Category Archives: s. 140

Baxter v Baxter [2014] VSC 377 (22 August 2014)

TESTATOR’S FAMILY MAINTENANCE — Application under Pt IV of the Administration and Probate Act 1958 — Deceased survived by three adult sons, three grandchildren and one stepgrandchild — Claim by adult son of the deceased — Whether the deceased had a responsibility to make further provision for the son — Further provision ordered

Briggs v Mantz [2014] VSC 281 (22 August 2014)

TESTATOR’S FAMILY MAINTENANCE — Application under Pt IV of the Administration and Probate Act 1958 — Deceased survived by adult son and four adult grandchildren — Estate divided equally between the son and four grandchildren — Estate comprised principally of deceased’s home — Claim by the son of the deceased — Whether the deceased had a responsibility to make further provision for the son — Son sought further provision of the whole of the estate, alternatively, ninety per cent of the estate — Competing claims against the estate of the deceased — Son’s claim dismissed

Smith v O’Neill [2014] NSWSC 1119 (21 August 2014)

SUCCESSION – Wills probate and administration – Revocation of grant of Probate in common form – Whether Will executed in accordance with Part 2.1 of the Succession Act 2006 – Not so executed – Whether court satisfied that Will forms the deceased’s Will and that she intended it to form her Will – Gift to solicitor in Will – Another solicitor, a friend and colleague of solicitor/beneficiary, takes instructions from deceased – Suspicious circumstances – Whether deceased knew and approved of the terms of the Will

Hasler v Singtel Optus Pty Ltd;Curtis v Singtel Optus Pty Ltd;Singtel Optus Pty Ltd v Almad Pty Ltd [2014] NSWCA 266 (15 August 2014)

APPEAL – challenge to findings of fact – deference to trial judge

EQUITY – fiduciary duty – employee in position of conflict – accessory liability for knowing assistance in dishonest and fraudulent design – meaning of “dishonest and fraudulent design” – whether necessary to show knowledge of absence of informed consent – measure of equitable compensation

FRAUD – pleadings and course of trial – whether finding of dishonesty available

PRECEDENTS – departure from decision of another intermediate appellate court – where not necessary to do so in order to resolve appeal – where issue was important, causing inconsistent formulations of principle – precedential status of a decision which did not itself develop the common law but merely explained decision of High Court – comity

Vergara v Ewin [2014] FCAFC 100 (12 August 2014)

HUMAN RIGHTS – discrimination – sexual harassment – appeal against finding of sexual harassment by unwanted sexual intercourse – appellant challenged finding that sexual intercourse occurred – whether Judge failed to apply appropriately the standard of proof and to take account of the gravity of the finding – whether finding open on the facts found at trial

HUMAN RIGHTS – appellant challenged finding of sexual harassment occurring at a hotel and on a public street – consideration of the meaning of “workplace” in s 28B(6) of the Sex Discrimination Act 1984 (Cth)

DAMAGES – appeal against assessment of damages – whether Judge inappropriately had regard to punitive considerations in awarding damages

Australian Competition and Consumer Commission v Dateline Imports Pty Ltd [2014] FCA 791 (30 July 2014)

TRADE PRACTICES – false representations – misleading or deceptive conduct – allegation that respondents contravened ss 52 and 53 of the Trade Practices Act 1974 (Cth) (“the TPA”) by publishing certain false, misleading or deceptive representations in respect of certain goods – whether the representations contravened the TPA

TRADE PRACTICES – representation as to a future matter – reliance on s 51A of the TPA – whether there were reasonable grounds to support the representation made

TRADE PRACTICES – allegation that the first respondent breached s 52 of the TPA by representing that it had reasonable grounds to make certain representations – representations as to past and present matters – representations not made in contravention of the TPA – whether there were reasonable grounds to make the representations

TRADE PRACTICES – accessorial liability – representation as to a future matter – whether the second respondent had actual knowledge that the representation was made – whether the representation was misleading or deceptive – whether there were reasonable grounds for making the representation – whether the second respondent was knowingly concerned in the contravention of the TPA

Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 (25 July 2014)

ADMINISTRATIVE LAW – Civil Aviation Safety Authority – whether the Administrative Appeals Tribunal was bound to apply the principle in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 – whether the Tribunal erred in not requiring compliance with the rule in Browne v Dunn (1894) 6 R 67 – whether notice was given in any event satisfying the rule in Brown v Dunn and affording the appellant procedural fairness

EVIDENCE – rules of evidence may provide guidance to administrative tribunal – Administrative Appeals Tribunal not bound by the rules of evidence

Held: Appeal dismissed with costs

Cripps v Vakras [2014] VSC 279 (20 June 2014)

CONTRACT — Hire of art gallery — Whether implied duty of good faith or cooperation — Whether placing conditions on hirers’ access to gallery constituted breach — Whether collateral contract for sale of catalogue by gallery — Whether display of disclaimer in gallery constituted breach — Late payment of bond and sale proceeds constituted breach — Whether a director whose actions constitute a breach of contract can be liable for the tort of inducing breach of contract — Damages for late payment.

DEFAMATION — Internet — Personal websites — Three articles concerning hire of art gallery — Defamatory imputations — Application of the ‘Polly Peck’ principle — Whether hyperlinked article relevant to assessment of imputations carried by matter complained of.

