Insurance, Banking, Construction & Government: Wednesday, 19 August 2015 View in browser
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AR Conolly Company Lawyers.
A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Daily Composite

Insurance, Banking, Construction & Government

Executive Summary (One Minute Read)
Baker v David (NSWCA) - equity - appointment of trustees for sale of property - failure to address arguments concerning agreement between parties - new trial (B)
The Owners – Strata Plan 80647 v WFI Insurance Ltd t/as Lumley Insurance (NSWSC) - bankruptcy - construction law - separate question answered in negative - second defendant’s application for striking out or dismissal refused (I B C)
Zecevic v Blackwood (QSC) - judicial review - workers compensation - application for review of Medical Tribunal’s decision dismissed (I C G)
Cash Logistics Pty Ltd v Nelson (SASC) - independent contractor’s agreement - sub-bailment - respondent liable to indemnify appellant for loss incurred by its reimbursement of client - appeal allowed (I B)
Lopez in his capacity as liquidator of Swan Concrete Products Pty Ltd (in liq) v Harvey (WASC) - corporations - summary judgment - claim for payment received from creditors of company in liquidation - judgment granted on part of claim (I B)
Reid v Western Australian Planning Commission (WASC) - planning and development - conditional approval of subdivision plan - leave to appeal refused (B C G)
Urbaniak-Bak v Prail (ACTCA) - solicitor’s costs agreement - client required to pay disbursements - appeal dismissed (I)
Summaries With Link (Five Minute Read)
Baker v David [2015] NSWCA 235
Court of Appeal of New South Wales
McColl & Meagher JJA; Sackville AJA
Equity - appellant and respondent were registered owners as joint tenants of property - respondent under s66G Conveyancing Act 1919 (NSW) sought appointment of trustees for sale of property - primary judge made order appointing trustees for sale, order vesting property in trustees and order as to how net proceeds of sale should be applied - appellant appealed - s66G Conveyancing Act 1919 (NSW) - rr51.53(1) & 6.24 Uniform Civil Procedure Rules 2005 (NSW) - appellant complained that his arguments as to enforceability and construction of “Terrigal Agreement” between parties had not properly been addressed in relation to exclusive possession - held: Court satisfied there was error of law because appellant’s arguments as to enforceability and construction of the Terrigal Agreement were not addressed - arguments were certainly not hopeless thus substantial miscarriage of justice had occurred - new trial ordered
Baker (B)
The Owners – Strata Plan 80647 v WFI Insurance Ltd t/as Lumley Insurance [2015] NSWSC 1161
Supreme Court of New South Wales
Darke J
Bankruptcy - construction law - insurance - consolidation of two proceedings commenced by owners corporation concerning allegedly defective building work in residential strata development, common property of which owned by owners corporation - determination of separate question - whether first defendant entitled to deny indemnity in respect of owners corporation’s claims by reason only of bankruptcy and discharge therefrom of second defendant prior to owners corporation making claim on policy against first defendant - held: Court rejected first defendant’s contention it was entitled to deny claim for indemnity made by owners corporation - not appropriate to either strike out or dismiss owners corporation’s proceedings against second defendant - orders made.
Strata (I B C)
Zecevic v Blackwood [2015] QSC 232
Supreme Court of Queensland
P McMurdo J
Judicial review - workers compensation - applicant wished to claim damages against former employer for condition which he contended arose from his work - WorkCover rejected claim on basis condition not caused or materially contributed to by his work - Authority set aside decision and referred matter to General Medical Assessment Tribunal, which determined applicant’s condition not a consequence of employment - applicant sought judicial review of Medical Tribunal’s decision - Judicial Review Act 1991 (Qld) - ss20(2)(f), 20(2)(h) & 24 Workers’ Compensation and Rehabilitation Act 2003 (Qld) - held: applicant failed to establish ground of review - applicant failed to establish absence of evidence or other material to justify making of decision - applicant failed to meet requirements of s24 Judicial Review Act concerning decisions without justification - argument that Tribunal strayed into non-medical matters not accepted - application dismissed.
Zecevic (I C G)
Cash Logistics Pty Ltd v Nelson [2015] SASC 117
Supreme Court of South Australia
Stanley J
Bailment - appellants collected cash from businesses and transported it securely to banks or other financial institutions - appellants subcontracted work to respondent pursuant to written contract, clause of which made respondent liable to compensate appellant for loss or damage arising from breach - respondent conveyed cash from premises of appellants’ client to its bank - respondents’ employees robbed - cash belonging to client stolen while in transit to bank - appellants reimbursed sum to its client and sought to be indemnified by respondent, which paid them part of sum - appellants retained further sum of money they owed to respondent to satisfy part of claim against him - respondent did not seek recovery of amount - appellants sued for balance - held: respondent liable to indemnify appellants for loss suffered as result of having to reimburse client - respondent liable pursuant to clause of contract and as sub-bailee - appeal allowed.
Cash (I B)
Lopez in his capacity as liquidator of Swan Concrete Products Pty Ltd (in liq) v Harvey [2015] WASC 292
Supreme Court of Western Australia
Chaney J
Corporations - summary judgment - plaintiff liquidator of company sought summary judgment against first defendant for amount of payments first defendant received from creditors of company - liquidator claimed payments were unfair preference payments under s588FA Corporations Act 2001 (Cth) and voidable under s588FE because they were made within six months of company’s liquidation - whether continuing business relationship - held: Court not satisfied there was no arguable case for application of s588FA(3) in circumstances of case - however even if first defendant entitled to benefit of s588FA(3) plaintiff was nevertheless entitled to judgment for part of claim - first defendant granted leave to defend balance of claim.
Lopez (I B)
Reid v Western Australian Planning Commission [2015] WASC 293
Supreme Court of Western Australia
Chaney J
Planning and development - applicants were registered proprietors as tenants in common of property - respondent approved proposed subdivision plan for creation of two lots subject to conditions - appellants sought review by State Administrative Tribunal of conditions - appellants sought leave to appeal from Tribunal’s dismissal of its application for review and affirmation of conditions - held: no merit in contention that Tribunal erred in law in wrongly determining that conditions reasonably and fairly related to subdivisional application - no merit in contention that Tribunal erred in law in treatment of cl 6 of WAPC Policy Number DC 3.4 - leave to appeal refused - appeal dismissed.
Reid (B C G)
Urbaniak-Bak v Prail [2015] ACTCA 39
Court of Appeal of the Australian Capital Territory
Reshauge, Burns & Rangiah JJ
Solicitor’s costs agreement - appellant signed a solicitor’s costs agreement with respondent - costs agreement had number of terms - generally arrangements known as “no win no fee” but terms required payment of costs on certain defined events even if proceedings unsuccessful - respondent ceased to act for appellant and later claimed costs and expenses - Master ordered appellant to pay disbursements to respondent - appellant appealed - held: appellant’s English somewhat limited but no evidence that it required finding solicitor’s explanation would not have resulted in adequate appreciation of terms - no duty on Master to conduct disciplinary investigation into solicitor’s conduct - inappropriate to raise issue whether solicitor breached duty by failing to provide interpreter when it had not been been raised in courts below - Master’s finding that solicitor not entitled to terminate costs agreement for conflict of interest did not affect appellant’s obligation to pay disbursements already incurred - appeal dismissed.
Urbaniak (I)