Latest decisions of interest

5 August 2019 – 30 August 2019

NSW Court of Appeal

Bank of Queensland Limited v AIG Australia Limited [2019] NSWCA 190
Insurance: aggregation of claims; retention
The Court of Appeal has allowed an appeal brought by a bank, holding that multiple claims brought against the bank in representative proceedings should be aggregated for insurance purposes.

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Mekhail v Hana; Mekail v Hana [2019] NSWCA 197
Probate: testamentary capacity; suspicious circumstances
The Court of Appeal has allowed an appeal in a probate matter, holding that the primary judge erred in the manner in which he assessed whether the respondent had discharged the onus that was on her to demonstrate that the deceased had known the contents of the will in question and appreciated its effect.

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Strike Australia Pty Ltd v Data Base Corporate Pty Ltd [2019] NSWCA 205
Contracts: valuation; interpretation; meaning of ‘have regard to’
By majority, the Court of Appeal has dismissed an appeal from a decision of a judge of the Equity division, finding that the judge did not err in holding that a valuer had gone beyond their contractual role.

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State of New South Wales v Wraydeh [2019] NSWCA 192
Defamation: amended pleadings; adopting contextual imputations
The Court of Appeal has dismissed an appeal brought by the State of New South Wales, holding that the primary judge had not erred in granting Mr Wraydeh leave to amend his pleadings to adopt imputations which the State had pleaded as contextual imputations in its defence.

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Bakewell v Anchorage Capital Master Offshore Ltd [2019] NSWCA 199
Civil procedure: leave to join further defendants; summary dismissal
The Court of Appeal has refused a Chief Financial Officer of a group of companies leave to appeal from a decision of a judge in the Commercial List which joined the CFO as a defendant, holding that the law concerning assignment of choses in action is not so settled that the plaintiffs’ claims against the CFO could be dealt with summarily.

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Other Australian intermediate appellate decisions

Tokio Marine & Nichido Fire Insurance Co Ltd v Hans Bo Kristian Holgersson t/as Holgerssons Complete Home Service [2019] WASCA 114
Contracts: insurance; construction; surplusage
The Western Australian Court of Appeal has dismissed an appeal brought by an insurer, holding that the building insurance policy in question should be read so as to cover a subcontractor who was not a party to the policy, and rejecting the insurer’s argument that certain words in the policy should be given no effect.

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Lasker v Holeszko [2019] QCA 163
Statutory interpretation: meaning of ‘conviction’; summary process
The Queensland Court of Appeal has refused Mr Lasker’s application for leave to appeal, holding that charges against him in the Magistrates Court had not been finally determined, so his appeal rights had not yet arisen.

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Burton v Commissioner of Taxation [2019] FCAFC 141
Taxation: capital gains; double taxation; foreign income tax offset
By majority, the Full Court of the Federal Court has dismissed an appeal brought by a taxpayer who challenged the Commissioner’s assessment of the foreign tax credit (or foreign income tax offset) to which he was entitled.

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