Friday, 4 October 2019 Weekly Insurance Law Review Selected from our Daily Bulletins covering Insurance Search Engine Click here to access our search engine facility to search legal issues, case names, courts and judges. Simply type in a keyword or phrase and all relevant cases that we have reported in Benchmark since its inception in June 2007 will be available with links to each case. Executive Summary (1 minute read) Calidad Pty Ltd v Seiko Epson Corporation (No 2) (FCAFC) - patent - Court dismissed appeal and allowed cross-appeal - determination of form of declaratory and injunctive relief Coles Supermarkets Australia Pty Ltd v Commissioner of Taxation (FCA) - taxation - five proceedings - Coles not entitled to 'fuel tax credits or decreasing fuel tax adjustments' in respect of evaporated or leaked fuel Chamberlain Group, Inc v Giant Alarm System Co, Ltd (No 2) (FCA) - patent - default judgment - applicants sought default judgment against first respondent in respect of claim of infringement of three patents - default judgment granted to first applicant DeBattista v Minister for Planning and Environment (NSWCA) - environment and planning - no error in refusal to require Council to withdraw 'planning proposal' in respect of Shoalhaven Local Environmental Plan 2014 - appeal dismissed In the matter of BBY Holdings Pty Ltd (receivers and managers appointed) (in liquidation) (NSWSC) - corporations - winding up - liquidators of companies sought directions - distribution of proceedings of claim - apportionment of costs of claim’s pursuit - directions granted Rodd v Hall (NSWSC) - negligence - plaintiff injured in fall on 'wet tiles' in hotel - defendants liable - judgment for plaintiff in sum of $470,690.92 Queensland Phosphate Pty Ltd v Korda [No 2] (VSCA) - corporations - insolvency - deed Page 1
Transcript
Friday, 4 October 2019
Weekly Insurance Law ReviewSelected from our Daily
Bulletins covering Insurance
Search Engine Click here to access our search engine facility to search legal issues, case names, courts andjudges. Simply type in a keyword or phrase and all relevant cases that we have reported inBenchmark since its inception in June 2007 will be available with links to each case.
Executive Summary (1 minute read)
Calidad Pty Ltd v Seiko Epson Corporation (No 2) (FCAFC) - patent - Court dismissedappeal and allowed cross-appeal - determination of form of declaratory and injunctive relief
Coles Supermarkets Australia Pty Ltd v Commissioner of Taxation (FCA) - taxation - fiveproceedings - Coles not entitled to 'fuel tax credits or decreasing fuel tax adjustments' in respectof evaporated or leaked fuel
Chamberlain Group, Inc v Giant Alarm System Co, Ltd (No 2) (FCA) - patent - defaultjudgment - applicants sought default judgment against first respondent in respect of claim ofinfringement of three patents - default judgment granted to first applicant
DeBattista v Minister for Planning and Environment (NSWCA) - environment and planning -no error in refusal to require Council to withdraw 'planning proposal' in respect of ShoalhavenLocal Environmental Plan 2014 - appeal dismissed
In the matter of BBY Holdings Pty Ltd (receivers and managers appointed) (inliquidation) (NSWSC) - corporations - winding up - liquidators of companies sought directions -distribution of proceedings of claim - apportionment of costs of claim’s pursuit - directionsgranted
Rodd v Hall (NSWSC) - negligence - plaintiff injured in fall on 'wet tiles' in hotel - defendantsliable - judgment for plaintiff in sum of $470,690.92
Queensland Phosphate Pty Ltd v Korda [No 2] (VSCA) - corporations - insolvency - deed
and general security deed void - second applicant insolvent - second applicant to be wound upon 'just and equitable ground' - appeal dismissed
Manassen Holdings Pty Ltd & Anor v Commercial & General Corporation Pty Ltd (SASC) -contract - 'underwriting agreement' - estoppel - plaintiffs entitled to 'additional commission' -judgment for plaintiffs
