Insurance, Banking, Construction & Government: Tuesday, 28 April 2015 View in browser

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

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Insurance, Banking, Construction & Government

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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 (I)
Shuetrim v FSS Trustee Corporation (NSWSC) - contract - insurance - superannuation - plaintiff entitled to total and permanent disablement benefits under policies (I B)
Metgasco Ltd v Minister for Resources and Energy (NSWSC) - judicial review - unlawful suspension of operations at gas exploration well - decisions quashed (I B C G)
Daunt v Daunt (VSCA) - constructive trust - evidence - transfer of property from parents to child - no undue influence - appeal dismissed (I B)
Victorian Workcover Authority v Stoddart (Vic) Pty Ltd (VSC) - accident compensation - third party breached duty of care to injured worker - Authority entitled to indemnity (I C G)
Adelaide City Council v Sarris (SASCFC) - environment and planning - area of balcony included in calculation of building floor area - appeal dismissed (C G)
Delmere Holdings Pty Ltd v Green (WASC) - security of payments - construction contract - adjudication decision quashed (C G)
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.
Hargood (I)
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.
Shuetrim (I B)
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.
Metgasco (I B C G)
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.
Daunt (I B)
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.
Adelaide City Council v Sarris [2015] SASCFC 48
Full Court of the Supreme Court of South Australia
Kourakis, Gray & Nicholson JJ
Environment and planning - respondents lived in adjoining - second respondent sought development approval for renovation and extension including construction of second floor rear facing balcony - Corporation of City of Adelaide excluded balcony from  calculation of plot ratio and approved second respondent’s application - first respondent sought to review the categorisation of development - Court decided in favour of first respondent - Council appealed - ss35, 38 & 86(1) Development Act 1993 (SA) - held : trial judge’s decision open on evidence and within area of special expertise of Environment, Resources and Development Court - appeal dismissed.
Adelaide (C G)
Delmere Holdings Pty Ltd v Green [2015] WASC 148
Supreme Court of Western Australia
K Martin J
Security of payments - construction contract - applicant and other party entered subcontract accepted to be a “construction contract” under Construction Contracts Act 2004 - applicant sought to quash determination of adjudication dispute by respondent adjudicator under the Act which required applicant to pay other party amount - applicant contended adjudicator never jurisdictionally enabled to proceed with adjudication as there was no  relevant ’payment claim’ issued by other party - ss3, 6, 25, 26 & 31 - held: adjudicator failed to recognise relevance of material put before him by applicant and to appreciate significance of material under Act - adjudicator wrongly proceeded to determine application on incorrect and misconceived basis that payment claim existed and payment dispute existed - decision quashed.
Delmere (C G)