Daily Insurance: Tuesday, 28 April 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)
Hargood v OHTL Public Company Ltd (NSWSC) - contract - plaintiff injured at hotel in Bangkok - exclusive jurisdiction clause in guest registration form was not part of contract - Court not clearly inappropriate forum - stay refused
Shuetrim v FSS Trustee Corporation (NSWSC) - contract - insurance - superannuation - plaintiff entitled to total and permanent disablement benefits under policies
Metgasco Ltd v Minister for Resources and Energy (NSWSC) - judicial review - unlawful suspension of operations at gas exploration well - decisions quashed
Victorian Workcover Authority v Stoddart (Vic) Pty Ltd (VSC) - accident compensation - third party breached duty of care to injured worker - Authority entitled to indemnity
Daunt v Daunt (VSCA) - constructive trust - evidence - transfer of property from parents to child - no undue influence - appeal dismissed
Summaries With Link (Five Minute Read)
Hargood v OHTL Public Company Ltd [2015] NSWSC 446
Supreme Court of New South Wales
Davies J
Contract - private international law - negligence - plaintiff injured at hotel in Bangkok sued owners operators and managers of hotel - proceedings served on defendant in Hong Kong and Thailand - defendants sought orders pursuant to rr11.7 & 12.11 Uniform Civil Procedure Rules 2005 that proceedings be stayed on basis Court was inappropriate forum or that no reasonable cause of action disclosed against defendants - plaintiff accepted only appropriate defendant was first defendant - held: exclusive jurisdiction notation on Guest Registration Form signed by plaintiff when she checked into hotel was not term of contract between parties - contract made at time reservation made, not at time of check-in at hotel - defendant did not discharge onus to show Court was inappropriate forum - stay refused - notice of motion dismissed.
Shuetrim v FSS Trustee Corporation [2015] NSWSC 464
Supreme Court of New South Wales
Stevenson J
Contract - insurance - plaintiff was member of superannuation fund - trustee of fund effected insurance policies with second defendant (MetLife) and third defendant (TAL) - plaintiffs sought declarations TAL and MetLife “constructively denied” his claims under policies by not having made any decision until certain dates, and that decisions themselves were  “void and of no effect” - plaintiff also sought declarations he satisfied definition of “Total and Permanent Disablement” in policies and orders TAL and MetLife pay him amounts with interest under s 57 Insurance Contracts Act 1984 - held: no breach of insurers’ duty of good faith and good dealings - plaintiff sustained onus of showing he satisfied definitions of TPD in policies - plaintiff entitled to total and permanent disability benefits.
Metgasco Ltd v Minister for Resources and Energy [2015] NSWSC 453
Supreme Court of New South Wales
Button J
Judicial review - plaintiff sought judicial review of decision of Minister by delegate to suspend operations approved under Petroleum Exploration License at gas exploration well pursuant to s22(3A) Petroleum (Onshore) Act 1991 (NSW) - construction of Act and instruments created pursuant to Act - lawfulness of delegate’s decisions - ss3, 22, 22(3A), 22(3A)(b), 22(3B)(b), 22(6), 22(6)(a), 22(6)(b), 22(6)(c), 22(7) & 136A - held: decision to suspend (the first decision) was invalid because it was not preceded by compliance with procedural fairness regime under Act - decision to confirm the first decision was invalid because it purported to confirm a decision that was itself invalid - second decision was also separately invalid on various grounds - decisions quashed.
Victorian Workcover Authority v Stoddart (Vic) Pty Ltd [2015] VSC 149
Supreme Court of Victoria
J Forrest J
Accident compensation - worker injured when he fell from roof of house under construction - worker settled his claim against employer and roofing company - determination of recovery claim under s138 Accident Compensation Act 1985 (Vic) by Victorian WorkCover Authority (VWA) against roofing company - VWA held roofing company partly responsible injures and payment of compensation - VWA conceded employer must also carry a share of responsibility for injuries - whether roofing company owed duty of care to worker and if so, whether it breached duty - percentage responsibility which roofing company should bear as required by s138(3) if it breached duty - ss49 & 51 Wrongs Act 1958 (Vic) - held: roofing company owed common law duty of care to worker - roofing company breached its duty of care - risk of injury was patently foreseeable - roofing company’s failure to take precaution was cause of worker’s injuries - VWA entitled to be indemnified by roofing company in relation to payments of compensation by it for worker’s injuries - Factor X of formula prescribed by s138(3) was 50 per cent.
Daunt v Daunt [2015] VSCA 58
Court of Appeal of Victoria
Redlich, Santamaria & Kyrou JJA
Constructive trust - evidence - parents (Mr and Mrs Daunt) were registered proprietors of property - parents had three children - parents transferred property to respondent son and Mr Daunt - appellant son lodged caveat on title to property - appellant claimed respondent owed a fiduciary duty to parents by being power of attorney - appellant claimed respondent exercised undue influence over parents to procure transfer of property to himself to defeat legitimate claims of co-beneficiaries of parents’ estate, being appellant and sister - primary judge dismissed proceedings - ss91 & 178 Evidence Act 2008 - held: trial judge erred in relying on evidence of VCAT’s refusal to appoint administrator -  determination inadmissible without certificate - respondent rebutted presumption of undue influence - appeal dismissed.