DEFAMATION — Publication on internet — Judicial notice of use of search engines such as Google and Bing to increase instances of publication.

DEFAMATION — Common law defence of justification — Elements of defence.

DEFAMATION — Common law defence of fair comment — Elements of defence — Whether management of a gallery open to the public is a matter of public interest — Whether opinion must be one that an honest person might reasonably form — Whether defendant must provide particulars of facts on which comment is based — Test of malice.

DEFAMATION — Common law defence of qualified privilege — Elements of defence — Test of common duty or interest — Whether defence available where defamatory material published on generalist website as distinct from specialist website — Whether defence available for defamatory statements concerning management of art gallery open to public — Whether defence available for statements on internet in reply to verbal attack in the presence of attendees at art gallery — Test of malice.

DEFAMATION — Statutory defences of justification and honest opinion — Defamation Act 2005 ss 25, 31.

DEFAMATION — Damages — Common law principles — Application of ‘eggshell skull’ principle — Grapevine effect — Mitigation of damages for prior bad reputation of plaintiff — Mitigation due to provocation — Recovery by companies.

DEFAMATION — Damages — Statutory cap — Effect of statutory cap where there are multiple plaintiffs — Whether statutory cap requires scaling of damages — Mitigation where multiple publication of similar matter — Defamation Act 2005 ss 35, 38.

DEFAMATION — Damages — Aggravated damages — Whether timing of aggravating conduct affects application of statutory damages cap — Conduct of defendant that is improper, unjustified and lacking in bona fides — Further damaging publications by defendant — Unjustified maintenance of defences — Failure to remove defamatory material from internet — Relevance of defendant’s motives — Whether amount awarded for aggravated damages should be separately identified — Defamation Act 2005 ss 35, 36.

Nield v Mathieson [2014] FCAFC 74 (19 June 2014)

INDUSTRIAL LAW – appeal from the Federal Circuit Court – whether employment relationship existed – whether proper classification under relevant award – whether natural justice denied

EVIDENCE – whether trial judge erred by placing “too much” weight on demeanour and credit of witnesses – whether s 140 of the Evidence Act was correctly applied

EQUITY – quantum meruit claim

In the application of Roderick Mackay Sutherland and Sule Arnautovic [2014] NSWSC 821 (19 June 2014)

EQUITY – Priority and notice – Competition between equitable interests in land – Whether failure to lodge caveat results in loss of priority
ESTOPPEL – Estoppel by deed
EVIDENCE – Alleged forged signature – Onus of proof – Role of expert opinion as to handwriting – Proof of handwriting generally

In the matter of Colorado Products Pty Ltd (in prov liq) [2014] NSWSC 789 (16 June 2014)

TRADE PRACTICES – misleading or deceptive conduct – whether alleged representations were made by relevant defendant – representations as to future matters – whether relevant representations were misleading or deceptive or likely to mislead or deceive – whether defendant had reasonable grounds in making alleged representations – whether plaintiffs had relied on alleged representations – whether it can be established that loss and damage suffered by plaintiffs was caused by alleged representations – application of Corporations Act ss 1041, 1041E and 1041H, Fair Trading Act 1987 (NSW) ss 41, 42, 68 and Trade Practices Act 1974 (Cth).

CONTRACTS – construction – where parties relevantly entered into share sale deed and shareholders agreement – where claims have been made in respect of, inter alia, misappropriation of monies, diversion of business and misuse of confidential information – whether relevant defendant had breached provisions under relevant agreements – post-contractual conduct – whether post-contractual conduct admissible to prove existence of relevant setoff agreement.

CONTRACTS – restraint of trade – where relevant clauses contained in share sale deed and shareholders agreement prohibited parties from being involved in business which is the same or similar type of business conducted by relevant company – whether relevant clause is void for uncertainty – requirement to offer participation to company before taking up opportunity – whether relevant clause can be characterised as a restraint of trade clause – whether relevant clauses were reasonable as between parties – whether relevant clauses protected a legitimate interest – whether relevant clauses are contrary to public policy under Restraint of Trades Act 1976 (NSW) – whether relevant defendant had breached restraint of trade provisions.

CORPORATIONS – assignment of choses in actions – where provisional liquidator had assigned equitable and statutory causes of action of company to relevant plaintiffs under Corporations Act s 477(2)(c) – whether assignment by provisional liquidator was effective – whether causes of action constituted ‘property’ so as to be capable of assignment by liquidator.

CORPORATIONS – management and administration – duties and liabilities of officers of corporation – directors’ duties – claim for breach of fiduciary duties and breach of directors’ duties at general law – where relevant defendant was non-executive director of relevant company and director of other competing companies – conflict of interest – whether informed consent can be established – whether existing management structure narrowed scope of relevant defendant’s fiduciary duties – where claims have been made in respect of, inter alia, misappropriation of monies, diversion of business and misuse of confidential information – whether relevant defendant’s conduct amounted to breach of fiduciary duties.

