Daily Insurance: Tuesday, 30 June 2015 View in browser
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A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Daily Insurance

Executive Summary (One Minute Read)
Prospect Resources Ltd v Molyneux (NSWCA) - contract - subscription agreement - conditions precedent not satisfied - no waiver of satisfaction of conditions precedent by letter - appeal dismissed
Williams v Pisano (NSWCA) - building and construction - misleading representations made in connection with sale of residential premises did not constitute conduct in trade or commerce - appeal allowed
Hoyn v NRMA Insurance Ltd (NSWSC) - administrative law - motor accidents compensation - decision to refer medical assessment for further assessment quashed
Mullin v CIC Allianz Australia Ltd (NSWSC) - administrative law - motor accidents compensation - referral of medical dispute for further assessment - ‘additional relevant information’ - no error by Proper Officer - summons dismissed
Montclare v Metlife Insurance Ltd (VSC) - insurance - life insurance - fraudulent misrepresentation - insurer entitled to avoid claim
Quann v Wilson & Atkinson (A Firm) (WASC) - legal practitioners - confidential information - application to restrain lawyers from acting for plaintiffs in proceedings dismissed
Summaries With Link (Five Minute Read)
Prospect Resources Ltd v Molyneux [2015] NSWCA 171
Court of Appeal of New South Wales
Beazley P; Ward & Leeming JJA
Contract - appellant company and respondent consortium entered subscription agreement under which consortium agreed to subscribe for shares in company's capital - company claimed conditions governing obligation to subscribe were satisfied and that consortium was required to pay - consortium claimed conditions were not satisfied and that it was entitled to terminate subscription agreement - primary judge found company had not reasonably satisfied consortium that conditions precedent had been satisfied and that there was no waiver of satisfaction of conditions precedent - company appealed - held: letter from company to consortium did not constitute waiver of ‘conditions precedent’ - provision of letter alone insufficient to meet requirement that company ‘reasonably satisfy’ consortium there was waiver of ‘conditions precedent’ - no error in exercise of primary judge’s discretion to order indemnity costs warranting appellate intervention - appeal dismissed.
Williams v Pisano [2015] NSWCA 177
Court of Appeal of New South Wales
Bathurst CJ; McColl & Emmett JJA
Building and construction - trade practices - negligence - plaintiffs purchased house from owner-builder and husband - house was profoundly defective in its construction - sale preceded by false information given by owner-builder and appellant husband to real estate agent which was then passed on with their authority to purchasers - information played significant part in purchasers' decision to buy - purchasers sought damages for reasonable cost of remedying defects - primary judge gave judgment for purchasers - primary judge satisfied sale was a transaction in trade or commerce and that conduct complained of was in trade or commerce - falsity of representations established - mis-statements made in advertising material direct and intended positively to influence reader to buy - misleading conduct induced purchasers to enter contract - reliance established - claim in negligence not made out - held: primary judge erred in concluding that representations constituted conduct engaged in by appellant in trade or commerce - no contravention on the part of appellant of either ss18 or 30 Australian Consumer Law - appeal allowed.
Hoyn v NRMA Insurance Ltd [2015] NSWSC 814
Supreme Court of New South Wales
Adams J
Administrative law - motor accidents compensation - plaintiff injured in motor vehicle accident - plaintiff sought assessment by Medical Assessment Service - doctor assessed permanent impairment at 12% - plaintiff examined anew by different doctor - first defendant sought and was granted further medical assessment on basis report provided additional relevant information - plaintiff contended Proper Officer misconstrued s62(1A) Motor Accidents Compensation Act 1999 and acted outside jurisdiction referring subsisting medical assessment for further assessment - ‘additional relevant information’ - held: further medical opinion as to issue that merely differed with earlier opinion as to issue was not relevantly additional information - in present case, issues had been subject of earlier consideration - mere fact that two doctors differed as to significance of issues was not additional information in relevant sense - further doctor’s report not capable of constituting information dealing with different issues to those already considered and subject of opinions expressed by earlier doctor - Proper Officer’s decision quashed.
Mullin v CIC Allianz Australia Ltd [2015] NSWSC 831
Supreme Court of New South Wales
Beech-Jones J
Administrative law - motor accidents compensation - plaintiff bus passenger injured when bus stopped and arm became trapped between other passenger and railing - plaintiff obtained assessment of medical dispute by Medical Assessment Service under Motor Accidents Compensation Act 1999 - plaintiff sought judicial review of Proper Officer’s determination to refer medical dispute for another assessment - plaintiff contended proper officer wrongly construed s62 - plaintiff contended Proper Officer erred in only considering that information in possession of insurer at time of assessment was not ‘additional’ and in refusing to consider whether information not in insurer’s possession but was reasonably available to it at that time was ‘additional’ - held: no error on part of Proper Officer - Act did not impose obligation on Proper Officer to inquire into whether party could have reasonably obtained certain information but failed to do so before concluding information was ‘additional’ - summons dismissed.
Montclare v Metlife Insurance Ltd [2015] VSC 306
Supreme Court of Victoria
Ginnane J
Insurance - life insurance - plaintiff sued insurer claiming $1.1 million as life insurance benefit - life insured died by suicide on 22 January 2001- insurer admitted it entered into a contract of insurance with plaintiff on the life of deceased life-insured and that, from 10 June 1999, benefit payable under insurance was $1.1 million - however insurer contended plaintiff not entitled to payment of sum - held: life insurance cover obtained by plaintiff pursuant to contracts under which he was an insured for purposes of Insurance Contracts Act 1984 (Cth) - insurer issued insurance and was party to contracts of insurance - life-insured made fraudulent misrepresentation to insurer concerning medical history before contracts entered  - misrepresentation had effect as though it had been made by plaintiff -  insurer validly avoided contracts of insurance under s29 - proceeding dismissed.
Quann v Wilson & Atkinson [2015] WASC 229
Supreme Court of Western Australia
Le Miere J
Legal practitioners - confidential information - plaintiff instructed lawyers on two retainers - first retainer started in March 2004 and ended in August 2004 - second began about November 2006 and ended before 7 October 2008 - plaintiff sought that lawyers be restrained from acting as solicitors or counsel  plaintiffs in proceedings -  plaintiff invoked  court's jurisdiction founded on the right of former client to protection of his confidential information - plaintiff also invoked Court's inherent jurisdiction to control its officers’ conduct - held: claim based on protection of confidential information failed because plaintiff failed to establish legal advice given by firm was relevant to any issue in proceedings - fair minded, reasonably informed member of public would not conclude proper administration of justice required that firm be prevented from acting for plaintiffs in proceedings in interests of the protection of the integrity of judicial process and administration of justice - application dismissed.