Ali v Insurance Australia Limited [2022] NSWCA 174

Court Supplied Summary

Insurance — property insurance — home and contents — where claim by policyholder made following break-in at home — where drafting in policy used the word ‘cover’ throughout — whether cause of action for damages arose at the time of property damage or upon determination of claim — whether claim against policy barred by Limitation Act 1969 (NSW), s 14 — whether ‘cover’ where used in policy interchangeable with ‘indemnify’

Tim Castle SC appeared for the Applicant.

Reasons for the decision can be found here.

Worth v HDI Global Specialty SE [2021] NSWCA 185

INSURANCE – where appellant’s house destroyed in a fire – where house used to operate a business – where house and business insured by respondent – where respondent granted conditional indemnity under deed of release – where respondent then denied liability on basis fire deliberately lit by insured – whether primary judge erred in finding appellant deliberately started fire
 
INSURANCE – measure of indemnity – where lack of reasonable despatch in rectifying property – whether indemnity for property damage payable on reinstatement basis
 
INSURANCE – damages – whether damages available for consequential loss arising from insurer’s breach of promise to indemnify – whether damages available for inconvenience and distress caused by breach

Tim Castle SC appeared for the Appellant.

Reasons for the decision can be found here.

Hub Street Equipment Pty Ltd v Energy City Qatar Holding Company [2021] FCAFC 110

ARBITRATION – international arbitration – enforcement of award – where supervisory court appointed the arbitral tribunal – whether composition of the arbitral tribunal was in accordance with the agreement of the parties – comity – whether enforcing court should accept that the appointment of the tribunal by the supervisory court was in accordance with the agreement of the parties

ARBITRATION – international arbitration – enforcement of award – nature of the burden of proving a ground for non-enforcement – whether discretion to enforce award should nevertheless be exercised – nature of the discretion

PRACTICE AND PROCEDURE – settlement – where parties settled “in principle” – where judgment was complete subject to administrative matters prior to settlement – whether Court can hand down judgment notwithstanding settlement “in principle” – Court has a discretion to hand down judgment where it is in the public interest to do so

Tim Castle SC appeared for the Respondent.

Reasons for the decision can be found here.

Walton v Commonwealth Bank of Australia [2020] NSWCA 191

CIVIL PROCEDURE — Discontinuance — Costs — No consent to discontinue without paying costs — Plaintiff sought leave to discontinue with no order as to costs — Proceedings lacking practical utility — Both defendants impecunious — Defendants’ cross-claim abandoned — No right by way of defence and set-off to recover any amount exceeding the debt owed to the plaintiff — Litigation had begun to “feed on itself” — Uniform Civil Procedure Rules 2005 (NSW), r 12.1.

COSTS — Discontinuance — Usual rule that discontinuing party pay defendant’s costs — Power to order otherwise — Plaintiff sought leave to discontinue with no order as to costs — Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 42.19(2).

Tim Castle SC represented the Respondent.

Reasons for the decision can be found here.

Energy City Qatar v Hub Street Equipment Pty Ltd [2020] FCA 1116

ARBITRATION – application to enforce a foreign award – where respondent contends that it did not receive proper notice – where respondent contends that arbitral procedure was not in accordance with the contract between the parties – where respondent contends that the arbitral award involved a breach of natural justice – application to enforce award granted.

Tim Castle SC represented the Applicant.

Reasons for the decision can be found here.

Gooley v NSW Rural Assistance Authority [2020] NSWCA 136

CONTRACTS – variation – whether term of credit facility varied – whether variation supported by adequate consideration – where difference in obligations capable of benefiting either party – contract effectively varied – whether bank repudiated contract in maintaining that term varied.

BANKING AND FINANCE – Australian Securities and Investments Commission Act 2001 (Cth), ss 12CB and 12DA – whether in varying term of credit facility bank engaged in misleading or deceptive or unconscionable conduct – whether in making loan bank engaged in unconscionable conduct – no question of principle.

