Daily Insurance: Friday, 31 July 2015 View in browser
For optimised viewing please add "benchmark@benchmarkinc.com.au" to your safe senders list.
AR Conolly Company Lawyers.
A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Daily Insurance

Executive Summary (One Minute Read)
Thomas v Arthur Hughes Pty Ltd (NSWSC) - corporations - disposition of company’s assets - breach of directors’ duties - declarations and orders
Lahoud v Hooper (NSWSC) - discovery - application for preliminary discovery order to ascertain name of person who communicated with defendant - failure to make reasonable inquiries - summons dismissed
De Armas v Peters (NSWSC) - motor vehicle accident - insurance - subrogation - leave to appeal and cross-appeal refused
Cruise Oz Pty Ltd v AAI Ltd (QSC) - insurance contract - motor dealers insurance policy - damage or loss caused to applicant’s insured vehicles in flood at trade show - insurer required to indemnify applicant
Summaries With Link (Five Minute Read)
Thomas v Arthur Hughes Pty Ltd [2015] NSWSC 1027
Supreme Court of New South Wales
White J
Corporations - equitable remedies - directors’ duties - proceedings concerning disposition of company’s assets - liquidator of company claimed that director breached duty to act in good faith and not for improper purpose - transfer of shares and securities and provision of loans to companies controlled by director - held: director breached fiduciary and statutory duties - director entered transactions not for company’s benefit and where she had conflict between duty to company and personal interest - director also breached duty under s181(1) Corporations Act 2001 (Cth) - contracts rescinded - property transferred and fruits of property held on constructive trust - director and son personally liable to compensate company - corporate accessories liable as constructive trustees to re-transfer property and account for profit - orders and declarations - parties to bring in short minutes.
Lahoud v Hooper [2015] NSWSC 1026
Supreme Court of New South Wales
Adamson J
Discovery - plaintiff sought order for preliminary discovery against defendant in order to ascertain name of person who communicated with defendant concerning damage to building in which plaintiff had interest - Pt 6, Div 1 Civil Procedure Act 2005 (NSW) - ss14 & 15 Defamation Act 2005 (NSW) - ss94 & 96 Environmental Planning and Assessment Act 1979 (NSW) - held: plaintiff had failed to make reasonable inquiries and had therefore not established entitlement to relief sought - summons dismissed.
De Armas v Peters [2015] NSWSC 1050
Supreme Court of New South Wales
Wilson J
Motor vehicle accident - insurance - dispute arising from motor vehicle collision - plaintiff was owner and driver of one of the cars - defendant owned other vehicle which was being driving by his wife - defendant insured by NRMA - plaintiff insured by AAMI - defendant’s wife, later substituted by defendant, sued plaintiff in negligence - plaintiff cross-claimed that wife negligent and sought order for payment by defendant of value of damage to her vehicle and all associated loss - defendant brought second set of proceedings against plaintiff seeking damages for costs of repair, towing charges and hire car costs - proceedings brought in his name by NRMA pursuant to alleged right of subrogation - Local Court gave verdict for plaintiff in first proceedings - plaintiff sought to dismiss second set of proceedings on basis of res judicata - defendant sought that Local Court’s orders be set aside as being entered irregularly or against good faith - Court found that as two proceedings brought by two different entities, plaintiff’s notice of motion raising issues of res judicata and provisions s24 Civil Procedure Act 2005 (NSW) could not be granted - defendant’s notice of motion dismissed - parties appealed and cross-appealed - held: plaintiff refused leave to appeal against - leave to cross-appeal also refused - summonses dismissed.
Cruise Oz Pty Ltd v AAI Ltd [2015] QSC 215
Supreme Court of Queensland
Carmody J
Insurance contract - motor dealers insurance policy - applicant sought declaration that on proper construction, insurance agreement executed by parties extended to cover flood damage sustained by caravans displayed at trade show - whether open for applicant to claim insurance under agreement - proper construction of “your premises” in definition of “your vehicle” in Section 3 of agreement - held: applicant successfully established Section 3 responded to its insurance claim - Section 3 was subject to perils exclusion clause which would substantially preclude recovery in respect of several insured vehicles - the Two Section Exclusion Clause prescribed Section 3 would respond to claim - respondent must indemnify applicant in respect of damage or loss caused to the applicant’s insured vehicles on under Section 3 - declaration.
Letter from Town: The Almond Tree
By D. H. Lawrence, 1885 - 1930

You promised to send me some violets. Did you forget?
White ones and blue ones from under the orchard hedge?
Sweet dark purple, and white ones mixed for a pledge
Of our early love that hardly has opened yet.

Here there’s an almond tree—you have never seen
Such a one in the north—it flowers on the street, and I stand
Every day by the fence to look up for the flowers that expand
At rest in the blue, and wonder at what they mean.

Under the almond tree, the happy lands
Provence, Japan, and Italy repose,
And passing feet are chatter and clapping of those
Who play around us, country girls clapping their hands.

You, my love, the foremost, in a flowered gown,
All your unbearable tenderness, you with the laughter
Startled upon your eyes now so wide with hereafter,
You with loose hands of abandonment hanging down.