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

Insurance, Banking, Construction & Government

Wednesday, 26 November 2014

Executive Summary (One Minute Read)
Guild Insurance Ltd v Hepburn (NSWCA) - insurance - negligence - trespass - assault - claim against dentist - leave granted to join insurer - appeal dismissed (I)
King v Benecke (NSWCA) - professional negligence - solicitors' duties - client failed to establish loss caused by solicitor's breach - appeal dismissed (I)
Parker v Wish Designs Pty Ltd (NSWCA) - work injury damages - no error in assessment of damages - appeal dismissed (I C)
Rezaiee v Australian Broadcasting Corporation (No 2) (NSWSC) - defamation - leave to disclose discovered documents to police refused (I)
National Australia Bank Ltd v Smith (NSWSC) - misleading and deceptive conduct - breach of fiduciary duties - unjust contract - mortgages and guarantees set aside (B)
Radich v Kenway (QCA) - solicitors' costs - leave to appeal out of time against affirmation of solicitors' costs assessment refused (I)
Calvert v Badenach (TASSC) - solicitors' duties - solicitor's breach of duty to testator to advise in relation to risk of testator's family maintenance claim did not cause loss - unnecessary to decide whether duty also owed to beneficiary (I B)
Summaries With Link (Five Minute Read)
Guild Insurance Ltd v Hepburn [2014] NSWCA 400
Court of Appeal of New South Wales
Macfarlan, Meagher & Gleeson JJA
Insurance - negligence - trespass - assault - respondent claimed she was injured as result of wrongful dental advice and treatment by dentist - respondent claimed damages from dentist for trespass, assault and negligence - respondent sought leave under s6 Law Reform (Miscellaneous Provisions) Act 1946 (NSW) to join insurer as second defendant - respondent claimed insurer agreed to insure dentist against professional liability - primary judge granted leave to join insurer - held: Court would not ordinarily grant leave under s6 unless plaintiff demonstrated there was real possibility insured would not be able to satisfy judgment against it and there was arguable case that insurer had issued policy under which insured entitled to indemnity - there was arguable case insurer liable to indemnify dentist under policies in force when dentist's allegedly wrongful acts occurred - it was arguable dentist might not be able to meet a judgment obtained by respondent - it was not suggested respondent did  not have arguable claim for damages against dentist - appeal dismissed.
Guild Insurance Ltd (I)
King v Benecke [2014] NSWCA 399     
Court of Appeal of New South Wales
Basten, Macfarlan & Ward JJA
Professional negligence - solicitors' duties - appellant retained solicitor to act in transactions by which appellant sought to acquire control of  properties from father and uncle - family dispute arose concerning distribution of property - appellant paid amount to family in settlement of disputes - appellant sued solicitor for professional negligence - appellant claimed that, as result of solicitor's breach of duty and retainer, he was required to pay to more under settlement agreement than he would have if solicitor had ensured earlier transactions were binding - primary judge found solicitor breached professional duty but that appellant did not establish breach caused him loss - held: primary judge's conclusion that appellant did not pay more under settlement than he would have if solicitor had not breached duty was not contrary to incontrovertible facts or uncontested testimony, glaringly improbable or contrary to compelling inferences - appellant failed to prove he had suffered a financial loss caused by solicitor in accordance with s5D Civil Liability Act 2002 (NSW) - appeal dismissed.
King (I)
Parker v Wish Designs Pty Ltd [2014] NSWCA 401
Court of Appeal of New South Wales
Emmett JA & Tobias AJA
Damages - appellant worker injured in course of employment by respondent employer - worker appealed from assessment of damages - worker contended trial judge erred in failing to have regard to his loss of capacity to earn as an independent contractor - held: worker had claimed damages before trial judge on basis he would have continued to be an employee and not that he would have left his employment and become an independent contractor - approach adopted by trial judge followed basis of claim advanced on behalf of worker - not now open to invite Court to assess damages on different basis - appeal dismissed.
Parker (I C)
