Latest Decisions of Interest

1 June – 31 June 2021

NSW Court of Appeal Decisions

Practice and procedure: joinder

AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112

The Court of Appeal has allowed an appeal against a decision of the Land and Environment Court ordering the joinder of an objector to raise a jurisdictional point in proceedings in which the applicant and the Minister together sought orders reflecting the terms of an agreement between them. The Court held that that joinder of the objector was not necessary within the meaning of UCPR r 6.24 as there were other means by which the Court could have received its submissions.

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Succession: substitute for specific devise

Wardy v NSW Trustee and Guardian [2021] NSWCA 121

The Court of Appeal has dismissed an appeal brought by a residuary beneficiary under a will against a declaration that the administrator was authorised to substitute a property from the residuary estate for a property the subject of a specific devise that had been sold. The Court held that it was sufficient that the properties were equivalent in current value, as no prejudice to the life interest-holder by reason of the lower income-earning potential of the substitute property had been complained of.

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Defamation: qualified privilege; justification

Schlaepfer v Australian Securities & Investments Commission [2021] NSWCA 129

The Court of Appeal has dismissed an appeal brought by the owner of companies publicly alleged by ASIC to have engaged in market manipulation against a finding that ASIC was not liable for defamation. The Court held that while the relevant defamatory imputations were indeed conveyed in various communications by ASIC, the common law defence of qualified privilege was made out, although the statutory defence failed on the element of reasonableness.

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Negligence: causation; Evidence; Browne v Dunn

Yebdoo v Holmewood [2021] NSWCA 119

The Court of Appeal has dismissed an appeal brought by an unsuccessful plaintiff against a finding that she had failed to establish causation in a claim in negligence for a traffic collision. The Court by majority held that in the absence of expert evidence specifically addressing the question of the speed necessary to propel the defendant over the plaintiff’s bonnet and the likely effect of braking no finding as to causation could be made.

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Insurance: total and permanent disability insurance

MetLife Insurance Limited v Sandstrom [2021] NSWCA 123

The Court of Appeal has dismissed an appeal brought by an insurer against a finding that it had breached its contractual duties to act fairly and reasonably and assess in good faith a claim for total and permanent disability benefits. The Court by majority held that the insurer applied inconsistent scrutiny to the claim, interpreting inconclusive statements not addressed to the policy definition favourably to itself and discounting material favourable to the applicant for reasons that applied equally to material relied upon by it without comment.

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Australian Intermediate Appellate Decision(s)

Defamation: search engines; innocent dissemination; qualified privilege

Defteros v Google LLC [2021] VSCA 167

The Victorian Court of Appeal has dismissed an appeal brought by Google against a finding that it was liable in defamation for hyperlinked material in its search results. The Court held that Google was a publisher of the hyperlinked defamatory material even if the search results themselves were not defamatory, that it could not rely on the defence of innocent dissemination regardless of its belief in the availability of any potential defences to the publication of defamatory material once the defamatory nature of that material was brought to its attention, and that statutory and common law defences of qualified privilege would not be established by reference to mere curiosity on the part of a recipient.

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Equity: trusts; Contract: interpretation

Queensland Nickel Pty Ltd (in liq) v QNI Metals Ltd [2021] QCA 138

The Queensland Court of Appeal has allowed an appeal brought by the liquidator of Queensland Nickel Pty Ltd against a finding that it could not recover money lent from an account in its name to Mineralogy Pty Ltd. The Court held that money in the account was held by Queensland Nickel on trust for the joint venture companies, but that loans to Mineralogy could not have been made (or forgiven) by those joint venture companies because the trust was subject to duties and so could not be collapsed by the joint venture companies directing payment to a third party.

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Asia Pacific Decision(s)

International Decision(s)

Tort: negligence; negligent advice

Manchester Building Society v Grant Thornton UK LLP [2021] UKSC 20

The UK Supreme Court has allowed an appeal brought by the recipient of negligent financial advice against a finding that the scope of the advisor’s duty did not extend to losses incurred when forced to close out interest rate swaps acquired in reliance on that advice. The Court held that the scope of an advisor’s duty is governed by the purpose of the duty, ascertained by reference to the reason for which the advice was given, and discussed the role and significance of the SAAMCO counterfactual in establishing whether a loss falls within the scope of an advisor’s duty of care.

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Tort: negligence; negligent medical advice

Khan v Meadows [2021] UKSC 21

The UK Supreme Court has dismissed an appeal brought by the mother of a child born with haemophili an autism against the doctor who negligently advised her that she was not a carrier of the haemophilia gene. The Court held that the scope of the doctor’s duty of care extended to the risk of a child being born with haemophilia, but did not extend to the risk of a child being born with an unrelated condition even though this was a foreseeable risk of the doctor’s negligence and satisfied the “but for” test of factual causation.

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