Child & Adolescent Health Service v Sunday John Mabior by next friend MaryKelei (WASCA) - negligence - medical negligence - appellant liable for injuries suffered byrespondent while patient at hospital - appeal dismissed
Kempster v Healthscope Operations Pty Ltd (ACTSC) - medical negligence - vicariousliability - claim in respect of ’heparin injection’ - defendant liable - judgment for plaintiff in sumof $259,706.66
Summaries With Link (Five Minute Read)
Calidad Pty Ltd v Seiko Epson Corporation (No 2) [2019] FCAFC 168Full Court of the Federal Court of AustraliaGreenwood, Jagot & Yates JJAPatent - Court dismissed appeal and allowed cross-appeal - parties could not agree on’additional orders’ - proceedings concerned determination of form of relief, declaratory andinjunctive - s125 Patents Act 1990 (Cth) - s21 Federal Court of Australia Act 1976 (Cth) - held:Court satisfied to make declaration and to grant injunctions ’in general form’ sought byrespondent/respondent cross-appellant.Calidad[From Benchmark Tuesday, 1 October 2019]
Coles Supermarkets Australia Pty Ltd v Commissioner of Taxation [2019] FCA 1582Federal Court of AustraliaMoshinsky JTaxation - five proceedings - Coles contended that it lost, 'through evaporation or leakage', aportion of fuel it acquired during certain tax periods - Coles claimed 'fuel tax credits ordecreasing fuel tax adjustments' (credits or adjustments) concerning the lost fuel -Commissioner contended Coles not entitled to credits or adjustments - Commissioner alsocontended that 'any entitlement to fuel tax credits' in respect of certain periods had ceasedunder s47-5 Fuel Tax Act 2006 (Cth) (Fuel Tax Act) - “for use in carrying on [the relevant]enterprise” - held: Coles not entitled to credits and/or adjustments under ss41-5 and/or 44-5Fuel Tax Act.Coles[From Benchmark Monday, 30 September 2019]
Chamberlain Group, Inc v Giant Alarm System Co, Ltd (No 2) [2019] FCA 1606Federal Court of AustraliaYates JPatent - default judgment - first applicant and second applicant claimed against respondents forinfringement of three patents - applicants sought default judgement against first respondentunder r5.23(2)(c) Federal Court Rules 2011 (Cth) (Rules) - whether applicant or applicantsentitled to claimed relief - service - whether compliance with rr10.70(2)(a) & 10.70(2)(b) Rules -whether first respondent in default under r5.22 Rules - held: first applicant granted defaultjudgment.Chamberlain[From Benchmark Tuesday, 1 October 2019]
DeBattista v Minister for Planning and Environment [2019] NSWCA 237Court of Appeal of New South WalesWhite & McCallum JJA; Emmett AJAEnvironment and planning - appellant owned land - appellant prepared development proposalsin respect of land on basis of applicable 'height restrictions' under Shoalhaven LocalEnvironmental Plan 2014 (SLEP2014) - Council sought to reduce height restrictions - 'planningproposal' prepared for SLEP2014's amendment (PP023) - appellant claimed against firstrespondent and Council, seeking that Court require Council's withdrawal of PPO23 - primaryjudge declined to intervene - whether Council's process in 'in formulating and then enactingdelegated legislation' was justiciable - whether necessary for Court to consider whether therewas 'reasonable apprehension of bias' by Council - Environmental Planning and AssessmentAct 1979 (NSW) - held: no error in primary judge's refusal to order Council to withdraw PPO23 -appeal dismissed.View Decision[From Benchmark Thursday, 3 October 2019]
In the matter of BBY Holdings Pty Ltd (receivers and managers appointed) (inliquidation) [2019] NSWSC 1272Supreme Court of New South WalesRees JCorporations - liquidators of companies (BBY Limited, BBY Holdings and Broker ServicesAustralia), pursuant to s90-15 Insolvency Practice Schedule (Corporations), sought directionsconcerning distribution of proceeds of claim they brought against companies’ directors forinsolvent trading - liquidators also sought directions concerning apportionment between thecompanies of costs and expenses of claim’s pursuit - s588M Corporations Act 2001 (Cth) - held:directions granted.View Decision[From Benchmark Tuesday, 1 October 2019]
