Insurance, Banking, Construction & Government: Tuesday, 19 May 2015 View in browser

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

Daily Composite

Insurance, Banking, Construction & Government

Listen to our daily executive summary – 120 seconds
Executive Summary (One Minute Read)
Lachlan v HP Mercantile Pty Ltd (NSWCA) - deed of release and assignment - assignee entitled to amounts owing under loan agreements - appeal dismissed (I B)
Verryt v Schoupp (NSWCA) - negligence - motor accidents compensation - “skitching” accident - contributory negligence established - damages reduced - appeal allowed in part (I)
Casey v Pel-Air Aviation Pty Ltd; Helm v Pel-Air Aviation Pty Ltd (NSWSC) - negligence - damages - doctor and nurse injured in plane crash - nurse's PTSD was “bodily injury” compensable under Civil Aviation (Carriers Liability) Act 1959 (Cth) (I)
Peet v NRMA Insurance Ltd (NSWSC) - judicial review - motor accidents compensation - Medical Review Panel erred on issue of causation - decision quashed (I G)
ABL Nominees Pty Ltd v Pescott (No.2) (VSC) - privilege - subpoena - client legal privilege established over documents produced by former solicitor (I)
Stellard Pty Ltd v North Queensland Fuel Pty Ltd (QSC) - contract for sale of roadhouse constituted by email exchange - judgment for purchasers (B)
Australian Gypsum Industries Pty Ltd v Dalesun Holdings Pty Ltd (WASCA) - contract - deed of company arrangement - creditor not entitled to recover unpaid sums from surety - appeal dismissed. (B C)
Summaries With Link (Five Minute Read)
Lachlan v HP Mercantile Pty Ltd [2015] NSWCA 130
Court of Appeal of New South Wales
Bathurst CJ, Beazley P & McColl JA
Contract - appellant entered four loan agreements with company - respondent was assignee of company's rights - respondent sought to recover amounts outstanding on loans - parties entered Deed of Release and Assignment which provided appellant pay respondent amount in instalments and that respondent entitled to enter judgment for “judgment debt' under deed if unrectified default - consent orders made - appellant defaulted on final instalment and failed to rectify - appellant sought extension of time to pay final instalment - appellant submitted finding in Paino v Hoffbauer 13 NSWLR 193 in error and should not be followed, and that clause of deed which provided for payment of “judgement debt” unenforceable as it amounted to penalty - held: Paino v Hoffbauer did not impermissibly fetter Court's general discretion, and  trial judge did not err in having regard to it -  primary judge did not exercise discretion in manner manifestly unreasonable or plainly unjust in refusal of extension of time - clause of deed not a penalty as appellant implicitly acknowledged in deed that “judgment debt” debt was present debt - appeal dismissed.
Lachlan (I B)
Verryt v Schoupp [2015] NSWCA 128
Court of Appeal of New South Wales
Meagher & Gleeson JJA; Sackville AJA
Negligence - damages - respondent was child who sustained serious head injuries in ‘skitching' (riding skateboard while towed by vehicle) - accident was a “motor accident” under Motor Accidents Compensation Act 1999 - respondent claimed damages for negligence - appellant driver frankly conceded blame - primary judge rejected contributory negligence defence - judgment entered for respondent in amount of $2,204,150.47 - held: it was just and equitable that  respondent bear small proportion of responsibility for damage resulting from accident - sufficient allowance for respondent's lack of care for own safety was reflected in a reduction of his damages by 10% - reductions made to certain heads of damages - appeal allowed in part.
Verryt (I)
Casey v Pel-Air Aviation Pty Ltd; Helm v Pel-Air Aviation Pty Ltd [2015] NSWSC 566
Supreme Court of New South Wales
Schmidt J
