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

Insurance, Banking, Construction & Government

Monday, 20 October 2014
Executive Summary (One Minute Read)
Allwood v Peter Vivian Benjafield t/as Benjafield & Associates Lawyers (NSWCA) - judicial review - solicitors' fees - costs assessments not impugned on basis of beneficiaries' lack of standing (I B G)
NSW v Bishop (NSWCA) - workers compensation - causal link between injury and earlier work injury - appeal dismissed (I G)
Patrick Stevedores Operations No. 2 Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd (NSWSC) - security of payments - claim was not for progress payment - determinations void (C)
V8 Supercars Holdings Pty Ltd v Lucas Dumbrell Investments Pty Ltd (NSWSC) - commercial contract - separate questions - clause did not compel sale of rights by tender (B)
ICM Investments Pty Ltd v San Miguel Corporation and Berri Ltd (VSCA) - contract - corporations - illegality - breach of put and call option agreement - damages (B)
Northern Midlands Council v Telstra Corporation Ltd (TASSC) - environment and planning - Telstra entitled to erect tower in accordance with permit (C G)
Gwelo Developments Pty Ltd v Brierty Ltd (NTSC) - security of payments - applications in respect of payment disputes subject of earlier application invalid (C)
Summaries With Link (Five Minute Read)
Allwood v Peter Vivian Benjafield t/as Benjafield & Associates Lawyers [2014] NSWCA 355
Court of Appeal of New South Wales
McColl, Ward & Emmett JJA
Judicial review - succession - solicitors' costs - legal fees rendered by solicitor to deceased - invoices paid by deceased before death - solicitor was deceased's executor - costs assessments made under Legal Profession Act 2004 (NSW) - District Court set aside assessments on basis beneficiaries had no standing in relation to assessment applications - beneficiaries sought to set aside District Court's decision - held: determinations could not be impugned by beneficiaries' lack of standing - parties both at fault but solicitor, as executor, owed clear duty to estate and to beneficiaries to ensure its proper administration - despite clear conflict existed between solicitor's personal interests and duties to estate, stance he adopted did not assist in proper resolution of issues - District Court appeal dismissed - determination of review panel confirmed - solicitor to pay costs of proceedings.
Allwood (I B G)
NSW v Bishop [2014] NSWCA 354
Court of Appeal of New South Wales
Basten, Emmett & Gleeson JJA
Workers compensation - respondent alleged injury suffered in 2011 was result of disability caused by work injury suffered in 2004 - respondent claimed lump sum compensation for whole person impairment in Workers Compensation Commission - State disputed 2011 injury causally connected with 2004 Injury - arbitrator found in favour of State - presidential member found arbitrator erred in failing to give adequate reasons and in finding there was no causal link - ss352 & 353 Workplace Injury Management and Workers Compensation Act 1998 (NSW) - held: no error of law by presidential member in approach to arbitrator's reasons - presidential member limited approach to identifying and correcting errors of law and fact and did not conduct review or new hearing - no error of law in examination of evidence and other materials before arbitrator or in reaching a different conclusion as to essential fact in issue - appeal dismissed.
Patrick Stevedores Operations No. 2 Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [2014] NSWSC 1413
Supreme Court of New South Wales
Ball J
Security of payments - plaintiff sought declarations that first adjudicator's determination of payment claim by McConnell Dowell under s22 Building and Construction Industry Security of Payment Act 1999 (NSW) was void, and that second adjudicator's determination in respect of same payment claim was also void - held: no part of amount claimed by McConnell Dowell was claim for progress payment within meaning of the Act either because claim was not a claim for construction work under a construction contract (or for the supply or related goods or services), or because there was no reference date in respect of which claim could be made - neither adjudicator had jurisdiction to determine payment claim - determinations void.
