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BENCHMARK Insurance_ Banking _ Construction A Daily Bulletin


    Insurance, Banking & Construction
    A Daily Bulletin listing Decisions of
       Superior Courts of Australia

Friday 18 January 2008
Blue Wedges Inc v Minister for the Environment, Heritage & the Arts [2008]
Federal Court of Australia
Heerey J (at Melbourne)
Environmental law – public interest litigation – costs - project for deepening
shipping channels in Port Phillip Bay – referral under Environment Protection
& Biodiversity Conservation Act 1999 (Cth) – changes in project between
referral and approval - statutory construction – extensive analysis of
legislation - subordinate legislation as aid to construction – "action" - Blue
Wedges represented the interests of over sixty-five community &
environment groups - it had been actively campaigning to raise public
awareness of threats to environment of Port Phillip Bay over many years - it
had standing to bring proceeding under the Act – principle in Oshlack v
Richmond City Council [1998] HCA 11 applied as to costs - application
dismissed – no costs order - at par 73 of judgment:
“The condition of Port Phillip Bay is a matter of high public concern, & not
only for the four million or so Victorians who live around it. As might be
expected, the Project has attracted much controversy. On Saturdays the
‘Melbourne Age’ publishes a list of which it considers to be the "Five Big
Issues" of the week. Last Saturday, 12 January, Port Phillip Bay channel
deepening was third, topped only by Andrew Symonds in the Sydney Test &
Hillary Clinton in New Hampshire.” Blue Wedges Inc (I,B,C)

Rockett v Moneycorp Securities P/L & Anor [2007] QSC 389
Supreme Court of Queensland
Wilson J
Contracts – valuations - principal & agent – duties and liabilities of agent to
principal – duties and liabilities arising out of fiduciary character of

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relationship – plaintiff was second defendant’s letting agent in relation to
units – ‘the Sands’ on the Esplanade at Surfers Paradise - plaintiff held keys
for units – plaintiff used keys to allow first defendant’s agent to inspect units
– in course of inspection, plaintiff discovered units were for sale & made
offers to purchase them – whether purchase was in breach of plaintiff’s
fiduciary duty to second defendant - first defendant held second registered
mortgage over two units owned by second defendant – second defendant
defaulted on loan, & first defendant sold units to plaintiff in exercise of its
power of sale – there was a potential purchaser who would have been willing
to pay a premium for units – conflicting valuation evidence – method of
calculation of market value – succinct summary of principles as to scope of
fiduciary duty with useful footnote citation of texts & case law. Rockett (I,B,C)

Asteron Life Ltd v Clark [2007] WASCA 282
Court of Appeal of Western Australia
Wheeler, Pullin JJA & Le Miere AJA
Insurance policy – construction - appeal concerning respondent's entitlement
to a monthly total disability benefit pursuant to a group salary continuance
policy of insurance effected between appellant & policy owners, One Stop
Financial Shop Pty Ltd (One Stop) & Conlan Holdings Pty Ltd, trading as
Granger Clark - respondent employee of One Stop & possibly Granger Clark -
"earnings" - "paid to the insured person" – appeal dismissed. Asteron Life (I)

Deancrest Nominees Pty Ltd v Nixon [2007] WASC 304
Supreme Court of Western Australia
Newnes J
Application to set aside statutory demand - defendant guaranteed plaintiff's
debt to bank - an amount paid by defendant to bank in reduction of plaintiff's
debt - demand by defendant to recover that amount from plaintiff - whether
demand for 'debt' within meaning of s 459E(1) Corporations Act 2001 (Cth) -
plaintiff advanced money to trustee of trust - trustee advanced money to
defendant - whether plaintiff subrogated to trustee's right of indemnity from
trust assets - whether capable of constituting offsetting claim to defendant's
demand - case law considered as to trustee’s liability for debts contracted in
his or her capacity as trustee. Deancrest Nominees (B)

                                                        Benchmark is prepared daily by
                                              A R Conolly & Company Lawyers, Sydney
                                                                       t: 02 9333 3600