Negligence - damages - nurse and doctor employed by company - company sent nurse and doctor from Sydney to help transport seriously ill patient and husband from Samoa to Melbourne - plane operated by Pel-Air Aviation Pty Ltd (Pel-Air) - plane crashed during leg of flight - doctor and nurse seriously injured - doctor and nurse sought to recover damages from Pel-Air - Pel-Air accepted crash caused by negligence of  pilot and co-pilot for which it had vicarious liability - not in issue that doctor and nurse injured - nurse suffered psychiatric injury - Pel-Air did not concede nurse's PTSD compensable under Civil Aviation (Carriers Liability) Act 1959 (Cth) - held: s9E provided rights to compensation for “bodily injury” under Art 17 Montreal Convention - nurse's PTSD compensable because it was a “bodily injury” - nurse also entitled to recover economic and non-economic losses under Civil Liability Act 2002 - doctor entitled to payment for future economic losses up to retirement age of 70 and for future care needs from ages 40 to 75 - judgment for doctor and nurse.
Casey (I)
Peet v NRMA Insurance Ltd [2015] NSWSC 558
Supreme Court of New South Wales
Hidden J
Judicial review - motor accidents compensation - causation - plaintiff claimed damages for psychological injury suffered in car accident - Medical Review Panel found plaintiff's psychological conditions not attributable to accident - plaintiff sought declaration that certificate and statement of reasons of Medical Review Panel were void and of no effect on basis Panel erred in approach to issue of causation - cll 1.7 – 1.9 Permanent Impairment Guidelines - held: Panel erred on causation issue -  Panel was addressing issue of factual causation when it found plaintiff's Adjustment Disorder not attributable to accident - Court persuaded Panel's assertion that this was not a “but for” situation disclosed explicit error - decision quashed.
Peet (I G)
ABL Nominees Pty Ltd v Pescott (No.2) [2015] VSC 206
Supreme Court of Victoria
Derham AsJ
Subpoena - client legal privilege - defendant claimed documents produced by former solicitors pursuant to subpoena issued by plaintiffs were subject to client legal privilege - plaintiffs contended privilege claim should not be upheld or that privilege had been waived - held: claim for privilege upheld with respect to documents - none of the documents were relevant to issue raised - no reason to consider question of waiver under s122 Evidence Act 2008 .
Stellard Pty Ltd v North Queensland Fuel Pty Ltd [2015] QSC 119
Supreme Court of Queensland
Martin J
Contract - defendant was owner of roadhouse - defendant appointed agent to sell freehold and business - expressions of interest sought -  negotiations took place by email with parties' representatives - plaintiffs claimed contract for sale of roadhouse to them was constituted by email exchange between them and owner - defendant claimed there was no intention to be legally bound by exchange and that in any event there was no sufficient written memorandum or note to satisfy s59 Property Law Act 1974 Property Law Act - Electronic Transactions (Queensland) Act 2001 - held: there was contract with defendant for sale of roadhouse - defendant's contention that there was no sufficient writing to satisfy s59 Property Law Act failed - judgment for plaintiffs.
Stellard (B)
Australian Gypsum Industries Pty Ltd v Dalesun Holdings Pty Ltd [2015] WASCA 95
Court of Appeal of New South Wales
Buss, Newnes & Murphy JJA
Contract - corporations - deed of company arrangement - appellants (creditor) supplied goods on credit to principal debtor - related company to principal debtor guaranteed obligations to the creditor -  guarantee was supported by charge over surety's land - surety went into administration and entered into a deed of company arrangement (DOCA) which  released all claims against surety including contingent claims - surety financially rehabilitated - DOCA terminated - creditor supplied further goods on credit to  debtor - debtor defaulted -  creditor sought to recover unpaid sums from surety - primary judge found creditor's claims precluded by operation of DOCA - s444D(2) Corporations Act 2001 (Cth) - terms of DOCA - statutory construction - held (by majority): creditor failed in sole ground of appeal that primary judge erred in concluding 444D prevented secured creditor who did not vote in favour of DOCA from realising or otherwise dealing with its security in respect of contingent or future claims which fructified after date specified in DOCA - appeal dismissed.
AustralianGypsum (B C)