BANKING AND FINANCE – Code of Banking Practice, cll 2.2, 25.1 and 25.2 – whether breach of obligation to exercise care and skill of a diligent and prudent banker – whether breach of obligation to try to help borrower to overcome financial difficulties with a credit facility – no question of principle.

BANKING AND FINANCE – National Credit Code – whether loan “unjust” credit contract within s 76(1) – whether bank failed to respond to hardship notices as required by s 72(4) – whether National Credit Code applied – where the predominant purpose for which credit was provided or was intended to be provided was not a Code purpose – no question of principle.

PRIMARY INDUSTRY – Farm Debt Mediation Act 1994 (NSW) – whether enforcement action taken in contravention of Act – no question of principle.

Tim Castle SC appeared for the Second and Third Respondent.

Reasons for the decision can be found here.

Gooley v NSW Rural Assistance Authority [2020] NSWCA 156

CONTRACTS – variation – whether term of credit facility varied – whether variation supported by adequate consideration – where difference in obligations capable of benefiting either party – contract effectively varied – whether bank repudiated contract in maintaining that term varied.

BANKING AND FINANCE – Australian Securities and Investments Commission Act 2001 (Cth), ss 12CB and 12DA – whether in varying term of credit facility bank engaged in misleading or deceptive or unconscionable conduct – whether in making loan bank engaged in unconscionable conduct – no question of principle.

BANKING AND FINANCE – Code of Banking Practice, cll 2.2, 25.1 and 25.2 – whether breach of obligation to exercise care and skill of a diligent and prudent banker – whether breach of obligation to try to help borrower to overcome financial difficulties with a credit facility – no question of principle.

BANKING AND FINANCE – National Credit Code – whether loan “unjust” credit contract within s 76(1) – whether bank failed to respond to hardship notices as required by s 72(4) – whether National Credit Code applied – where the predominant purpose for which credit was provided or was intended to be provided was not a Code purpose – no question of principle.

PRIMARY INDUSTRY – Farm Debt Mediation Act 1994 (NSW) – whether enforcement action taken in contravention of Act – no question of principle.

Tim Castle SC represented the Second and Third Respondents.

Reasons for the decision can be found here.

Energy City Qatar v Hub Street Equipment Pty Ltd [2020] FCA 1033

PRACTICE AND PROCEDURE – application by the applicant that the respondent provide security for the applicant’s costs – whether the position of the respondent is purely defensive – where there is no cross-claim nor any order sought by the respondent against the applicant – application dismissed.

Tim Castle represented the Applicant.

Reasons for the decision can be found here.

In the Matter of Applied Masters Chemists of Australia Ltd [2020] NSWSC 291

Security interests registered by reference to grantors’ Australian Business Number rather than Australian Company Number – inadvertence – evidence of solvency of grantors – secured creditors not affected by order sought – unsecured creditors affected – whether Guardian Securities condition appropriate – principles at [16]-[20] – grantors include publicly listed company – uncertainty inherent in such a condition unhelpful and unwarranted – condition not imposed.

Tim Castle represented the Plaintiff.

Reasons for the decision can be found here.

Zervas v Burkitt (No 2) [2019] NSWCA 236

APPEAL – Misleading or deceptive conduct – accessorial liability – representation as to future conduct – determination of liability where applicant held liable for causes of action not pleaded against him – whether failure to accept offer of insurance was a failure to mitigate loss – apportionment of liability – variation of costs orders – joint and several liability

Tim Castle and David Edney represented the Appellant.

Reasons for the decision can be found here.

Macarthur Projects Pty Ltd v Cottage Developers Pty Ltd [2019] NSWSC 1149

CIVIL PROCEDURE— Summary disposal — Dismissal of proceedings — Abuse of process – application for dismissal of proceedings or the striking out of the statement of claim or orders in respect of costs incurred in earlier proceedings – whether an abuse of process to bring fresh proceedings in circumstances where the first proceedings were dismissed for their failure to provide security for costs.

Tim Castle represented the Defendants.

