DEVIL DOG PTY LTD v. DAVID JOHN COOK
SUPREME COURT OF WESTERN AUSTRALIA
TOTTLE J: The plaintiff applies for an injunction restraining the defendant from breaching restraint of trade provisions contained in a Deed of Restraint made between the plaintiff and the defendant on 18 July 2014. The Deed of Restraint was made pursuant to a term of an agreement, also made on 18 July 2014, between the plaintiff and D & S Cook Enterprises Pty Ltd to purchase a business carried on under the name 'Matchtec Hydraulics' (the Business). The defendant had established and developed the Business and he was a director of the vendor, D & S Cook Enterprises Pty Ltd. The activities of the Business involved the service and repair of hydraulic cylinders and associated components and the manufacture of hydraulic cylinders when customers' cylinders were damaged or worn beyond serviceable condition.
To heave, or not to heave – a dirty business
Correct way to interpret exclusion clause was to construe it by reference to natural and ordinary meaning
On 25 December 2011, a storm resulted in an inundation of hail and rain which led to pooling under the concrete slab of Ms Guastalegname’s home. As a result of the pooling, there was a heave of the clay soil causing it to expand and raise the concrete slab, subsequently lifting the walls and roof frame of the building, leading to cracking and other damage to the home.
Ms Guastalegname claimed indemnity under her ‘Home Building Insurance’ policy with AAMI for the cost of repairing the damage to her home. AAMI admitted that the storm was an insured event and had caused the inundation which resulted in the heave and the damage of the home. However,
Landlord precluded from claiming against tenant for losses arising from a fire due to covenant to insure in the lease
Landlord precluded from claiming against tenant for losses arising from fire due to covenant to insure in lease
The plaintiff landlord commenced an action against one of its tenants for negligence arising out of a fire loss that occurred at the landlord’s premises. The plaintiff landlord was indemnified by its insurer which advanced a subrogated claim against the tenant. As a term of the lease, the tenant contributed to the insurance premiums for coverage provided by the landlord.
The issue before the court was whether the insurer was precluded from a subrogated action against the tenant by virtue of the terms of the lease.