Category Archives: s. 140

Julstar Pty Ltd v Hart Trading Pty Ltd [2014] FCAFC 151 (13 November 2014)

TRADE PRACTICES – EVIDENCE – whether misleading or deceptive representations made orally or by conduct in relation to purchase of franchise business – where purchaser of franchise operated business for significant time without complaint before alleging misrepresentations – proof of fact requires court to feel actual persuasion of its existence – where trial many years after making of alleged representations and conduct complained of

APPEAL AND NEW TRIAL – where significant delay between conclusion of trial and delivery of judgment – limitations of appellate courts in reviewing credibility findings by trial judge

Australian Competition and Consumer Commission v Air New Zealand Limited [2014] FCA 1157 (31 October 2014)

TRADE PRACTICES – price fixing – alleged arrangements or understandings between airlines to fix fees and surcharges in relation to the carriage of air cargo – Trade Practices Act 1974 (Cth) ss 45 and 45A – whether airlines engaged in collusive practices – whether airlines bound by domestic law or practice of foreign countries to fix charges

TRADE PRACTICES – price fixing – whether alleged price fixes had purpose, or were likely to have the effect, of substantially lessening competition in a market in Australia – whether markets were ‘in Australia’ for the purposes of Trade Practices Act 1974 (Cth) s 4E – definition of market – assessment of substitution and switching behaviour – assessment of product, geographical and functional dimensions

EVIDENCE – proving a contract, arrangement or understanding within the meaning of Trade Practices Act 1974 (Cth) s 45 – circumstantial proof of collusive behaviour – evidence to be looked at as a whole

Dennis v Council of the Law Society of New South Wales [2014] NSWSC 1487 (31 October 2014)

LEGAL PRACTITIONERS – decision by Council of the Law Society of NSW to suspend practising certificate and appoint a manager – complaints of refusal to comply with requests of investigator and of obstructing investigator – dispute as to meaning of sections of Legal Profession Act 2004 – appeal against suspension and appointment of manager – hearing de novo – meaning of sections 267, 268 and 270 of Legal Profession Act 2004 – whether suspension necessary in the public interest – whether complaints made out.

Leica Geosystems Pty Ltd v Koudstaal (No 3) [2014] FCA 1129 (23 October 2014)

INTELLECTUAL PROPERTY – applicants in business of selling and developing software for use in mining industry – first respondent a former employee of the first applicant – first respondent left employment with first applicant and commenced employment with competitor company in similar role – first respondent copied applicants’ material including product source code to an external hard drive prior to resigning – material accessed by first respondent while employed by applicants’ competitor – infringement of copyright – breach of duty of confidence – breach of employment contract – breach of s 183(1) Corporations Act 2001 (Cth) – whether compensatory damages claim substantiated by applicants – s 115(2) Copyright Act 1968 (Cth) – appropriate amount of additional damages justified in circumstances of case – s 115(4) Copyright Act 1968 (Cth) – need to deter similar infringements – conduct of the first respondent after infringement– first respondent an individual rather than corporation – no demonstrable financial benefit to first respondent from infringement – no compensable loss demonstrated by applicants

PRACTICE AND PROCEDURE – applicants seeking order for return of applicants’ material in possession or control of first respondent or his current or former legal representatives – whether order specifying return of material in possession of legal representatives necessary or appropriate – only applicable if material not in control of first respondent – ability of first respondent to comply with order if material not in his control

Munday v Commonwealth of Australia (No 2) [2014] FCA 1123 (21 October 2014)

HUMAN RIGHTS – Discrimination – disability – discrimination alleged in conduct of Commonwealth program regarding early release of superannuation on compassionate grounds – early release of superannuation sought by second applicant to pay for in-vitro fertilisation (IVF) treatment overseas on the basis that it was necessary to alleviate acute or chronic depression – IVF treatment would involve paying for ova – first application rejected because decision-maker was not satisfied that IVF was necessary to alleviate second applicant’s depression or that she lacked the financial capacity to meet the expense arising from the proposed treatment by other means – second application rejected because decision-maker was not satisfied that IVF was necessary to alleviate second applicant’s depression and also because superannuation funds would be used for a purpose that was not permitted under Australian law – requirement of lawful purpose not specified in Superannuation Industry (Supervision) Act 1993 (Cth) or Superannuation Industry (Supervision) Regulations 1994 (Cth) – whether imposition of this requirement involved unlawful discrimination on the basis of second applicant’s disability (infertility) – whether failure to obtain independent legal advice before imposing this requirement involved a failure to make a reasonable adjustment – Disability Discrimination Act 1992 (Cth), ss 5 and 6

WORDS AND PHRASES – “person aggrieved” – “reasonable adjustment”

Feehan v Toomey [2014] VSC 488 (3 October 2014)

Succession law — Testator’s family maintenance — Application under Pt IV of the Administration and Probate Act 1958 — Application by granddaughter of the deceased — Where daughter’s mother and daughter of the deceased predeceased the deceased — Where no substantial relationship shown — No responsibility to provide — MacEwan Shaw v Shaw (2003) 11 VR 95 considered

In the matter of Petrolink Pty Ltd; Smith v Boné [2014] FCA 1024 (22 September 2014)

PRACTICE AND PROCEDURE – interlocutory process – application for summary dismissal on the basis the interlocutory process is an abuse of process – whether the predominant purpose of the interlocutory process was to obtain a collateral advantage or was otherwise improper