Rodd v Hall [2019] NSWSC 1304Supreme Court of New South WalesHoeben CJ at CLNegligence - plaintiff fell on 'wet tiles' at hotel - plaintiff sued defendants in negligence forinjuries suffered - whether duty of care - whether breach of duty - whether causation - whethercontributory negligence - Civil Liability Act 2002 (NSW) - held: defendants liable - judgment forplaintiff in sum of $470,690.92.View Decision[From Benchmark Thursday, 3 October 2019]
Queensland Phosphate Pty Ltd v Korda [No 2] [2019] VSCA 215Court of Appeal of VictoriaKyrou, McLeish & Niall JJACorporations - insolvency - second respondent, second applicant & first applicant entered 'deedand a general security deed ('deeds’)' - associate justice found deeds void, that secondapplicant insolvent and that second applicant should be wound up - applicants contendedassociate judge erroneously concluded second respondent and second applicant were insolventwhen they entered deeds, erroneously concluded deeds constituted 'void transaction' anderroneously concluded second applicant should be wound up on 'just and equitable ground' -applicants also sought to add proposed ground that discretion of associate judge had miscarriedconcerning relief grant to respondents as result of finding of voidable transaction - held: leave toappeal on proposed ground of appeal refused - appeal dismissed.Queensland[From Benchmark Thursday, 3 October 2019]
Manassen Holdings Pty Ltd & Anor v Commercial & General Corporation Pty Ltd [2019]SASC 171Supreme Court of South AustraliaDoyle JContract - 'underwriting agreement' - dispute concerned commission paid by defendant toplaintiffs under underwriting agreement - plaintiffs contended they were entitled to 'additionalcommission' - plaintiffs claimed in contract under underwriting agreement and 'extensionagreement' - plaintiffs alternatively claimed in reliance on conventional estoppel or a promissoryestoppel - held: plaintiffs entitled to additional commission under underwriting agreement -claims under extension agreement and in reliance on estoppel failed.Manassen[From Benchmark Thursday, 3 October 2019]
Child & Adolescent Health Service v Sunday John Mabior by next friend MaryKelei [2019] WASCA 151Court of Appeal of Western AustraliaQuinlan CJ; Murphy & Pritchard JJA
Negligence - medical negligence - respondent sued appellant in respect of injuries sufferedwhile patient at hospital - primary judge found respondent's injuries were caused by doctors'negligence - appellant appealed - whether erroneous 'critical finding of fact' by primary judge -whether erroneous finding of breach of duty of care - whether misconstruction of s5PB(1) CivilLiability Act 2002 (WA) - held: appeal dismissed.Child & Adolescent Health Service[From Benchmark Wednesday, 2 October 2019]
Kempster v Healthscope Operations Pty Ltd [2019] ACTSC 248Supreme Court of the Australian Capital TerritoryCrowe AJMedical negligence - vicarious liability - plaintiff claimed against defendant in respect of injuriesallegedly suffered due to ’negligently administered heparin injection’ - injection administered toplaintiff by defendant’s employee - plaintiff contended defendant was vicariously liable foremployee’s conduct - whether breach of duty - whether causation established - factualcausation - s45 Civil Law (Wrongs) Act 2002 (ACT) - held: Court satisfied plaintiff’s injuries dueto employee’s negligence - defendant responsible for negligence - defendant liable - judgmentfor plaintiff in sum of $259,706.66.Kempster[From Benchmark Tuesday, 1 October 2019]
The Ruin By: Walter de la Mare When the last colours of the day Have from their burning ebbed away, About that ruin, cold and lone, The cricket shrills from stone to stone; And scattering o'er its darkened green, Bands of the fairies may be seen, Chattering like grasshoppers, their feet Dancing a thistledown dance round it: While the great gold of the mild moon Tinges their tiny acorn shoon. https://en.wikipedia.org/wiki/Walter_de_la_Mare
