Plan 73162 v Dyldam Developments Pty Ltd [2014] NSWSC 1789
Supreme Court of New South Wales
Nicholas AJ
Costs - proceedings by owner against builder for rectification of defective works settled except in respect of legal costs - agreed under deed that builder would rectify defects in respect of which it had admitted liability in accordance with scope of work specified in agreed experts' reports and under supervision of independent superintendent - owner sought orders that builder pay costs for period after date of last expert report - orders sought on basis costs followed event and they had been substantially successful - reasonableness of failure to agree to settlement proposal - held: no rational explanation for builder's rejection of owner's terms of settlement until eve of hearing - builder's stance was exercise in brinkmanship - owner had achieved by settlement the relief sought from the outset - settlement represented capitulation by builder rather than a comprise of litigation - builder to pay owner's costs.
Owners Strata Plan 73162
AIG Australia Ltd v Jaques [2014] VSCA 332
Court of Appeal of Victoria
Warren CJ; Neave & Hansen JJA
Insurance - insurer issued investment management insurance policy to company - insurer undertook to pay or reimburse loss of any insured person resulting from claim being made against them during policy period for wrongful managerial act - director of company was insured person under policy - during policy period, director notified insurer of claims made against him for wrongful managerial acts that had occurred in 2006, 2007 and 2008 - insurer accepted claims - claims for defence costs by directors of company in court proceedings exhausted limit under policy - under policy, non-executive directors became prima facie entitled to special excess limit - insurer refused director extended cover - director sought declaration he was entitled to indemnity under policy in respect of loss related to conduct prior to appointment as executive director in 2007 - primary judge found director was non-executive director of company during relevant period and was entitled to indemnity - insurer appealed - held: challenge to judge's definition of non-executive director in policy failed - no failure to give adequate weight to matters of fact - challenges to factual findings failed - appeal dismissed.
AIG Australia Ltd
Reitano v Shearer [2014] QCA 336
Court of Appeal of Queensland
Holmes & Fraser JJA; Philipides J
Damages - appellant was 17 when injured in motor vehicle collision - quantum only issue at trial - appellant appealed against primary judge's decision that collision caused appellant to suffer spinal injury in context of advanced pre-existing degeneration in spine - appellant contended trial judge wrongly failed to make awards for past and future gratuitous care and future special damages - appellant also contended awards made for general damages and future economic loss involved error and were manifestly inadequate - ss55(3) & 59(1) Civil Liability Act 2003 (Qld) - held: award of damages for future economic loss not inadequate - judgment at first instance entailed error in award of general damages and failure to award future special damages - appeal allowed.