Reasons for the decision can be found here.

Commonwealth Bank of Australia v Daleport Pty Ltd (in receivership) (No 6) [2019] NSWSC 958

CIVIL PROCEDURE – separate determination of questions – where appropriate – where parties labouring under different understandings as to the relief able to be claimed by the defendants in their defences – plaintiff contending no monetary remedy available beyond extent of its claim – evidence of defendants’ impecuniosity – whether proceedings futile – whether leave to discontinue should be granted on terms that there be no order as to costs.

Tim Castle represented the Plaintiff.

Reasons for the decision can be found here.

R & B Directional Drilling Pty Ltd (in liq) v CGU Insurance Limited (No 2) [2019] FCA 458

INSURANCE – commercial general liability insurance – construction subcontract – defective works – distinction between loss of use and physical injury – distinction between “injury” and “physical injury” – no physical injury to tangible property – application dismissed

INSURANCE – exclusions – property in physical or legal control – tunnel was in physical control of applicant

INSURANCE – exclusions – faulty workmanship – insurer will not pay anything in respect of performing, correcting or improving any work undertaken – consequential costs

INSURANCE – exclusions – contractual liability – within ordinary limits of liability

Tim Castle represented the Applicants.

Reasons for the decision can be found here.

Ozmen Entertainment Pty Ltd v Neptune Hospitality Pty Ltd [2019] FCA 721

ADMIRALTY – demise charter – construction – nature of demise charter – warranty that vessel would be classed and surveyed to carry 800 passengers – where vessel had not been classed or surveyed at time of entry into charterparty – whether survey for maximum of 450 passengers breach of warranty

CONTRACTS – notice to remedy breach –where notice conveys clear intention to terminate agreement if breaches of continuing obligations not remedied within specified time – where impossible to remedy past breaches – whether possible for party to remedy past breaches by acting “to put things right for the future”

CONTRACTS – termination under contract or at common law – where multiple breaches of obligations and duties under joint venture agreement – where one party required to provide fortnightly financial reports and information to other – duties of trust and good faith and of making decisions jointly – duty not to unilaterally incur debts – duty to comply with taxation obligations – conditions, warranties and innominate terms – whether unremedied breach of innominate terms sufficiently serious to justify termination – whether multiple breaches by party evinced intention not to be bound

EQUITY – joint venture – fiduciary duty – where party obliged to obtain survey and classification of vessel to carry 800 passengers informs other party that surveyor will only issue for lesser number and parties should do work later to bring vessel to standard for 800 passengers – where consequence is other party would lose guaranteed net profit entitlement under joint venture agreement – whether one party had fiduciary duty to inform other of potential loss of guarantee in advising course of action – whether conflict between interests of joint venturers – whether duty to inform of conflict of interests –whether party to joint venture agreement deemed to know its provisions

Tim Castle with Ms Ermelinda Kovacs represented the Applicant.

Reasons for the decision can be found here.

ROBERT ALLAN JACOBS as Receiver and Manager of PLUTON RESOURCES LTD (RECEIVER AND MANAGER APPOINTED) (In Liq) v HUGHES [2018] WASC 414

Corporations - Receivers and managers - Retention of moneys by former receivers and managers - Potential liability under s 433 Corporations Act 2001 (Cth) - Application made by current receiver and manager against former receivers and managers for transfer of retention fund - Proper construction of s 433 - Equitable lien.

Tim Castle and Chris Pearce represented the Plaintiff.

Reasons for the decision can be found here.

Arab Bank Australia Ltd v Sayde Developments Pty Ltd [2016] NSWCA 328

CONTRACTS — Construction — Penalties — Commercial loan facility — Whether default interest provision constituted penalty — Determination as at date contract made — Whether presumption that default interest a penalty — Whether default interest extravagant or unconscionable — Whether function of default interest only to punish — Whether pre- estimate of loss required.

Noel Hutley SC and Tim Castle for the Appellant.

Reasons for the judgement can be found here.