Insurance, Banking, Construction & Government: Monday, 20 July 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)
Neale v Neale (NSWCA) - succession - payment of legacies to children of deceased by previous marriage - widow’s challenge failed - appeal dismissed (B)
Hordern v State of New South Wales (NSWSC) - stay - negligence - stay of proceedings refused - referral to Common Law Registrar for referral to barrister or solicitor on pro bono panel for legal assistance (I)
St George Bank v Hammer (No 2) (NSWSC) - possession - transfer of proceedings refused - defence struck out - summary dismissal refused (B)
Traditional Values Management Limited (In Liq) - Application by Andrew Stewart Reed Hewitt as special purpose liquidator (VSC) - corporations - remuneration of special purposes liquidator (B)
Petchell v Du Pradal; Pia Du Pradal Pty Ltd v Petchell (QCA) - negligence - snorkeler run over by boat - boat driver liable - assessment of damages - ‘per quod servitium’ - appeals dismissed (I)
Belgravia Nominees Pty Ltd v Lowe Pty Ltd (WASCA) - partnership - dissolution of partnership before commencement of proceedings by one partner - accrued rights held jointly by partners - other partner joined to proceedings (I B)
Maples Winterview Pty Ltd v Liu (ACTSC) - contract - standard form building contract - builder not entitled to payments following its termination of contract - judgment for defendants (I B C)
Summaries With Link (Five Minute Read)
Neale v Neale [2015] NSWCA 206
Court of Appeal of New South Wales
Basten, Macfarlan & Gleeson JJA
Succession - deceased left whole estate to widow - two of deceased’s three children by earlier marriage sought provision from estate under pt 3.2 Succession Act 2006 (NSW) - Court awarded legacies to be paid from notional estate of deceased - widow sought to set aside legacies and that respondents pay her costs - each claimant had a child or children with medical conditions and physical disabilities causing distress and expense - circumstances relating to claimants which primary judge found favoured order for provision - competing needs of widow - held: widow’s challenges failed - widow was secure financially in comparison with claimants - security not materially affected by payment of legacies - no error identified on part of primary judge - appeal dismissed.
Neale (B)
Hordern v State of New South Wales [2015] NSWSC 959
Supreme Court of New South Wales
Davies J
Stay - negligence - plaintiff sued State alleging negligence as result of assault sustained while incarcerated and for other matters - proceedings commenced in July 2013 but had not advanced in meaningful way - plaintiff claimed lack of progress due to fact he was suffering from Asperger’s syndrome and that he had been under Extended Supervision Order which impeded his ability to prepare matter - plaintiff sought stay until completion of appeal against Extended Supervision Order - held: basis for order not established - plaintiff had not instituted appeal against Extended Supervision Order - plaintiff needed further legal assistance if proceedings were to be pursued - notice of motion dismissed - referral to Common Law Registrar in respect of plaintiff for referral to barrister or solicitor on pro bono panel for legal assistance.
Hordern (I)
St George Bank v Hammer (No 2) [2015] NSWSC 953
Supreme Court of New South Wales
Campbell J
Possession - bank sought judgment for possession over land of which defendant borrower was registered proprietor - borrower was in Hawaii - borrower disputed that bank was ‘lender’, and default - three notices of motion - borrower sought “transfer” proceedings to Federal Court of Australia - bank sought to strike out borrower’s defence - borrower sought summary dismissal of proceedings on basis they were vexatious and disclosed no reasonable cause of action - held: application for transfer of proceedings dismissed - Court satisfied defence should be struck out as it disclosed no reasonable defence - borrower completely filed to disclose heavy onus that outcome of litigation so certain that it would be abuse of process to proceed to full hearing on the merits - summary dismissal refused.
