A Daily Bulletin listing Decisions of Superior

Courts of Australia Compiled for those in Insurance

Evidence Act � Whether evidence relevant against one defendant admissible for all purposes

against all defendants even if irrelevant against some defendants � See ASIC v MacDonald Deed of guarantee � Mortgage � �All monies� clause � See Dowdle v Pay Now for Business From the District Court of New South Wales Application to extend limitation period � detailed consideration of case law � See Mills v Perpetual Trustee And from the USA Business judgement rule � Whether Court will not interfere in corporate decision making � See Hill v State Farm Mutual Automobile Insurance Company Personal injury � Slip and fall - See Reid v Kohl�s Department Stores

Click here to visit our website

Thursday 25 September 2008

Today�s Cases

Thursday 25 September 2008 Australian Securities & Investments Commission v MacDonald [2008] NSWSC 995 Supreme Court of New South Wales Gzell J ss135 & 136 Evidence Act 1995 (NSW) � twelve defendants, including James Hardie Industries NV (12th defendant) - whether evidence relevant against one defendant admissible for all purposes against all defendants even if irrelevant against some defendants - what use can be made of such evidence - case law considered including Silbermann v CGU Insurance Ltd [2003] NSWSC 1127 where the Court had rejected insurer�s application that proceedings by ASIC be heard concurrently with proceedings by directors against insurer : see link below - discretions not exercised. Australian Securities & Investments Commission, and Mark Silbermann v CGU Insurance Limited; John Huyshe Greaves v CGU Insurance Limited; John David Rich v Cgu Insurance Limited; One.Tel Limited (In Liq) v Rich and Ors [2003] NSWSC 1127 (3 December 2003) � decision 3 December 2003.

Dowdle v Pay Now For Business Pty Ltd [2008] QSC 224 Supreme Court of Queensland Daubney J Deed of guarantee � mortgage � application for summary judgment - plaintiff & her husband separated for some years � plaintiff provided mortgage over property to guarantee loan to husband � husband significantly indebted to defendant � defendant refused to release mortgage over property, asserting that plaintiff was, by virtue of �all monies� clause, liable for whole of husband�s debt � plaintiff commenced proceedings alleging contravention of s52 Trade Practices Act 1974 (Cth) & s12DA Australian Securities & Investment Commission Act 2001 (Cth) � detailed consideration of Garcia v National Australia Bank Ltd (1998) 194 CLR 395 & other case law � summary judgment for the defendant granted in relation to one paragraph of plaintiff�s pleadings, otherwise application for summary judgment dismissed � an interesting decision. Dowdle

From the District Court of New South Wales� Sandra Ellen Mills v Perpetual Trustee Limited & Ors [2008] NSWDC 210 District Court of New South Wales Cogswell SC DCJ Limitation of actions � application to extend limitation period � detailed consideration of case law � application refused. Sandra Ellen Mills

Page 2 Click here to visit our website

Page 2 Click here to visit our website

Page 2 Click here to visit our website

Page 2 Click here to visit our website

And from the United States of America� Jerry Hill et al v State Farm Mutual Automobile Insurance Company, B194463 Court of Appeal of the State of California, Second Appellate District, Division Three Klein PJ; Kroskey & Mallano JJ Business judgment rule : a Court will not interfere with a corporate decision to withhold dividends in the absence of a showing of abuse of the wide discretion which the courts grant to corporate directors - nationwide class action in which fifty million present & former policyholders of State Farm Mutual Automobile Insurance Company (State Farm) contend that during the class period, 1983 to 1998, State Farm breached a duty to pay billions of dollars in dividends &, as a result, created an excessive surplus � primary judge had granted State Farm�s application for summary judgment, which was based on the business judgment rule, asserting that the board of directors of State Farm had made its financial decisions on an informed basis, in good faith, & with the honest belief that it was acting in the company�s best interests - on appeal, primary judge�s decision affirmed � an interesting decision. Jerry Hill Lenora Reid v Kohl�s Department Stores, Incorporated, No. 07-3916

United States Court of Appeals for the Seventh Circuit Bauer, Wood & Williams JJ Personal injury - plaintiff/appellant slipped & fell on floor of retail store �spilled strawberry milkshake - district court granted summary judgment in favour of respondent � held on appeal that appellant had failed to meet her burden of showing respondent had constructive notice, that is, that the foreign substance had been on the floor for such a length of time that respondent should have discovered it � decision of district court granting summary judgment affirmed. Lenora Reid

Page 3 Click here to visit our website