Rezaiee v Australian Broadcasting Corporation (No 2) [2014] NSWSC 1656
Supreme Court of New South Wales
McCallum J
Discovery defamation action arising out of television broadcast relating to allegations of organised people smuggling - programme included extracts of covertly-obtained audio recordings and video footage of plaintiff - recordings discovered by defendant in proceedings - plaintiff sought leave to provide discovered documents to police for purpose of investigation of possible criminal activity - r21.7(1) Uniform Civil Procedure Rules 2005 (NSW) - held: Court not persuaded plaintiff should have leave to disclose discovered documents - plaintiff's concern as to possible commission of offence was to a degree speculative - no basis for concluding or suspecting that what had been published in matter complained of was more than was reasonably necessary in public interest - potential prejudice to defendant was legitimate concern - plaintiff's concerns as to invasion of privacy could have been reported to police much earlier and could still be subject of a report regardless of outcome of present application - leave refused to disclose or use defendant's discovered documents otherwise than for purposes of conduct of proceedings.
Rezaiee (I)
National Australia Bank Ltd v Smith [2014] NSWSC 1605
Supreme Court of New South Wales
Slattery J
Loans and mortgages - unjust contracts - company borrowed amount from bank to fund its purchase of business - principal and wife guaranteed company's loan obligations under various facilities - guarantors mortgaged family home to secure guarantee obligations - company defaulted - guarantors sold their property to reduce liability bank - bank claimed amount from guarantors - guarantors cross-claimed against bank on grounds guarantees were unjust under Contracts Review Act 1980 (NSW) and were occasioned by misleading and deceptive or unconscionable conduct within Australian Securities and Investment Commission Act 2001 (Cth) and Fair Trading Act 1981 (NSW) - held: guarantors able to set aside mortgages and guarantees they signed as part of bank transaction which they entered on grounds including misleading and deceptive conduct by bank through its officer, for breaches of fiduciary duty, for contraventions of ASIC Act and under Contracts Review Act - parties to bring in short minutes to give effect to reasons.
National Australia Bank Ltd (B)
Radich v Kenway [2014] QCA 301
Court of Appeal of Queensland
M McMurdo P; Applegarth & Boddice JJ
Solicitors' costs - Magistrates Court affirmed costs assessment in respect of two bills issued by applicant solicitor to clients - solicitor sought leave to appeal out of time against District Court's dismissal of appeal - held: applicant had not demonstrated any error by District Court in dismissing appeal from review undertaken by Magistrate - while requirements of r720(2) Uniform Civil Procedure Rules 1999 (Qld) were not met in initial costs assessment by reason of assessor's failure to comply with the rules of natural justice, process adopted by Magistrate to undertake assessment himself was the most fair and efficient in circumstances - breach of rules of natural justice overcome - extension of time for leave to appeal refused.
Radich (I)
Calvert v Badenach [2014] TASSC 61
Supreme Court of Tasmania
Blow CJ
Solicitors' duties - legal practitioner took instructions from client for preparation of will - will prepared and executed by testator - testator left whole estate to plaintiff - testator died - testator made no provision for daughter- daughter made application under Testator's Family Maintenance Act 1912 (Tas) - judge ordered payment of amount out of estate - plaintiff contended solicitor and firm negligent in failing to advise testator of risk of daughter making claim and failing to advise him of options to arrange affairs so as to avoid claim which could disturb his testamentary wishes - held: Court accepted solicitor owed testator duty to take instructions in relation to possible claim under the Act and that he breached duty - Court not satisfied that had solicitor discharged duty to testator, testator would have taken steps to frustrate possible claim - Court therefore not required to decide whether solicitor owed  plaintiff, as an intended beneficiary, any duty to advise as to risk of claim being made or steps that could be taken to reduce or extinguish testator's estate in order to avoid consequences of such claim.
Calvert (I B)