Two decisions from New South Wales in early 2007…

The Owners - Strata Plan No.50530 v Walter Construction Group Limited
(In Liquidation) & Ors [2007] NSWCA 124
Court of Appeal of New South Wales
Giles, Hodgson & Tobias JJA
Insurance - construction & effect of s6 Law Reform (Miscellaneous Provisions)
Act 1946 (NSW) - circumstances in which a plaintiff can proceed directly
against insurer of party alleged to be liable to pay damages to plaintiff -
claims-made policy - whether s6 procedure available when event giving rise
to the liability to plaintiff occurs before entry into contract of insurance. The
Owners - Strata Plan No.50530 (I,C)

Pateman v Peninsula Village Limited trading as Peninsula Village
Retirement Centre and Ors [2007] NSWSC 586
Supreme Court of New South Wales
Johnson J
Workers compensation - claim for relief in nature of certiorari under s69
Supreme Court Act 1970 - medical assessment certificate issued under s325
Workplace Injury Management and Workers Compensation Act 1998 - appeal
by worker under s328 to Appeal Panel against medical assessment certificate -
claim that Appeal Panel fell into error of law on face of record or jurisdictional
error - claim that decision of Appeal Panel not to refer worker for further
medical assessment or to examine her itself was manifestly unreasonable -
claim that Appeals Panel had failed to give reasons as required by law - claim
that Appeal Panel had failed to conduct review do novo - no error established
- proceedings dismissed. Pateman (I)

A decision from Victoria in early in 2007…

Australian Securities & Investments Commission v Edge [2007] VSC 170
Supreme Court of Victoria
Dodds-Streeton J
Corporations Act 2001 (Cth) - winding up – duties of liquidator – court
inquiry into defendant’s conduct as liquidator – improper delegation of duties
– failure to maintain proper books, including books of account – failure to
prepare & lodge prescribed documents, including six monthly & final
accounts, minutes of meeting & s533(1)(c) reports – failure to advertise,
convene & hold meetings, including final meetings – unauthorised

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                                               A R Conolly & Company Lawyers, Sydney
                                                                        t: 02 9333 3600

destruction of companies’ books & records – undue prolongation of
liquidations – drawing remuneration without approval or adequate
supporting documentation – exaggerated claims of work done – failure to
open separate bank accounts – intermingling of funds – writing of cash
cheques & cheques direct to liquidator’s business or creditors – failure
faithfully to perform duties as liquidator – removal – funds drawn without
approval disgorged – unfitness to remain liquidator – voluntary
administration – delegation of sending notices to director - failure to prepare
adequate s439A reports – failure to execute deeds of company arrangement –
failure to disclose prior association with director – whether administrator’s
management, acts or omissions prejudicial to interests of creditors or
members. Australian Securities & Investments Commission (I,B)

& One from the USA…

Credit Suisse Securities (USA) LLC v Billing
Supreme Court of United States
Breyer J delivered the opinion of the Court – Roberts CJ, Scalia, Souter,
Ginsburg, Alito JJ joined, Stevens J concurred, Thomas J dissenting &
Kennedy J took no part
Underwriting practices – syndicates - respondent investors alleged petitioner
investment banks, acting as underwriters, violated antitrust laws when they
formed syndicates to help execute initial public offerings (IPOs) for several
hundred technology-related companies - respondents claimed that the
underwriters unlawfully agreed that they would not sell newly issued
securities to a buyer unless the buyer committed (1) to buy additional shares
of that security later at escalating prices (known as “laddering”), (2) to pay
unusually high commissions on subsequent security purchases from the
underwriters, or (3) to purchase from the underwriters other less desirable
securities (known as “tying”) - whether “‘plain repugnancy’” between these
antitrust claims & federal securities law – answer ‘yes’ - securities laws
implicitly precluded application of antitrust laws to conduct alleged in this
case. Credit Suisse Securities (I,B)

Key: (I) Insurance; (B) Banking; (C) Construction

                                                       Benchmark is prepared daily by
                                             A R Conolly & Company Lawyers, Sydney
                                                                      t: 02 9333 3600

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