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


Tuesday, 24 February 2015

Executive Summary (One Minute Read)
Ke Qin Ren v Hong Jiang; Yi Cheng Jiang v Wan Ze Property Development (Aust) Pty Ltd (in liq) (NSWCA) – costs – Calderbank offer – offer to consent to dismiss abuse of process motion – indemnity costs granted
Mordue v QBE Insurance (Australia) Ltd (NSWSC) – motor accident compensation – QBE bound by admission of liability despite withdrawal – Assessor’s exemption of claim quashed
Gibb v Gibb (VSC) – testator’s family maintenance – solicitors’ duties – misconceived application for removal of estate’s trustees dismissed – adjournment to determine whether costs order to be made against solicitors
Dean v Collins (WASCA) – succession –dismissal of family provision application – security for costs of appeal refused
Summaries With Link (Five Minute Read)
Ke Qin Ren v Hong Jiang; Yi Cheng Jiang v Wan Ze Property Development (Aust) Pty Ltd (in liq) [2015] NSWCA 22
Court of Appeal of New South Wales
Barrett, Gleeson & Leeming JJA
Costs - Court allowed appeals in separate proceedings brought by parties - Court also dismissed respondents’ notice of motion contending that application for leave to appeal proceedings was abuse of process - Court set aside orders against applicant and first respondents and remitted proceedings – respondents ordered to pay active parties’ costs of appellate proceedings with costs of proceedings at first instance to be determined on remitter – parties sought variations of costs orders - applicants sought indemnity costs based on Calderbank letter – respondents sought more favourable order on basis appeals succeeded on point not run at first instance – held: unreasonable of respondent not to accept offer to discontinue abuse of process motion with no order for costs – applicants entitled to indemnity costs - essential point that summary judgment should be entered was advanced at first instance – much of time and expense incurred on appeal attributable to new points respondents raised unsuccessfully – respondents did not raise any new matter not already addressed – orders varied.
Ke Qin Ren
Mordue v QBE Insurance (Australia) Ltd [2015] NSWSC 98
Supreme Court of New South Wales
Adams J
Motor accidents compensation – plaintiff claimed against QBE under Motor Accidents Compensation Act 1999 (NSW) (MACA) for injuries suffered in motor car rally accident – plaintiff was passenger in vehicle driven by son - unregistered vehicle permit under Road Transport (Vehicle Registration) Act 1997 (NSW) issued in respect of vehicle attached a third party insurance policy issued by QBE – QBE first admitted liability then denied indemnity to driver - plaintiff sought to quash Claims Assessor’s conclusion claim must be exempted from determination on basis QBE had denied indemnity – s81 MACA – held: QBE bound by its notice admitting liability – no room for exercise of discretion to exempt claim - granting relief sought could not be regarded as potentially futile –decision quashed.
Gibb v Gibb [2015] VSC 35
Supreme Court of Victoria
McDonald J
Testator’s family maintenance – solicitors’ duties - children of deceased by mother as litigation guardian sought orders under Part IV Administration and Probate Act 1958 (Vic) by reference to deceased’s appointment of his parents to administer his estate – mother concerned deceased’s parents would not make proper provision for maintenance of children - held: no legal or factual basis upon which order could be made pursuant to s48 Trustee Act 1958 (Vic) for removal of deceased’s parents as trustees of estate - relief sought in originating motion misconceived - prima facie grounds on which Court might be satisfied plaintiffs’ solicitors contravened overarching obligation under ss18 & 24 Civil Procedure Act 2005 (Vic) – proceedings adjourned to determine whether costs order should be made against solicitors in interests of justice.
Dean v Collins [2015] WASCA 28
Court of Appeal of Western Australia
Murphy JA
Security for costs – succession – appellant sought family provision order under Family Provision Act 1972 (WASCA) in respect of late mother’s Will – Master dismissed appellant’s application – appellant appealed – respondents sought security for costs – held: Court not persuaded security for costs should be ordered – appellant’s case arguable - Court not persuaded appellant would be unable to meet adverse costs order – not unreasonable for appellant not to have paid costs of primary proceedings where there had been no taxation of costs below – not appropriate to have waited until after parties filed respective cases before making assessment whether security should be sought – application dismissed.