StGeorge (B)
Traditional Values Management Limited (In Liquidation) - Application by Andrew Stewart Reed Hewitt as special purpose liquidator [2015] VSC 338
Supreme Court of Victoria
Gardiner AsJ
Corporations - special purpose liquidator sought determination he was entitled to remuneration for work done - liquidator sought that costs of application be ‘Expenses’ in the liquidation of company (TVM) - ‘Special Purpose Liquidation Task’ - s473(1) Corporations Act 2001 (Cth) - held: Remuneration Request Approval Report complied with r9.4(7) Supreme Court (Corporations) Rules 2003 (Cth) and established remuneration sought fair and reasonable - application demonstrated prima facie case that claim fair and reasonable - application adequately addressed matters mentioned in s473(10)(a)–(d) - orders made in terms of interlocutory process.
Traditional (B)
Petchell v Du Pradal; Pia Du Pradal Pty Ltd v Petchell [2015] QCA 132
Court of Appeal of Queensland
Gotterson JA; Atkinson & Martin JJ
Mullins J
Negligence - snorkeler injured while snorkelling when run over by motor boat driven by driver - third party was in snorkeler’s motor boat at time of accident - driver failed to comply with speed limit - driver noticed plaintiff's orange dive float but failed to slow down and navigate path clear of the dive float and diver – snorkeler’s employer brought claim for damages against driver for action ‘per quod servitium’ - primary judge found snorkeler established accident caused by driver’s breach of duty of care owed to him, and no contributory negligence - driver’s claim against third party dismissed - employer's claim against driver dismissed - driver appealed against award of damages in respect of past and future economic loss - employer appealed from dismissal of claim - ss59 & 60 Civil Liability Act 2003 (Qld) - s11 Civil Liability and Other Legislation Amendment Act 2010 (Qld) - rr5(1), r50(1)(b),155 & 375(1) Uniform Civil Procedure Rules 1999 (Qld) - held: driver’s challenges to assessment of damages, and employer’s challenge to dismissal of claim failed - appeal dismissed.
Petchell (I)
Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2015] WASCA 143
Court of Appeal of New South Wales
McLure P; Buss & Murphy JJA
Partnership - appellant claimed it and company (Penhurst) carried on business in partnership - partners and another entered agency agreement with first respondent -partnership made payments to first respondent - partnership dissolved - appellant pleaded multiple causes of action against respondents - primary issue on appeal was whether, following dissolution of partnership, s49 Partnership Act 1895 (WA) was exclusive source of partner's right to bring proceedings to recover partnership property - held: partnership's accrued rights to take action against first respondent for breach of agency agreement and to recover statutory debt were held jointly by appellant and Penhurst - Penhurst must be joined as plaintiff with its consent, or made a defendant absent its consent under O18 r4(2) Rules of the Supreme Court 1971 (WA) - rule applied where plaintiff claimed relief to which any other person was entitled jointly with him - s49 not exclusive source of partner's accrued right to take legal proceedings in respect of partnership property after dissolution of partnership - appeal allowed.
Belgravia (I B)
Maples Winterview Pty Ltd v Liu [2015] ACTSC 58
Supreme Court of the Australian Capital Territory
Mossop AsJ
Contract - standard form building contract - plaintiff building company sued first and second defendants who were joint owners of property - claim sought payment of amount owing following termination of building contract by plaintiff - whether contract validly terminated for defendants’ breach of obligation to pay one or more payment claims - held: due to plaintiff’s failure to install under slab insulation, plaintiff had no entitlement to progress payment for stages 2 and following - because plaintiff not entitled to make those progress claims it was not entitled to further money by reason of adjustment of contract price - plaintiff not entitled to make the claims it did on certain date and defendants not in breach of contract by failing to make payments - plaintiff not entitled to terminate contract - entitlement to payment dependent upon contract being terminated in accordance with clause - contract not terminated by plaintiff in accordance with that clause - plaintiff not entitled to payment under clause - defendant’s failure to obtain loan from bank was not breach of contract - judgment for defendants.
Maples (I B C)