CORPORATIONS – management and administration – duties and liabilities of officers of corporation – claim for breach of Corporations Act 2001 (Cth) ss 180, 181, 182, 183 and 191 – duty of care and diligence – duty to act in good faith in the company’s best interests – duty to not improperly use position to gain advantage or cause detriment to company – duty of disclosure – where claims have been made in respect of, inter alia, misappropriation of monies, diversion of business and misuse of confidential information – whether conduct of relevant defendants amounted to breach of statutory duties – accessorial liability – whether it can be established that relevant parties were knowingly concerned and involved in alleged contraventions of statutory duties under Corporations Act s 79.

LANDLORD AND TENANT – agreement for lease – rent – claim for outstanding rent – whether claim for rent can be established – whether entry into lease was induced by misleading or deceptive conduct or breach of fiduciary or statutory duties – whether landlord is estopped from claiming rent – public policy considerations – whether lease was wrongfully terminated.

REMEDIES – where relevant plaintiffs have been assigned causes of action in respect of breach of statutory duties by provisional liquidator of relevant company – whether relevant plaintiffs have standing to obtain compensatory relief under Corporations Act 2001 (Cth) s 1317H – whether plaintiffs are entitled to damages in respect of contravention of civil liability provisions under Corporations Act s 1324(10) – whether jurisdiction for granting injunction sufficiently enlivened for award of damages under s 1324(10).

REMEDIES – equitable compensation – account of profits – whether plaintiffs entitled to await judgment before proceeding with election of remedies – whether plaintiffs or relevant company suffered loss and damage as result of any established breach – loss of business and opportunity – whether there was a diminution in value of company’s business in respect of diversion of sales.

Telfer v Telfer [2014] NSWCA 186 (13 June 2014)

APPEAL – application to adduce further evidence – evidence could have been obtained through reasonable diligence for use at trial – evidence not likely to have led to a different result at trial

APPEAL – Leave to appeal against costs orders only – whether costs orders based on findings not justified by evidence – primary judge made findings of very serious misconduct based on the credibility of witnesses and adverse inferences drawn from evidence – failure to take into account the gravity of the allegations or matters bearing on the inherent probability that such misconduct occurred – whether appellate intervention is justified in the circumstances

APPEAL – application of Supreme Court Act 1970 (NSW) s 75A – not in the interests of justice to order a new trial in circumstances where the appellant no longer sought to disturb the substantive orders

Prodduturi v Minister for Immigration and Border Protection [2014] FCA 624 (13 June 2014)

PRACTICE AND PROCEDURE – application for leave to amend notice of appeal – where proposed grounds not raised in Court below – whether adequate explanation for why grounds not raised below

PRACTICE AND PROCEDURE – application to set aside notice to produce – whether documents sought go to any issue relevant to the appeal

ABN AMRO Bank NV v Bathurst Regional Council [2014] FCAFC 65 (6 June 2014)

CONTRACT – breach of contract – contract for provision of financial services – implied warranties in s 12ED of Australian Securities and Investments Commission Act 2001 (Cth) – damages for breach of contract

CORPORATIONS – financial products – breach of Australian financial services licence under s 912A of Corporations Act 2001 (Cth) – meaning of derivative in s 761D(1) of Corporations Act 2001 (Cth) – meaning of debenture in s 9 of Corporations Act 2001 (Cth)

CORPORATIONS – misleading and deceptive statements – whether statements based on reasonable grounds and result of exercise of reasonable care and skill – effect of disclaimers – proportionate liability provisions

CORPORATIONS – rescission – requirements of s 924A of Corporations Act 2001 (Cth) – notice under s 925A of Corporations Act 2001 (Cth) – whether notice given within a “reasonable period”

DAMAGES – causation – remoteness – “rule” in Potts v Miller [1940] HCA 43; (1940) 64 CLR 282 – contributory negligence – statutory damages – measure for damages – apportionment – proportionate liability

EQUITY – fiduciary obligations – informal advisory relationship arising from conduct – whether breach of fiduciary duty – equitable compensation – equitable contribution

INSURANCE – whether insured entity a party to contract of insurance – effect of s 48 of Insurance Contracts Act 1984 (Cth) – duty of disclosure – construction of terms

PRACTICE AND PROCEDURE – entitlement to raise new matters on appeal

STATUTORY INTERPRETATION – whether investment permissible under s 625 of Local Government Act 1993 (NSW) – whether product a security within the meaning of relevant Ministerial order

TORT – whether duty of care owed – negligent misstatement – indeterminate liability – vulnerability – causation – unlawful conduct – effect of disclaimers – contributory negligence

TRADE PRACTICES – misleading and deceptive conduct – whether conduct engaged in “in this jurisdiction” – whether conduct in relation to financial product or financial services – “mere conduit”

Brown v Guss [2014] VSC 251 (2 June 2014)

WILLS — Testamentary capacity — Whether the deceased had capacity to give instructions for a will — Whether the deceased had capacity to execute a will —Court satisfied that the deceased had capacity.

WILLS — Knowledge and approval — Onus of proof to be applied — Suspicious circumstances — Court satisfied that the deceased read over and understood the provisions of the will.

WILLS — Undue influence — Standard of proof — Boyse v Rossborough (1857) 6 HL Cas 1 — Nicholson v Knaggs [2009] VSC 64 (27 February 2009) — Will not affected by undue influence.

