Posts by robertsheldon

Availability of cross claims in apportionable claims

Landpower Australia Pty Ltd v Penske Power Systems Pty Ltd [2019] NSWCA 161 Bell P: Further consideration 39. In Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; [2013] HCA 10 at [16], French CJ, Hayne and Kiefel JJ said: “The evident purpose of Pt 4 [of the CLA] is…

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Appellate review of an award of non-economic loss

White v Redding [2019] NSWCA 152 Non-economic loss Relevant statutes and legal principles At common law, general damages for pain and suffering resulting from personal injury were “almost entirely [a] matter of impression and of common sense, and [were] only subject to review in very special cases” (Miller v Jennings [1954] HCA 65; (1954) 92…

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Leave to appeal

[28] In PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48, this Court made reference to the proper approach of an intermediate appellate court to applications for leave to appeal from interlocutory decisions involving the exercise of discretion on questions of practice and procedure. The Court observed (at [5]) that discretionary decisions “engage the strictures against over-ready appellate…

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Summary dismissal and multiple defendants

[6] The primary judge would have been justified in simply refusing to deal with the late application. Although it does not appear that the primary judge was referred to the relevant authorities, it is clearly established by decisions of this Court that if several defendants are sued and the evidence that might be adduced in…

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Appeal – error?

Elskaf v GIO General Limited [2019] NSWCA 23 Appeal from a decision of the District Court. The primary Judge (Wass SC DCJ) dismissed the appellant’s claim against the respondent (GIO) under a Motor Vehicle Insurance Policy (Policy) for the agreed value of a Ferrari 360 Modena vehicle (Vehicle). [1] The appellant’s case was that the Vehicle was…

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TPD: delay and duty of good faith

Sargeant v FSS Trustee Corporation [2018] NSWSC 1997 Delay in deciding claims 100 As already noted, the question is whether MetLife’s failure to make a decision on Ms Sargeant’s claim by 3 September 2015 or, alternatively, by 3 September 2016, was a breach of MetLife’s obligations to act reasonably and fairly in dealing with the…

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Obvious and insignificant risk resulting from unevenness in surface

In 2015 the appellant, then aged 70, tripped outside the entrance to an aged care facility operated by the respondent. The surface of that area consisted of large, flat concrete slabs bordered by rows of red bricks. There were height differences of 10–20 mm between the edges of the concrete and brick pavers, which had…

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