benchmark_20-05-2008_insu... - AR Conolly and Company Lawyers

BENCHMARK 

Insurance, Banking & Construction 

A Daily Bulletin listing Decisions of 

Superior Courts of Australia 

Tuesday 20 May 2008 

Marina Pitsonis v Registrar of the Workers Compensation Commission & 

Anor [2008] NSWCA 88 

Court of Appeal of New South Wales 

Mason P, McColl & Bell JJA 

Workplace Injury Management & Workers Compensation Act 1998 (NSW) - 

approved medical specialist assessed impairment at less than 15% - 

percentage impairment contested - whether arguable grounds of appeal from 

assessment of approved medical specialist in Medical Assessment Certificate 

ñ whether error in conclusion of Registrarís Delegate that there were no 

arguable grounds of appeal ñ ëdemonstrable errorí ñ the complaint by 

applicant was, in effect, cavilling at matters of clinical judgment - leave to 

appeal granted - appeal dismissed with costs. Marina Pitsonis (I) 

Stanoevski v the Council of the Law Society of New South Wales [2008] 

NSWCA 93 


Hodgson and Campbell JJA & Handley AJA 

Evidence ñ matters relating to proof ñ onus of proof ñ proof of negative 

proposition ñ not a fit and proper person to remain on roll ñ shifting of 

evidential onus in respect of negative proposition ñ distinction between 

burden of proof in the sense of establishing a case & burden of proof in the 

sense of introducing evidence. Stanoevski (I) 

Yuejin Guo v Bank of China Limited [2008] NSWCA 89 


Mason P, Giles & McColl JJA 

Property ñ Torrens Title ñ proceedings for possession or recovery of land ñ 

execution of mortgage by Deputy Registrar ñ whether Deputy Registrar 

Key: (I) Insurance, (B) Banking, 

(C) Construction 

Benchmark is prepared daily by 

A R Conolly & Company Lawyers, Sydney 

e: benchmark@arconolly.com.au 

t: 02 9333 3600



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authorised to execute mortgage ñ where court order empowered execution by 

ìthe Registrarî ñ whether a Deputy Registrar is or is not a Registrar ñ held 

that primary judge had been correct in entering summary judgment in favour 

of Bank. Yuejin (B) 

Bilson v Rogers [2008] NSWSC 469 

Supreme Court of New South Wales 

Jagot AJ 

Resulting trust - purchase of property - unequal contribution of plaintiff & 

first defendant to purchase price - whether plaintiff & first defendant had 

common intention that beneficial interest would vest wholly in plaintiff ñ 

detailed consideration of principles in Calverley & Green - declaration that 

first defendant held the whole of his interest in property on resulting trust for 

plaintiff. Bilson (B) 

Brebrich as Trustee for S & A Superannuation Fund v Maxpower Mortgage 

Services Pty Limited; Brebrich as Trustee for S & A Superannuation Fund v 

Maxpower Mortgage Services Pty Limited [2008] NSWSC 454 


Jagot AJ 

Trust - plaintiffs invested in a unit trust ñ unit trust certificate ñ trustee 

suffered losses - plaintiffs sought redemption of their units in unit trust & 

payment of their entitlements ñ not a risk free investment - plaintiffs' evidence 

did not substantiate declarations & orders sought. Brebrich (B) 

NM Rural Enterprises Pty Ltd v Rimanui Farms Limited [2008] NSWSC 472 


Harrison J 

Discovery ñ interrogatories ñ further discovery - plaintiff claiming damages 

for breach of duty of care & nuisance - plaintiff alleged it had suffered loss & 

damage due to herbicide spray drift that adversely affected its cotton and 

sorghum crops -whether affidavit verifying list of documents conclusive ñ 

whether relevant to a fact in issue ñ defendant's motion dismissed ñ case law 

considered. NM Rural Enterprises (I) 




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Amirbeaggi & 2 Ors v Business in Focus (Australia) Pty Ltd & 5 Ors [2008] 