Zraika v Walsh (No 2) [2014] NSWSC 655 (23 May 2014)

PROCEDURE – notice of motion – order sought under s 82(1) of the Civil Procedure Act 2005 (NSW) against the first and second defendants for interim payment of part of the damages and which plaintiff claims to be entitled – whether such an order should be entertained – medical causation in issue – no expert advice obtained from first and second defendants as yet – whether judgment for substantial damages would be obtained if proceedings go to trial – orders made

Petrovic v Brett Grimley Sales Pty Ltd [2014] VSCA 99 (22 May 2014)

PROPERTY LAW – Appeal against an order that a transfer was a voidable transaction under s 172(1) of the Property Law Act 1958 (Vic) – Appellant received a transfer from his mother in excess of an amount she paid him pursuant to a constructive trust in favour of the appellant’s father – Whether transfer was an alienation with an intent to defraud creditors – No error in the trial judge’s finding that the mother intended to defeat creditors – Appeal dismissed – Briginshaw v Briginshaw (1938) 60 CLR 336 – Property Law Act 1958 (Vic) s 172.

Fulton v Fulton [2014] NSWSC 619 (22 May 2014)

ADMINISTRATION OF ESTATE OF DECEASED – Amounts claimed by the Plaintiffs, who are named executors of the Will of the deceased to whom Probate granted, as moneys alleged to have been wrongfully withdrawn, by their brother and sister-in-law during the lifetime of the deceased, out of bank accounts conducted by him – Agreement reached at the hearing as to quantum of the amounts withdrawn but not liability of the Defendants, or any of them, to repay any part of, those amounts – Defendants assert authority, oral or in writing, given by the deceased, or otherwise that they were gifts by the deceased to them or alternatively “an advance on inheritance” – Amount that should be repaid to the estate – Whether interest on the amounts withdrawn and to be repaid should be paid, and if so, from what date and at what rate

SUCCESSION – CONSTRUCTION OF WILL – Whether the deceased intended to make dispositive provision in Will in favour of his son and daughter-in-law or whether the terms of the Clause explain reasons for making no provision for his son or otherwise

SUCCESSION – FAMILY PROVISION – Two of the Defendants make a claim for a family provision order – No dispute as to one Defendant’s eligibility as a child of the deceased – Dispute as to eligibility of other Defendant who is the daughter-in-law of the deceased – Also dispute whether there are factors warranting the making of her application – Plaintiffs are the other children of the deceased and the sole residuary beneficiaries named in the Will – No provision made in the Will of the deceased for either Defendant – Estate distributed – Only actual estate may be amount ordered to be repaid – Extension of time required for making of applications – Whether family provision order should be made, and if so, the nature and quantum of the provision to be made

Sandri v O’Driscoll & Anor [2014] VSCA 88 (8 May 2014)

EQUITY – Proprietary estoppel – Contract of sale between family members – Transfer of half-interest in home by elderly parents – Whether contract was principal repository of parties’ rights and obligations – Relevance of parties’ pre-contractual understanding – Whether appellant induced to rely on terms of pre-contractual understanding – No detrimental reliance – Appellant bound by subsequent contract – Austotel Pty Ltd v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582 applied – Appeal dismissed.

HWY Rent Pty Ltd v HWY Rentals (in liq) (No 2) [2014] FCA 449 (8 May 2014)

BANKRUPTCY – Bankruptcy notice set aside – Where notice issued as part of systematic abuse of process – Where failure to attach a copy of judgment and orders – Where notice founded upon fraudulently obtained default judgment subsequently set aside – Where service of bankruptcy notice invalid

COSTS – Whether Court ought to exercise discretion to award indemnity costs – Where no genuine intent to prosecute proceedings – Where proceedings conducted for ulterior and improper purposes – Where party filed falsified documents

PRACTICE AND PROCEDURE – Application for vexatious proceedings order pursuant to s 37AO of the Federal Court of Australia Act 1976 (Cth) – Meaning of the term “proceeding” – Meaning of the term “institute” – Whether a request to issue a bankruptcy notice under s 41(1) of the Bankruptcy Act 1966 (Cth) constitutes the institution of proceedings for the purpose of s 37AO of the FCA Act – Where multiple proceedings conducted vexatiously and found to constitute an abuse of the Court’s processes – Where conduct designed to harass and intimidate another party – Whether vexatious proceedings instituted “frequently” – Whether an appropriate opportunity to be heard afforded as required by s 37AO(4) of the Act

Fair Work Ombudsman v Maritime Union of Australia [2014] FCA 440 (6 May 2014)

INDUSTRIAL LAW – four employees elected to work during a protected action strike – after the strike posters were distributed at the workplace specifically naming the four employees and one other as scabs – the “scab poster” used language which denigrated the named employees as being unworthy of being treated with the dignity and respect normally accorded to human beings – a union official admitted distributing the scab posters – whether the union official organised the publication and distribution of the scab posters – whether the conduct amounted to adverse action – whether the named employees were prejudiced in their employment – whether the union was directly liable in respect of the scab poster action – whether the scab poster action was conduct engaged in with the intent to coerce one or more of the named employees to engage in further strike action.

