Daily Insurance: Tuesday, 22 March 2016
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A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

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Executive Summary (One Minute Read)
Montanile v Board of Trustees of the National Elevator Industry Health Benefit Plan (Supreme Court of the United States) - equity - employee benefits plan sought enforcement of equitable lien over participant's settlement funds - enforcement of lien refused - case remanded
Dank v Nationwide News Pty Ltd (NSWSC) - damages - defamation - mitigating impact of true imputation reduced damages to be awarded for plaintiff's success to zero - judgment for plaintiff - no damages awarded
Legatum Limited v Salim (NSWSC) - judgments and orders - registration and enforcement of judgment obtained in Dubai International Financial Centre Court
Tan v Russell (VSC) - contract for sale - no valid termination of contract by email sent to real estate agent - plaintiffs' claim failed
Thorne Developments Pty Ltd v Thorne (QCA) - corporations - deed of appointment - trust deed - appointment of respondent as trustee of trust valid - respondent not required by trust deed to vacate office - appeal dismissed
BGC Construction Pty Ltd v Citygate Properties Pty Ltd (WASC) - construction contract - application to enforce adjudicator's determinations refused - determinations quashed
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Summaries With Link (Five Minute Read)
Montanile v Board of Trustees of the National Elevator Industry Health Benefit Plan
Supreme Court of the United States: Docket No 14-723.
Coram: Roberts CJ, Scalia, Kennedy, Thomas, Ginsburg, Breyer, Alito, Sotomayor & Kagan JJ
Equity - petitioner injured by drunk driver - employee benefit plan regulated by Employee Retirement Income Security Act of 1974 (ERISA) paid amount for medical expenses. - petitioner sued and obtained settlement against drunk driver - Board sought reimbursement from settlement under subrogation clause of plan - petitioner's attorney refused - Board sued petitioner under §502(a)(3) ERISA - Board sought equitable lien on settlement funds or petitioner's property - petitioner contended there was no identifiable fund because he had spent most of settlement - Eleventh Circuit held that even if petitioner had dissipated fund, plan entitled to re-imbursement from petitioner's general assets - held: basis for Board's claim was equitable - if fund dissipated on non-traceable items, lien eliminated and plaintiff could not attach defendant's general assets - arguments for enforcement of equitable lien failed - case remanded for District Court.
Dank v Nationwide News Pty Ltd [2016] NSWSC 295
Supreme Court of New South Wales
McCallum J
Damages - defamation - three claims heard together - plaintiff failed on two claims and succeeded on the other - defendants contended that jury's finding that plaintiff oversaw administration of dangerous medication to footballers overwhelmed the “defamatory impact” of imputations on which plaintiff succeeded - defendants contended plaintiff entitled only to nominal damages - whether any damages should be awarded - ss22(3), 25 & 26 Defamation Act 2005 (NSW) - held: Court concluded that mitigating impact of true imputation reduced damages to extent there should be no award in plaintiff's favour - judgment for plaintiff - no damages awarded.
Legatum Limited v Salim [2016] NSWSC 298
Supreme Court of New South Wales
Schmidt J
Judgments and orders - enforcement of foreign judgment - plaintiff and defendant litigated claim in Dubai International Financial Centre Court - judgment given for plaintiff - plaintiff sought registration and enforcement of Dubai Court's judgment - onus -held: Court satisfied evidence established that the four considerations in Bhushan Steel Ltd v Severstal Export GmbH [2012] NSWSC 583 had been met - orders granted.
Tan v Russell [2016] VSC 93
Supreme Court of Victoria
Cameron J
Contract - sale of land - defendant was registered proprietor of company - plaintiffs sought declaration contract for sale of land was terminated by notice of termination sent by email to real estate agent - whether plaintiffs validly terminated contract by email within cooling off period under s31(3) Sale of Land Act 1962 (Vic) - Electronic Transactions (Victoria) Act 2000 (Vic) - implied or ostensible authority - statutory authority - held: real estate agent did not have necessary authority to receive notice of termination pursuant to s31 - plaintiff's claim failed - defendant complied with contractual obligations concerning notice of default and rescission - counterclaim succeeded.
Thorne Developments Pty Ltd v Thorne [2016] QCA 63
Court of Appeal of Queensland
Gotterson, Morrison & Phillipides JJA
Corporations - appellant was trustee of family discretionary trust - appellant deregistered - sole director (Mr Thorne) declared bankrupt - appellant's registration reinstated by ASIC under s601AH(1) Corporations Act 2001 (Cth) - different sole director appointed (Mr Casey) - by deed of appointment Thorne Mr Thorne, appointed respondent wife and brother as trustees of trust - brother relinquished office prior to appellant's reinstatement - appellant was refused declarations as to invalidity of respondent's appointment - primary judge held deed of appointment validly appointed respondent, no substance to contention appointment not bona fide exercise of power, and trust deed did not require respondent to vacate office - proper construction of deed of appointment and trust deed - s188 Bankruptcy Act 1966 (Cth) - ss601AD, 601AE & 601AH Corporations Act - ss10, 12 & 80(1) Trusts Act 1973 (Qld) - held: grounds of appeal failed - appeal dismissed.
BGC Construction Pty Ltd v Citygate Properties Pty Ltd [2016] WASC 88
Supreme Court of Western Australia
Tottle J
Construction contract - dispute concerning construction of extension to shopping centre - three applications - BGC sought leave to enter judgment against Citygate regarding two determinations made by adjudicator - Citygate sought to quash determinations - - whether adjudicator exceeded authority conferred by Construction Contracts Act 2004 (WA) - whether claims out of time - slip rule - balance of probabilities - rebuttal materials - “material personal interest “ - adequacy of reasons - ss26, 29, 31, 32 & 36 Construction Contracts Act - regs 4 & 5 Construction Contracts Regulations 2004 (WA) - held: application to enforce determinations dismissed - jurisdictional error established - determinations quashed.