NSWSC 421 


Brereton J 

Legal practitioners ñ costs agreements ñ whether agreement providing for 

how costs to be paid was a ìcosts agreementî ñ if so, whether void as barring 

right to costs assessment ñ whether right to costs assessment can be excluded 

ñ summary judgment ñ evidentiary requirements ñheld that formal 

requirements for summary judgment not satisfied - deed was a ìcosts 

agreementî & was void, as it contained provision barring costs assessment - 

proceedings to recover debt under deed were proceedings to recover costs & 

an abuse of process. Amirbeaggi (I) 

Morrison v Thomas Borthwick & Sons (Australia) Pty Ltd [2008] QSC 093 

Supreme Court of Queensland 

McMeekin J 

Damages ñ personal injury - measure & remoteness of damages ñ plaintiff, 

seeking damages for negligence, breach of contract & breach of statutory duty 

against employer - slip on a mat at work - liability admitted - three aspects of 

damages in issue ñ pain, suffering & loss of amenities, future economic loss & 

future recurring expenses - plaintiffís injury an aggravation of degenerative 

condition ñ vulnerability - damages for loss of future earning capacity 

assessed on basis that plaintiff unemployable in former capacity but had 

gained & retained better paying employment with defendant - plaintiff would 

not have reached retirement age in former employment regardless of accident 

- judgment for plaintiff for $84,587.09. Morrison (I) 

Landmark Operations Ltd v J Tiver Nominees Pty Ltd & Ors [2008] SASC 

133 

Supreme Court of South Australia 

Sulan J 

Experts report ñ application to amend pleadings - plaintiff a specialist 

financier to agricultural industry - second to sixth defendants carried on 

farming business - first to fifth defendants registered proprietors of land on 

which the farming business conducted - first defendant a trustee company for 

family trust - plaintiff & second to sixth defendants entered agreement by 

which plaintiff provided certain loans & credit facilities - second to sixth 

defendants have failed to repay the amounts owing in accordance with terms 

of agreement ñ plaintiff suing for damages - defendants have filed a 

counterclaim seeking damages for various breaches of duties - defendants 

have applied for leave further to amend their defence & counterclaim, & to 




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rely on a loss assessorís report in support of such amendment - applications to 

amend pleadings & to rely on report dismissed. Landmark Operations (B) 

A Goninan & Co Ltd -v- Direct Engineering Services Pty Ltd [No 2] [2008] 

WASCA 112 

Court of Appeal of Western Australia 

Martin CJ, McLure & Buss JJA 

Insurance policy - building contract between Hamersley Iron Pty Ltd & 

respondent - upgrade of air-conditioning & mechanical ventilation system at 

rolling stock maintenance offices near Dampier - offices at site damaged by a 

fire caused by employees of appellant in course of carrying out work under 

the subcontract ñ respondent head contractor obliged to effect & maintain 

various insurances throughout term of contract - respondent insured under a 

policy of liability insurance (the AXA insurance policy) - whether head 

contractor's obligation extended to provision of insurance cover for its 

subcontractors - clause imposing obligation on head contractor ambiguous - 

subcontractors to be insureds under policy only if persons, organisations or 

entities to whom head contractor was in writing obliged to provide insurance 

ñ primary judge had held appellant not an insured under policy, & AXA was 

entitled to prosecute the proceedings ñ primary judge had held respondent 

was obliged under the head contract to obtain insurance for the benefit of 

itself & Hamersley, but not for its subcontractors - appeal allowed. 