SZQYM v Minister for Immigration and Citizenship [2014] FCA 427 (1 May 2014)

MIGRATION – appeal from decision of Federal Magistrates Court – judicial review of decision of delegate – appellants North Korean nationals – whether appellants also South Korean citizens – whether protection visa applications invalidated by virtue of s 91P of the Migration Act 1958 (Cth) – jurisdictional fact – onus of proof – standard of proof – whether sufficient evidence to support judicial finding of citizenship

EVIDENCE – receipt of expert evidence – leave sought to adduce new evidence on appeal – expert evidence concerning foreign law – discretionary considerations – utility of evidence – expense and delay – leave refused

Pillinger v Lismore City Council [2014] NSWSC 447 (16 April 2014)

TORTS – negligence – motorcyclist injured after driving over loose material on newly resurfaced road – whether parties responsible for conducting roadworks negligent – application of Part 5 of the Civil Liability Act 2002 – cross-claim between defendants – interpretation of contract – contributory negligence – contribution between defendants pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946.

Chapel Road Pty Limited v Australian Securities Investments Commission (No 10) [2014] NSWSC 346 (28 March 2014)

TORTS – malicious prosecution – misfeasance in public office – elements of tort – revocation of security dealer’s licence – whether plaintiff pleaded case it pressed – can tort of misfeasance in public office be established by aggregating the conduct of various ASIC officers as plaintiff sought to do – statutory framework – the elements of tort of misfeasance in public office – plaintiff’s approach to the tort not available – whether factual findings sought can be made – credit issues – Jones v Dunkel inferences – expert evidence – ASIC’s practises in 1999 – expert’s views – Regulation 7.3.02 of Corporations Law – compliance system – whether decision to commence second surveillance motivated as alleged – whether conduct of ASIC officers in second surveillance was conducted and motivated as alleged – whether decision to use results of second surveillance for revocation of or imposition of conditions upon plaintiff’s licence motivated as alleged – whether decision of the delegate to revoke licence motivated as alleged – damages – causation – expert evidence as to valuation – orders

Tov-Lev v Lowbeer (No 2) [2014] FCA 379 (11 March 2014)

1. Rabbi Dr Samuel Tov-Lev, David Cliffe and Joseph de Varda, the appellants, have filed two proceedings against John Lowbeer, the respondent. The first, an appeal against orders made by the Federal Circuit Court on 20 December 2013 making sequestration orders against each of the appellants: Lowbeer v Tov Lev [2013] FCCA 1813; and the second, an originating application that seeks the annulment of those sequestration orders under s 153B of the Bankruptcy Act 1966 (Cth).
2. The trial judge ordered stays for 21 days of each sequestration order under s 52(3) of the Act. On 5 February 2014, a judge of the Court ordered a further stay pending determination of the appeal. On 14 February 2014, I ordered, among other things, that:
the appellants file, in the annulment proceedings, an amended application joining, as a respondent, their trustee in bankruptcy, and serve the same on or before 18 February 2014;
the appeal and the annulment application be heard together, and that evidence in one be evidence in the other.
3. The appellants ignored the order to join and serve their trustee, and there is no evidence that they have even informed their trustee of the annulment proceedings. On 18 February 2014, the appellants also filed an interlocutory application in the annulment application seeking the substantive relief they sought. The interlocutory application added nothing to the content of the annulment application.
4. There was very little in the appeal or application papers that could be characterised as evidence, but there are many assertions in those materials. The solicitor for the respondent prepared a bundle of further documents, some of which consisted of judgments involving the parties in other proceedings in the Supreme Court of New South, and evidence that had been filed in those proceedings. I have tried to ascertain the areas of common ground from this material, together with the matters that have been proved in evidence at the hearing, in the account of the facts that follows.

Southage Pty Ltd v Vescovi & Ors [2014] VSC 141 (4 April 2014)

RESTITUTION − Money paid under mistake of fact − Unjust enrichment – Where defendant’s signature was forged on loan documentation – Where money lender lent money mistakenly believing defendant had requested a loan and had given a mortgage security − Loan funds used by defendant’s husband to pay deposit under contract of sale for other land – Proper identification of moment of enrichment – Whether enrichment received by virtue of defendant’s subsequent nomination as purchaser under the contract − Principles of tracing − Whether proceeds of loan could be traced into estate in land − Tracing into a mixed fund at common law − Whether assessment of enrichment by acquiring estate interest in land must take into account liabilities incurred in consequence − Whether enrichment by virtue of occupation of property − Defence of change of position on the faith of the receipt – Whether knowledge of facts entitling defendant to deal with property must be derived from payer − Significance of non-retention of benefit − Unjust to require restitution − David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; (1992) 175 CLR 353 − Heperu Pty Ltd v Belle ([2009] NSWCA 252; 2009) 76 NSWLR 230 − Perpetual Trustees Australia Ltd v Heperu Pty Ltd [2009] NSWCA 84; (2009) 76 NSWLR 195 − Hills Industries Pty Ltd v Australian Financial Services and Leasing Pty Ltd [2012] NSWCA 380 − Lipkin Gorman (a firm) v Karpnale [1991] 2 AC 548 – State Bank of NSW v Swiss Bank Corporation (1995) 35 NSWLR 350 – Commissioner of State Revenue v Politis [2004] VSC 126.

