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

Insurance, Banking, Construction & Government

Thursday, 18 December 2014

Executive Summary (One Minute Read)
Shaw v Yarranova Pty Ltd (FCAFC) - bankruptcy - sequestration order - appeal dismissed (B)
Nominal Defendant v Ismail (NSWCA) - negligence - motor vehicle accident - inadmissible evidence - retrial on liability (I)
Zraika by his tutor Zraika v Walsh (NSWSC) - negligence - motor vehicle accident - alleged injury suffered in utero - orders for genetic testing (I)
Zafiriou v Saint-Gobain Administration Pty Ltd (VSCA) - termination of employment contract - entitlement to redundancy payment - fresh evidence - retrial (I B)
Palmgrove Holdings Pty Ltd v Sunshine Coast Regional Council (QCA) - environment and planning - conviction for depositing “prescribed water contaminant” in stormwater drainage - appeal dismissed (I C)
Cowen v Bunnings Group Ltd (QSC) - negligence - employee developed illness after sweeping up fertiliser - causation established - employer liable (I)
Hitchcock v Goldspan Investments Pty Ltd [No 2] (WASC) - costs - freezing orders - exercise of discretion where no contested hearing (B)
Summaries With Link (Five Minute Read)
Shaw v Yarranova Pty Ltd [2014] FCAFC 171
Full Court of the Federal Court of Australia
Bennett, Flick & Yates JJ
Bankruptcy - respondent as nominee for company (MAB) sold apartment to appellant - respondent assigned benefit of contract to another company - appellant failed to pay balance of purchase price - appellant’s claim for specific performance of contract dismissed - judgment entered in favour of respondent and MAB (‘judgment creditors’) - appellant contended judgment creditors suffered no loss or damage - appellant contended judgment creditors falsely represented they were part of group of companies owned by MAB and that they committed a “fraud” by falsely representing they had been held out of funds and unable to invest money - judgment creditors served bankruptcy notice on appellant - appellant appealed against sequestration order - ss43, 52 & 153B Bankruptcy Act 1966 (Cth) - absence of evidence of fraud - refusal to go behind judgment - refusal of disqualification application - held: grounds of appeal not made out - application to adduce further evidence dismissed - appeal dismissed.
Shaw (B)
Nominal Defendant v Ismail [2014] NSWCA 432
Court of Appeal of New South Wales
Basten, Barrett & Emmett JJA
Negligence - motor vehicle accident - Ismail lost control of vehicle and collided with car - Ismail alleged loss of control caused when unidentified sedan made abrupt stop in front of her - truck driver behind Ismail claimed there was no sedan and that accident caused by unidentified semi-trailer attempting to merge - primary judge found there was both sedan and semi-trailer which contributed to accident - primary judge found for Ismail - Nominal Defendant challenged admissibility of traffic engineer's opinion and adequacy of trial judge's findings in reconciling inconsistent accounts of accident - Ismail cross-appealed on assessment of damages - held: report inadmissible as expert evidence as traffic engineer did not profess specialised knowledge in identifying how events perceived and recalled by different persons - approach taken by primary judge to reconcile accounts depended on admissibility of the evidence - finding on liability set aside - retrial ordered on liability
Nominal Defendant (I)
Zraika by his tutor Zraika v Walsh [2014] NSWSC 1774
Supreme Court of New South Wales
Davies J
Negligence - plaintiff diagnosed with microcephaly and developmental delay shortly after birth - plaintiff alleged he was injured by trauma sustained while he was in utero when mother injured in motor vehicle accident - causation - one explanation for plaintiff’s injuries was a genetic cause - defendants sought order for genetic testing - plaintiff opposed genetic testing on basis it would inevitably result in vacating of hearing date - delay - held: Court satisfied there was live issue as to causation of plaintiff’s physical incapacity and intellectual difficulty - Court satisfied that proposed testing had capacity to throw light on the issue - orders for testing made.
Zraika by his tutor Zraika (I)
Zafiriou v Saint-Gobain Administration Pty Ltd [2014] VSCA 331
Court of Appeal of Victoria
Osborn & Whelan JJA; Ginnane AJA
Evidence - contract - appellant formerly employed by respondent - appellant’s employment terminated - appellant claimed entitlement to amount under provision of written contract of employment which provided for a severance payment if his employment was terminated for reasons of redundancy/retrenchment - trial judge concluded employment not terminated for reasons of ‘redundancy/retrenchment’ and that primary claim should be dismissed - critical issue on appeal was whether fresh evidence had rendered trial judge’s conclusions unsafe - held: not realistically possible for Court to form concluded judgment on ultimate probative significance of fresh evidence - fresh evidence raised sufficient basis to require further trial - appeal allowed in part - certain claims dismissed - matter otherwise remitted for further hearing by different judge of trial division.
Zafiriou (I B)
Palmgrove Holdings Pty Ltd v Sunshine Coast Regional Council [2014] QCA 333
Court of Appeal of Queensland
Holmes & Muir JJA; McMeekin J
Environment and planning - applicant convicted by magistrate of unlawfully depositing a “prescribed water contaminant” in stormwater drainage contrary to s440ZG Environmental Protection Act 1994 (Qld) - primary judge dismissed appellant’s appeal against conviction - applicant sought leave to appeal - held: applicant did not have any prospect of demonstrating error in primary judge’s conclusion - on evidence adduced, no reasonable possibility consistent with innocence remained - evidence supported finding as to water’s contamination did not leave open other rational possibilities - leave to appeal refused.
Palmgrove Holdings Pty Ltd (I C)
Cowen v Bunnings Group Ltd [2014] QSC 301
Supreme Court of Queensland
A Wilson J
Negligence - causation - plaintiff employed by defendant - plaintiff sued defendant for illness she developed after sweeping up fertiliser - employer admitted breach of duty and that it was foreseeable that work she performed might cause her injury - however employer denied breaches caused plaintiff’s serious illness - employer claimed illness coincidental with work she did - medical evidence - close relation in time between exposure and development of illness - held: Court satisfied work exposed plaintiff to large amount of dust which seriously aggravated her upper respiratory tract - there was causal connection between irritation of plaintiff’s respiratory mucosa and subsequent grave illness - judgment for plaintiff.
Cowen (I)
Hitchcock v Goldspan Investments Pty Ltd [No 2] [2014] WASC 465
Supreme Court of Western Australia
Allanson J
Costs - freezing orders - plaintiff was shareholder of company - plaintiff sued director of company and other defendants - plaintiff sought damages or equitable compensation - plaintiff sought freezing orders restraining director from dealing with assets generally, and wife in relation to dealing with piece of land - Court made freezing orders - consent orders made - exercise of discretion as to costs where no contested hearing - O52A, r8 Rules of the Supreme Court 1971 (WA) - held: no enforceable agreement as to costs - orders made reflected a compromise rather than total capitulation by either party - conduct of plaintiff was unreasonable, leading to costs being unnecessarily incurred by director and wife - plaintiff to pay costs of application.
Hitchcock (B)