Daily Insurance: Friday, 22 May 2015 View in browser

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

Daily Insurance

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Executive Summary (One Minute Read)
Kendirjian v Lepore (NSWCA) - professional negligence - solicitors’ duties - conduct protected by advocate’s immunity - appeal dismissed
Russo v Desiatnik (No 3) (NSWSC) - costs - barristers’ costs - unreasonable rejection of offer of settlement - indemnity costs ordered
Note Printing Australia Ltd v Leckenby (VSCA) - corporations - entitlement to be indemnified prior to verdict in criminal proceedings - appeal dismissed
MJ Arthurs Pty Ltd v Portfolio Housing Pty Ltd (QCA) - construction contract - time at which entitlement to profit share under oral agreement arose - appeal allowed
Lee v RACQ Insurance Ltd (QSC) - motor accidents insurance - insurer enjoined from reducing rehabilitation services provided pursuant to s51(3) Motor Accident Insurance Act 1994 (Qld)
Summaries With Link (Five Minute Read)
Kendirjian v Lepore [2015] NSWCA 132
Court of Appeal of New South Wales
Macfarlan & Leeming JJA
Professional negligence - solicitors’ duties - advocate’s immunity - applicant travelling in vehicle - applicant injured when vehicle collided with other vehicle  - first respondent solicitor commenced proceedings on applicant’s behalf against driver of other vehicle - driver admitted liability - date fixed for hearing on quantum -  solicitor  briefed second respondent barrister to appear for applicant - driver’s legal representatives communicated offer to settle to respondents - applicant alleged respondents did not advise him of amount of settlement offer and rejected it absent instructions on basis it was too low - applicant sued respondents  in  negligence claiming difference between settlement offer and judgment as damages - primary judge summarily dismissed proceedings on basis respondents immune from suit under advocates’ immunity principle - held: allegedly negligent advice or omission to advise constituted out of Court conduct which led to continuation of Court proceedings - conduct protected by advocate’s immunity - appeal dismissed.
Russo v Desiatnik [2015] NSWSC 606
Supreme Court of New South Wales
Button J
Indemnity costs - solicitors’ costs - dispute concerning whether barrister’s fees were valid and whether he was entitled to interest up to judgment - Court dismissed solicitor’s appeal and upheld barrister’s cross-appeal - barrister sought indemnity costs from date of offer of settlement - held: Court persuaded it was unreasonable for solicitor to reject offer of settlement - indemnity costs ordered.
Note Printing Australia Ltd v Leckenby [2015] VSCA 105
Court of Appeal of Victoria
Tate, Whelan & Ferguson JJA
Corporations - applicant sought leave to appeal from trial judge’s orders upholding respondent’s entitlement to be indemnified by applicant for legal costs and expenses incurred in defending criminal proceedings in Supreme Court which remained on foot -  whether respondent entitled to be indemnified for ongoing legal costs during course of criminal proceedings and before verdict, or whether entitlement did not arise until and unless criminal proceedings had ended and there was ‘not guilty’ verdict in favour of respondent - construction of deed of indemnity - prohibition in s199A(3)(b) Corporations Act 2001 - held: respondent had present entitlement to be indemnified prior to verdict - leave to appeal granted - appeal dismissed.
MJ Arthurs Pty Ltd v Portfolio Housing Pty Ltd [2015] QCA 86
Court of Appeal of Queensland
Gotterson and Philippides JJA & A Lyons J
Construction contract - appellants appealed against finding by primary judge as to time at which respondents’ entitlement to profit share arose under oral agreement between them and appellants - appellants contended entitlement arose in respect of any given construction contract only when contract completed and actual profit could be ascertained - respondents contended entitlement arose when all administration work necessary for procuring it was completed by first respondent’s director - held: primary judge erred in finding respondents’ entitlement to profit share on construction contract arose when first respondent presented it for execution - in order to derive entitlement respondents required to perform tasks and responsibilities after presentation of construction contract for execution and up to point of completion - appeal allowed.
Lee v RACQ Insurance Ltd [2015] QSC 120
Supreme Court of Queensland
Dalton J
Motor accidents insurance - applicant insured was travelling in vehicle - applicant injured in head-on collision with another vehicle - insurer stated it would meet ‘reasonable and appropriate cost’ of insured’s rehabilitation without admitting liability under s39(1)(a)(iv) Motor Accident Insurance Act 1994 (Qld) - insurer gave notice to insured that it would not pay rehabilitation costs past set date -  insured claimed insurer prevented from rescinding decision to pay costs by s51 - insurer contended claim against it was fraudulent - insured sought interlocutory injunction restraining insurer from ceasing to pay the costs - whether prima facie case - balance of convenience - held: insured had shown prima facie case - Court satisfied in all circumstances to make order that insurer was enjoined from reducing any rehabilitation services provided pursuant to s51.
Among the Rocks
By Robert Browning

Oh, good gigantic smile o’ the brown old earth,
      This autumn morning! How he sets his bones
To bask i’ the sun, and thrusts out knees and feet
For the ripple to run over in its mirth;
      Listening the while, where on the heap of stones
The white breast of the sea-lark twitters sweet.

That is the doctrine, simple, ancient, true;
      Such is life’s trial, as old earth smiles and knows.
If you loved only what were worth your love,
Love were clear gain, and wholly well for you:
      Make the low nature better by your throes!
Give earth yourself, go up for gain above!

Robert Browning