CGP (Aust) Pty Ltd v Stevens [2014] VSC 105 (31 March 2014)

CONTRACT – Magistrates’ Court – appeal on questions of law from Magistrates’ Court – claim based on invoice for work performed- identification of issues in proceeding – whether issues in respect of earlier invoice wrongly determined – proof of payment – whether Magistrate required to disclose findings about credibility of witness – whether no evidence to support finding – whether failure to take relevant consideration into account – standard of proof applied- findings as to appropriate payment for work

Craigcare Group Pty Ltd v Superkite Pty Ltd [2014] NSWSC 326 (26 March 2014)

CONTRACT – whether contract between Plaintiff and first Defendant – Contract established between Plaintiff and first Defendant as to money paid and the terms upon which it was paid to trust account

EQUITY – TRUSTS – whether money paid into firm of solicitors’ trust account was held on trust for Plaintiff as it was only to be used for prescribed purposes – whether trust was breached by payment out for purposes other than prescribed purposes – whether Plaintiff entitled to equitable compensation – whether second Defendant liable as an accessory to breach of express trust or breach of Quistclose trust under the second limb of Barnes v Addy – consideration of Quistclose trust – Express trust in favour of Plaintiff – breach of trust established – Whether Plaintiff entitled to “equitable damages” – Second Defendant is not liable for knowing assistance in breach of trust

COSTS – Whether to cap costs in view of amount of the claim – Plaintiff to recover 65% of its costs, such costs to be calculated on the ordinary basis – Second Defendant to pay his own costs of proceedings

Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271 (25 March 2014)

INDUSTRIAL LAW – employment – adverse action – respondent employer dismissed applicant employee for redundancy – adverse action taken by respondent against applicant under s 342(1) of the Fair Work Act 2009 (Cth)

INDUSTRIAL LAW – employment – complaints – whether adverse action taken against applicant because applicant exercised workplace rights under s 340 of the Fair Work Act 2009 (Cth) – whether applicant exercised workplace rights by making any of five successive complaints in relation to her employment under s 341(1)(c)(ii) of the Fair Work Act 2009 (Cth) – first and second complaint related to allegation of sexual harassment by senior colleague in Hong Kong – third complaint related to allegations of further misconduct by the senior colleague and other employees in the course of the investigation into the Hong Kong incident – fourth complaint related to the alleged deficiencies in the investigation and investigator’s report and included further allegations of misconduct by colleagues, including the respondent’s managing director – fifth complaint related to the managing director’s alleged attempt unlawfully to terminate the applicant’s employment – meaning of complaints that employee is able to make in relation to employment – whether an instrumental basis required for a complaint under s 341(1)(c)(ii) – whether complaint must be made in good faith – whether complaints made by applicant were genuine grievances made in good faith for a proper purpose – relevance of and evidence for the applicant’s allegations of misconduct by colleagues (including the respondent’s managing director) and of corporate culture tolerant of sexual harassment made in the fourth complaint and at trial

INDUSTRIAL LAW – employment – redundancy – whether restructure of the respondent’s business units and the applicant’s dismissal for redundancy were genuine – whether complaints made by the applicant a substantial and operative reason for the decision to terminate her employment for redundancy

Ubertini v Saeco International Group SpA (No 4) [2014] VSC 47 (18 March 2014)

CORPORATIONS – Oppression – compulsory acquisition of minority shareholdings – parent company majority shareholder in subsidiary – demands for payment by parent company – non-supply of new range of stock to subsidiary – alleged failure or refusal by parent company to fill stock orders of subsidiary – appointment of administrators to subsidiary by parent company’s nominee directors on board of subsidiary – charging of penalty interest by parent company on outstanding debts of subsidiary – whether deliberate course of conduct by parent company to remove minority shareholder of subsidiary from management and acquire minority shareholdings in subsidiary without payment – whether parent company’s nominee directors on board of subsidiary failed to properly assist subsidiary – whether conduct of parent company contrary to the interests of members of subsidiary as a whole, or oppressive to, unfairly prejudicial to or unfairly discriminatory against minority shareholders of subsidiary – applicable legal principles – whether conduct of parent company conduct in the affairs of the subsidiary – prevention of board meetings – whether unauthorised transfer of funds, related party transfers and improper incurring of adviser fees by minority shareholder of subsidiary – whether alleged conduct of minority shareholder oppressive conduct – whether alleged failure by minority shareholder to cause subsidiary to pay debts to parent company oppressive conduct – whether oppressive conduct of minority shareholder should disentitle relief sought – Corporations Act 2001 (Cth), ss 53, 232, 233.

