| Birdsall v Motor
Trades Association of Australia Superannuation Fund Pty Ltd (NSWCA) - insurance -
member of fund did not satisfy definition of total and permanent disablement in
group life insurance policy - appeal dismissed (I B) |
| Morocz
v Marshman (NSWSC) - medical negligence - doctor did not
fail to warn patient of risks or side effects of surgical procedure - doctor
not negligent (I) |
| Geitonia
Pty Ltd t/as Trustee for the Annandale Unit Trust v Westpac Banking Corporation
(NSWSC)
- mortgages - second mortgagee entitled to require first mortgagee to transfer
mortgage to it (B) |
| Sierocki v Klerck (No
2) (QSC) - defamation -
assessment of damages - injunctive relief (I) |
| Tschirn v Australian
Executor Trustees Ltd (SASC) - Wills and estates - action alleging appellants unlawfully took advantage
of deceased and diminished estate for own benefit - summary judgment refused - appeal
dismissed (B) |
| Bride v Shire of
Katanning (WASCA)
- pleadings - dismissal of application to amend defence and counterclaim, and
to join third parties - appeal dismissed (I B) |
| Field Deployment
Solutions Pty Ltd v Jones (WASC) - judicial review - futility - availability of alternative remedy
- application to quash adjudication decisions dismissed (B C G) |
| Summaries With Link (Five Minute Read) |
Birdsall
v Motor Trades Association of Australia Superannuation Fund Pty Ltd [2015] NSWCA 104
Court of Appeal of New South
Wales
Basten, Meagher & Gleeson
JJA
Insurance - trusts - primary
judge determined appellant did not satisfy definition of Total and Permanent
Disablement (TPD) in group life insurance policy issued by first respondent
insurer to second respondent trustee of superannuation fund - determination made
on evidence notwithstanding definition of TPD in policy provided relevant
opinion as to incapacity be that of insurer - appellant challenged correctness
of determination - ss13, 14 & 48A Insurance
Contracts Act 1984 (Cth) - ss6, 14, 18, 37, 41, 46 Superannuation (Resolution of Complaints) Act 1993 (Cth) - held: primary
judge did not err in not being satisfied appellant was within definition of TPD
in policy - not necessary to consider questions concerning trustee’s position
and relief which would arise if the appeal successful - appeal dismissed.
Birdsall
(I B)
|
Morocz
v Marshman
[2015] NSWSC 325
Supreme Court of New South
Wales
Harrison J
Medical negligence - plaintiff
suffered from condition causing sweaty palms - plaintiff contended defendant
doctor failed to warn her of known risks and complications of surgery which he
performed on her, and to tell her other things which he should have mentioned
having regard to severity of symptoms and success rate of operation - duty to
warn and informed consent - ss5B, 5C, 5D, 5H, 5I, 5O & 5P Civil Liability Act 2002 (NSW) - held: plaintiff
did not establish doctor failed to warn her of any material risk or side effect
known or understood in 2007 to be inherent risk or side effect of surgery -
Court not satisfied doctor failed to warn her of any other risk or side effect
of procedure - no breach of duty - verdict for doctor.
Morocz
(I)
|
Geitonia
Pty Ltd t/as Trustee for the Annandale Unit Trust v Westpac Banking Corporation [2015] NSWSC 419
Supreme Court of New South
Wales
Ball J
Mortgages - first plaintiff
registered proprietor of property granted first ranking registered mortgage
over property to first defendant bank - first plaintiff also granted second
ranking registered mortgage second defendant - first plaintiff failed to make
payment to second defendant - bank declared events of default and demanded
amounts due - bank served notice under s57(2)(b) Real Property Act 1900 (NSW) - first plaintiff attempted to
exercise rights under s94(1) Conveyancing
Act 1919 (NSW) by requiring bank to transfer its mortgage first to it and
then to a company it nominated - first plaintiff sought declaration it was
entitled to obtain transfer of mortgage to company on payment to bank of amount
owing to it - first plaintiff also sought to restrain bank from transferring
mortgage to second defendant - construction of s94(1) - whether second
mortgagee could require first mortgagee to transfer its mortgage to second
mortgagee, or whether second mortgagee must nominate third person to whom
mortgage was to be transferred - any
third person - held: nothing to prevent second defendant from requiring bank
to transfer its mortgage to itself - that right took priority over any right first
plaintiff had - proceedings dismissed.
Geitonia
(B)
|
Sierocki
v Klerck (No 2)
[2015] QSC 92
Supreme Court of Queensland
Flanagan J
Damages - defamation - plaintiffs
claimed damages for defamation arising from 10 publications - two publications
occurred by email and balance posted on websites - plaintiffs were awarded
judgment against first, second, third, fourth and fifth defendants conditional
upon assessment of damages by Court under Ch 13, Pt 8 Uniform Civil Procedure Rules 1999 (Qld) - entry of judgment stood
as determination of elements of plaintiffs’ claim for damages - ss34, 35(2), 36
& 39 Defamation Act 2005 (Qld) -
effect of defamatory publications on plaintiffs - damages assessed - injunctive
relief granted.
Sierocki
(I)
|
Tschirn
v Australian Executor Trustees Ltd
[2015] SASC 58
Supreme Court of South
Australia
Parker J
Summary judgment - Master dismissed
appellants’ application for summary
judgment in proceedings in which respondent executor alleged appellants
unlawfully took advantage of relationship with deceased thereby diminishing estate
for own benefit - appellants sought summary judgment on basis statement of
claim did not identify which transactions were allegedly utilised for appellants’
benefit and to what extent - held: real questions of fact and law to be decided
at trial - Master did not err in not finding no reasonable basis for claim - r232(2)
Supreme Court Civil Rules 2006 (SA) not
satisfied - Master did not err in declining to make summary judgment order -
appeal dismissed.
Tschirn
(B)
|
Bride
v Shire of Katanning
[2015] WASCA 77
Court of Appeal of Western
Australia
Newnes & Murphy JJA
Pleadings - Shire sued
appellant for unpaid rates on land - primary judge dismissed appellant’s application
to amend defence and counterclaim, and to join third parties - primary judge
also dismissed counterclaim - application to amend defence and counterclaim had
arisen after appellant failed to resist Shire’s claims for rates and judgment
had been entered in favour of Shire - proposed claim against bank and solicitors
arose against background of orders made under Vexatious Proceedings Restriction Act 2002 (WA) - Pt 5 rr32 & 43(2)(g)(i)
Supreme Court (Court of Appeal) Rules
2005 (WA) - held: no grounds of appeal had reasonable prospect of succeeding
- alternatively appellant failed to comply with pt 5 r 32 - appeal dismissed.
Bride
(I B)
|
Field
Deployment Solutions Pty Ltd v Jones
[2015] WASC 136
Supreme Court of Western Australia
Mitchell J
Judicial review - Court held State
Administrative Tribunal erred in finding agreement was not a construction
contract under Construction Contracts Act
2004 (WA) - applicant sought to quash adjudication decisions made between
time of Tribunal’s decision and determination of appeal - decisions had been made
on basis the agreement was not a construction contract - ss28, 31(3) & 46 Construction Contracts Act 2004 (WA) - held:
even if jurisdictional error established, appropriate to dismiss application
for the two discretionary reasons of futility due to operation of s31(3), and the
availability of alternative remedy - application dismissed without determining whether
jurisdictional error established.
Field
(B C G)
|