Patrick Stevedores Operations No. 2 Pty Ltd (C)
V8 Supercars Holdings Pty Ltd v Lucas Dumbrell Investments Pty Ltd [2014] NSWSC 1391
Supreme Court of New South Wales
Pembroke J
Contract - separate questions relating to proper construction of two racing entitlement contracts (REC) in same form - parties to first contract included V8 Holdings, V8 Supercars Australia Pty Ltd (V8SCA) and first defendant - parties to second contract included V8 Holdings, V8SCA and second defendant - defendants operated motor racing team that entered V8 Supercars in motor racing events - relationship between each team and V8 Holdings and V8SCA governed by terms of respective REC - meaning of clause of contract enlivened when a team failed to submit an entry registration form by certain date - defendants contended that sale of rights under clause must be by tender and by no other means - plaintiffs contended clause did not state expressly or by necessary implication that contemplated sale must be by tender - held: plaintiffs' construction favoured - clause did not compel a sale by tender - plaintiffs succeeded on separate questions.
V8 Supercars Holdings Pty Ltd (B)
ICM Investments Pty Ltd v San Miguel Corporation and Berri Ltd [2014] VSCA 246
Court of Appeal of Victoria
Nettle, Santamaria & Beach JJ
Contract - corporations - illegality - Berri manufactured and marketed beverages - San Miguel was beverage and packaging company - ICM was company with interests in food and beverage manufacturing - majority of Berri's shares owned by companies associated with ICM - balance owned by institutional investors - ICM and San Miguel entered transaction documents whereby San Miguel acquired institutional investors' shares in Berri and agreed to sell their shares in Berri in tranches -  following exercise of a put option, San Miguel acquired remaining 49 per cent of Berri from ICM - ICM claimed damages from San Miguel and Berri - ICM contended Berri was required to declare and pay, and San Miguel was required to procure declaration and payment of, a fully franked dividend to ICM immediately prior to completion of transfer of ICM's shares to San Miguel - primary judge found San Miguel and Berri breached obligations under transaction documents, but ultimately concluded ICM had not proved it had suffered any loss and damage - held: appeal allowed -  judgment for ICM against San Miguel for damages for breach of put and call option deed in amount of dividend together with amount of franking credits - Berri's cross-appeal allowed -  San Miguel's cross appeal dismissed.
ICM Investments Pty Ltd (B)
Northern Midlands Council v Telstra Corporation Ltd [2014] TASSC 54
Supreme Court of Tasmania
Blow CJ
Environment and planning - Telstra obtained permit for erection of tower pursuant to Land Use Planning and Approvals Act 1993 (Tas) - Council contended permit was of no effect as a result of the commencement of a new interim planning scheme - council contended permit issued pursuant to tribunal's decision was of no effect, and that Telstra needed to apply for a fresh permit under the interim planning scheme - proper construction of s62(3) - held: Act did not contain a coherent scheme in relation to status of permits, applications and appeals when a planning scheme was superseded by an interim planning scheme - when s62(3) applied and tribunal made determination requiring granting of a new permit in accordance with a superseded planning scheme, permit would have effect as if that planning scheme had not been superseded - Telstra could lawfully undertake development in accordance with permit - declarations refused - action dismissed.
Northern Midlands Council (C G)
Gwelo Developments Pty Ltd v Brierty Ltd [2014] NTSC 44
Supreme Court of the Northern Territory
Kelly J
Security of payments - parties entered construction contract for performance of subcontract works in connection with development of shopping centre - payment disputes arose - defendant served adjudication application on plaintiff under s27 Construction Contracts (Security of Payments) Act (NT) seeking adjudication of both disputes - plaintiff did not consent to simultaneous adjudication - defendant withdrew application and made two fresh applications - plaintiff claimed payments disputes had been subject of previous application and that s27 precluded making of further application- an application has already been made - held: there was no reason to refuse to grant a remedy on discretionary grounds - s 27 applied to preclude a party from making a further application for adjudication where an application in relation to the same payment dispute had been made at any time in the past - no need for application to be still on foot - s27 precluded a party from making application for an adjudication where the applicant had withdrawn the earlier application and where the first application sought adjudication of more than one payment dispute without the consent of the other party - applications not validly made and of no effect.
Gwelo Developments Pty Ltd (C)