Ell v Milne (No 8) [2014] NSWSC 175 (7 March 2014)

DEFAMATION – defences – defence of qualified privilege at common law – email headed “letter to the editor” concerning conduct of developer sent to about 70 email addresses including newspapers, politicians and environmental groups – whether to be inferred that recipients opened and read email – whether email published on an occasion of qualified privilege – defence of contextual truth – whether defendant’s contextual imputation concerning political donations proved substantially true

DEFAMATION – damages – where plaintiff did not give evidence or attend any part of hearing – whether entitled to any award for hurt to feelings or any aggravated damages

State of New South Wales v Hunt [2014] NSWCA 47 (13 March 2014)

APPEAL AND NEW TRIAL – findings of fabrication of evidence by police officer – fabrication of key findings not put in cross-examination – submission of fabrication not made – agreement not to take Browne v Dunn points did not prevent substantial miscarriage of justice – retrial ordered

APPEAL AND NEW TRIAL – failure to address substantial component of defence case – failure to grapple with competing testimonial evidence in light of independent evidence – failure to address separate heads of damages

POLICE – rights, powers and duties – actions for malicious arrest, assault and battery and misfeasance in public office – whether lawful arrest – nature of tort of “malicious arrest” considered

Bibby Financial Services Australia Pty Limited v Sharma [2014] NSWCA 37 (5 March 2014)

CONTRACT – Whether employment contract terminated without cause or terminated for cause for serious misconduct – Whether election was made between available grounds for termination – Whether subsequent conduct amounted to a withdrawal of termination – Whether compliance with process for termination for serious misconduct – Whether non-compliance rendered the asserted termination for cause invalid and of no effect – Whether proper grounds available on the facts for termination for serious misconduct – Whether employee had an accrued right which remained even if terminated for cause
EVIDENCE – Standard of Proof – Briginshaw Standard – clear and cogent proof of serious allegations
EVIDENCE – Standard of Proof – s140(2) Evidence Act – gravity of the matters alleged – clear and cogent proof of serious allegations
HUMAN RIGHTS – Discrimination – Sex Discrimination – Sexual Harassment – s28A Sex Discrimination Act – Whether incidents relied upon constituted sexual harassment

Borcherdt v Commissioner of Taxation [2014] FCA 56 (11 February 2014)

ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal – respondents purchased fuel for use in sawmilling and farming businesses – respondents claimed diesel fuel credits and diesel tax credits under Energy Grants (Credits) Scheme 2003 (Cth) and Fuel Tax Act 2006 (Cth) – question as to whether fuel supplier existed – no reliable record kept by respondents of fuel use – Commissioner of Taxation disallowed claims for diesel fuel credits and diesel tax credits – s 14ZZK(b) Taxation Administration Act 1953 (Cth) – Tribunal affirmed decision of Commissioner of Taxation – whether Tribunal bound to take into account conduct of Commissioner of Taxation in regard to obligation to act as a model litigant – whether Tribunal failed to take into account relevant considerations – whether Tribunal took into account considerations it was bound not to take into account – whether Tribunal improperly adopted approach and standard of proof applicable to civil litigation – whether Tribunal required to accept evidence in absence of evidence to the contrary – whether Tribunal erred in application of an administrative penalty – distinction between error of law and error of fact – absence of specific reference to material by Tribunal not conclusive of a failure to take material into account or inadequacy of reasons – reasons of Tribunal to be considered as a whole to ascertain whether relevant issues addressed – Tribunal not required to accept evidence in absence of evidence to contrary – Tribunal not required to consider evidence on standard other than balance of probabilities – Tribunal did not err in respect of administrative penalties

Ashby v Slipper [2014] FCAFC 15 (27 February 2014)

PRACTICE AND PROCEDURE – application for leave to appeal from decision to dismiss proceedings as an abuse of process – leave to appeal required – principles relating to appellate review – challenge to factual bases upon which proceedings classified as an abuse of process – whether or not improper collateral purpose for bringing proceeding – adverse inferences drawn by primary judge – whether solicitor has standing to appeal in relation to adverse findings made as to the conduct of a proceeding – whether the Court has duty to act in relation to a perceived abuse of process – inferences to be drawn from a failure of a witness to depose to matters in issue – application of the Ferrcom principle.

Morris v Smoel [2014] VSC 31 (14 February 2014)

TESTATOR’S FAMILY MAINTENANCE — Application under Pt IV of the Administration and Probate Act 1958 — Deceased survived by widow and three adult children — Widow effectively left a life interest in the estate with the residue left to the adult daughters of the deceased on the death of the widow — Adult son of the deceased left a small legacy — Claim by widow of the deceased — Whether the deceased had a responsibility to make further provision for the widow — Competing claims against the estate of the deceased — Estate assets substantially depleted as a result of litigation resulting from the death of the deceased — Widow’s claim dismissed

BANKRUPTCY — Death of the widow after trial and before judgment — Estate of the widow insolvent — Representative of estate of the widow to make application for administration of plaintiff’s estate pursuant to s 247 of the Bankruptcy Act 1966 (Cth)

Helou v Nguyen [2014] NSWSC 22 (5 February 2014)

PROPERTY – Theft – Stolen money – Remedies at law and in equity – Action for damages in conversion and for moneys had and received – Suit for Constructive Trust in Equity – Need for consistency – Interests of Justice
REMEDY – Remedies based on compensation for Plaintiff’s loss or accounting for wrongdoer’s gain – Consistency of remedy required – Interests of Justice
EQUITY – Trusts and trustees – Constructive trust
TORTS – Trover and Detinue – Action for conversion – Remedies – Waiver of Tort – Damages – Money had and received

Registrar of Aboriginal and Torres Strait Islander Corporations v Matcham (No 2) [2014] FCA 27 (5 February 2014)