A Goninan & Co (I, C) 

Gaspower Australia Pty Ltd -v- Kalaui Pty Ltd [2008] WASC 88 

Supreme Court of Western Australia 

Beech J 

Trade Practices Act (Cth) - whether conduct unconscionable within s51AC - 

succinct summary of case law ñ defendant had leased premises to plaintiff - 

defendant purported to terminate lease alleging plaintiff had parted with 

possession of premises - plaintiff pleaded defendant's purported termination 

of lease was unreasonable & capricious & constituted unconscionable conduct 

within s51AC ñ defendantís application to strike out statement of claim 

dismissed. Gaspower Australia (I) 




t: 02 9333 3600

From CanadaÖ 



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Alberta Ltd v. Phoenix Marble Ltd - 2008 ABCA 177 

Court of Appeal of Alberta 

Hunt, Berger & OíBrien JJ 

Fire ñ damage to property owned by landlord ñ subrogation - commercial 

lease ñ- fire caused by negligence of tenant in handling & storage of 

flammable chemicals ñ insurer paid out landlordís claim ñprimary judge had 

reasoned the fact that tenant would pay its proportionate share of property 

insurance premiums implied that landlord (and ultimately landlordís insurer) 

assumed risk of loss - whether insurer had right of subrogation to recover 

insured losses ñ answer ënoí ñ appeal dismissed. Alberta (I) 

From Hong KongÖ 

Koon Wing Yee v. Insider Dealing Tribunal & Anor- [2008] HKCFA 21; 

Court of Final Appeal of Hong Kong ñ 18.03.2008 

Li CJ, Bokhary, Chan and Ribeiro PJJ & Sir Anthony Mason NPJ 

Insider trading - classification of insider dealing proceedings ñ whether civil 

or criminal ñ held that proceedings were criminal proceedings having regard 

to power to impose a penalty under Securities (Insider Dealing) Ordinance, - 

SIDO now repealed & replaced by the Securities & Futures Ordinance, but 

detailed consideration of case law from European Court of Human Rights, the 

UK & Hong Kong ñ at par. 50 of judgment: 

ìThe very serious and dishonest nature of the misconduct & the severity of 

the penalty are considerations which argue powerfully in favour of classifying 

both the proceedings and the misconduct as criminal. On the other hand, the 

proceedings have some characteristics which have been regarded as 

indications of the civil character of proceedings. These characteristics are the 

absence of a formal charge, the absence of a conviction constituting a criminal 

record & no provision for imprisonment.î Koon Wing Yee (I, B, C) 




t: 02 9333 3600

From SingaporeÖ 



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Dongwoo Mann+Hummel Co Ltd v Mann+Hummel GmbH [2008] SGHC 67 

High Court of Singapore ñ 8.05.2008 

Chan Seng Onn J 

International Commercial Arbitration ñ ëModel Lawí ñ discovery of 

documents - plaintiff company incorporated in Korea, manufacturing and 

selling automotive filtration systems to Korean automotive industry ñ 

defendant company incorporated in Germany & in the business of automotive 

filtration ñ plaintiff seeking to set aside final arbitration award ñ arbitration 

conducted pursuant to Singapore International Arbitration Centre Rules (2nd 

Ed, 22 October 1997) - plaintiff alleging it was not accorded a full & proper 

opportunity to present its case &/or was otherwise unable to present its case ; 

breach of rules of natural justice; award in conflict with public policy ñ 

standard of proof for allegation of fraud - plaintiffís action dismissed ñ at 

par.152 of judgment: 

ìIn conclusion, it is perhaps worth emphasizing what Bingham J said [ in 

Zermalt Holdings SA v Nu-Life Upholstery Repairs Ltd [1985] 2 EGLR 14 (at 

14) ] that as a general approach: 

Ö the courts strive to uphold arbitration awards. They do not approach them 

with a meticulous legal eye endeavouring to pick holes, inconsistencies & 

faults in awards & with the objective of upsetting or frustrating the process of 

arbitration. Far from it. The approach is to read an arbitration award in a 

reasonable and commercial way, expecting, as is usually the case, that there 

will be no substantial fault that can be found with itÖî Dongwoo 

Mann+Hummel Co (B, C) 

And apropos of personal liability of company 

directorsÖ 

Speech by Mr. Tony D'Aloisio, Chairman of the Australian Securities & 

Investments Commission to the Australian Institute of Company Directors - 

26.11.07. Tony DíAloisio speech (B) 




t: 02 9333 3600

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