CORPORATIONS – Aboriginal and Torres Strait Islander corporation – chief executive officer of corporation contravened multiple provisions of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) – civil penalty regime – orders for relief – orders for disqualification from managing a corporation, compensation and pecuniary penalty – whether multiple contraventions separate or part of one course of conduct – whether aggregate penalty appropriate in the totality of the circumstances

Estate of Laura Angius; Angius v Angius [2013] NSWSC 1895 (17 December 2013)

WILLS, PROBATE AND ADMINISTRATION – informal testamentary document – no dispute that undated document not executed in accordance with s 6 Succession Act 2006 – No dispute that the undated document purports to state the testamentary intentions of a deceased – Deceased familiar with the formal requirements for the making of a valid will – Whether Court satisfied that the deceased intended the undated document to form a Will – Consideration of circumstances in which the document was made – No dispute that if Court not satisfied should be grant of Letters of Administration with formal 2007 Will annexed to independent solicitor agreed to by the parties

Kiefel v State of Victoria [2013] FCA 1398 (20 December 2013)

HUMAN RIGHTS – Discrimination – minor with disability – educational services – consideration of direct and indirect discrimination before and after the 2009 amendments to the Disability Discrimination Act 1992 (Cth) – direct discrimination – whether aggrieved person treated less favourably in circumstances that are not materially different – whether failure to provide reasonable adjustments has the effect that person with disability is treated less favourably in circumstances that are not materially different – ground not made out – indirect discrimination – whether aggrieved person required to comply with requirement or condition with which a substantially higher proportion of persons without disability are able to comply – whether requirement or condition imposed upon an aggrieved person are unreasonable – reasonable degree of precision necessary in formulation – requisite precision absent – ground not made out – alleged breach of Disability Standards for Education – no contravention of standards – application dismissed

Vukotic v Vukotic [2013] VSC 718 (13 December 2013)

WILLS — Application for a grant of probate — Testamentary capacity — Whether the deceased had capacity to give instructions for a will — Whether the deceased had capacity to execute a will — Medical evidence not sufficient to support a finding of a lack of capacity — Deceased had capacity according to the Banks v Goodfellow test to give instructions — Deceased had capacity according to the Parker v Felgate test to execute the will

WILLS — Application for a grant of probate — Knowledge and approval — Onus of proof to be applied — Suspicious circumstances — Court satisfied that the deceased read over and understood the provisions of the will

Australian Securities and Investments Commission v Australian Property Custodian Holdings Limited (Receivers and Managers appointed) (in liquidation) (Controllers appointed) (No 3) [2013] FCA 1342 (12 December 2013)

CORPORATIONS – duties of responsible entity of managed investment scheme under s 601FC – duties of officers of responsible entity under s 601FD
STATUTORY DUTY TO ACT IN BEST INTERESTS OF MEMBERS – meaning of “best interests of members” – whether best interests of members is subjective or objective – duty of undivided loyalty to members of scheme – conflict of interests – conflict of interest and duty – duty to give priority to members’ interests –care and caution required where conflicts exist
STATUTORY DUTY TO EXERCISE CARE AND DILIGENCE – standard of care – standard of care for directors of a responsible entity acting as a professional trustee – failure to consider effects of amendment to scheme constitution – failure to consider whether legitimate reasons for amendment – failure to be satisfied as to power to make amendments – reliance on legal advice – reliance on unusual and uncertain legal advice – failure to comply with scheme constitution and Act – failure to properly consider effect of amendments on members’ rights and interests – failure to identify conflict of interests – failure to consider how to appropriately resolve conflicts – duty to prioritise members’ interests – obligation to revisit decisions previously made
STATUTORY DUTY NOT TO MAKE IMPROPER USE OF POSITION TO GAIN ADVANTAGE – meaning of “to gain” and advantage or “to cause” detriment – meaning of improper use
STATUTORY DUTY TO TAKE ALL REASONABLE STEPS TO COMPLY WITH SCHEME CONSTITUTION – scheme constitution contractually binding – scheme constitution not inconsistent with Act – scheme constitution qualifies statutory power to amend
MEMBERS’ RIGHTS – whether right to have scheme administered according to existing constitution is a “members right” under s 601GC – failure to consider members’ right to have scheme administered according to existing constitution – amendment invalid as outside power – whether amendments made outside power become valid once lodged with ASIC
RELATED PARTY TRANSACTION IN MANAGED INVESTMENT SCHEME – breach of s 208 (as modified) of responsible entity – involvement of officers of responsible entity in breach of s 208 – essential elements of the prohibition in s 208 – whether s 208(3) is an exception to the prohibition – officers’ honest belief that constitution contain provision allowing payment
LODGEMENT OF AMENDMENTS TO SCHEME CONSTITUTION – whether lodgement of consolidated scheme constitution is sufficient under s 601GC – whether lodgement of amendments themselves is required
COMPANY PROCEDURE – decision-making by meeting of directors – obligation to clearly express will in meeting of directors – obligation to ensure expression of will is clearly recorded – whether conduct amounts to or conveys assent to a resolution
DEEDS – when does an undated deed come into effect – intention of the parties to the deed – intention by reference to statutory framework