PRACTICE AND PROCEDURE – words and phrases – “abuse of process” – relevant principles – application of ss 11(2), 131(1) and 131(2)(k) of the Evidence Act 1995

Australian Super Developments Pty Ltd v David Wellesley Marriner & Ors [2014] VSC 464 (19 September 2014)

TRUSTS AND TRUSTEES – joint venture – sale of joint venture project to one joint venturer – monies provided by joint venture vehicle were lodged as security with electricity supply company – before sale was completed bond monies were released to solicitor – Court of Appeal found that solicitor held bond monies on a ‘solicitor’s trust’ and that bond monies were disbursed by solicitor in breach of trust – Court of Appeal remitted issue of whether first defendant and or companies associated with him were liable for knowingly inducing or immediately procuring breach (or breaches) of trust – level of knowledge required for liability under principle in Eaves v Hickson

DEFENCES AND COUNTERCLAIMS – remitted by the Court of Appeal – common sub-stratum of facts for allegations of unconscionable conduct, misleading and deceptive conduct and estoppel – accounting entries were made to reflect the fact that bond monies lodged as security had been repaid – plaintiffs by counterclaim were unaware that bond monies debt was no longer in existence when sale and assignment took place – whether conduct of defendants by counterclaim was unconscionable – whether first plaintiff by counterclaim was under a ‘special disadvantage’ – whether defendants by counterclaim made representations about the assignment of bond monies debt – pleaded representations not made out – related counterclaim for estoppel also fails.

Perpetual Trustees Victoria Ltd v Cox [2014] NSWCA 328 (18 September 2014)

APPEALS – challenge to primary judge’s findings of fact – whether findings glaringly improbable – whether open to primary judge to determine allegation of forgery on onus
MORTGAGES – forged direction to disburse funds – whether obligation to repay extended to sums disbursed pursuant to forged direction
PRINCIPAL AND AGENT – ratification – whether ratification where no knowledge of forged direction

Legal Services Commissioner v Telehus [2014] VSC 462 (15 September 2014)

LEGAL PRACTITIONERS — Roll of practitioners — Removal of name — Defendant misappropriated trust funds, represented that he held a practising certificate when he did not, failed to lodge tax and GST returns and breached court order that he file tax returns, made false declarations in support of application for renewal of practising certificate — No involvement by Defendant in disciplinary process or hearing to remove name from roll — No suggestion that Defendant had taken steps towards rehabilitation — Defendant not fit and proper person to practise law.

JR Consulting & Drafting Pty Ltd & Anor v Cummings & Ors [2014] NSWSC 1252 (12 September 2014)

CONTRACTS – construction – where parties entered into contract for sale of non-exclusive “interest” in software – nature of “interest” acquired by first plaintiff – whether interest was limited to software which existed at relevant date – whether first defendant owned copyright in software to exclusion of second defendant – whether first plaintiff was limited to licensing software to particular customer – whether first defendant had express or implied obligation to provide first plaintiff with source code and updates for, and modifications and developments to, software – whether initial contract was abandoned by parties.

CONTRACTS – construction – where relevant parties entered into subsequent contract in respect of software – scope of licence granted under contract – whether licence was limited to specified period – whether second plaintiff was permitted to grant licences to new customers after that period – effectiveness of assignment – whether second defendant required to provide updates to second plaintiff to ensure software compatibility with other software.

CONTRACTS – breach – whether parties had breached obligation to deposit source code with escrow agent – whether conditions of agreement for release of software from escrow were satisfied – whether second defendant breached obligations to provide development services, information and assistance – confidentiality – whether second defendant had received and disclosed confidential information – good faith and cooperation – whether there was a breach of obligation of good faith.

CONTRACTS – termination – whether second defendant had properly terminated agreement – whether established that second plaintiff breached contract by non-payment of licence fees – whether second defendant had abandoned rights to termination – whether notice of termination of agreement was effectively served – whether there was a failure by second defendant to comply with dispute resolution clauses – whether termination was invalidated by non-compliance with dispute resolution clauses.

CONTRACTS – existence of contract – whether established that entity was granting licences under previous agreement – where person is director of two associated companies – whether sub-licence was created by decision of common director.

TORTS – tort of conspiracy – harm by unlawful means – where second and third defendants had entered into purchase agreement – where defendants had terminated earlier agreement – whether established that conduct constituted a tort of conspiracy – whether conduct was unlawful – whether established that a purpose of conduct was to harm second plaintiff – whether established that second plaintiff has suffered loss or damage caused by conduct.

TORTS – tort of inducing breach of contract – whether conduct constituted breach of earlier agreement – whether third defendant induced or procured second defendant to engage in conduct – whether third defendant had sufficient knowledge of terms of previous agreement – whether third defendant had requisite intention for second defendant to breach the previous agreement.

TRADE PRACTICES – misleading or deceptive conduct – where representations were made on website registered to company not party to proceedings – whether third defendant engaged in trade or commerce between Australia and another country – whether third defendant engaged in conduct involving the use of telegraphic or telephonic services – whether established that representations were made by third defendant – whether representations were misleading or deceptive or likely to mislead or deceive.

TRADE PRACTICES – unconscionable conduct – whether second and third defendants are corporations engaged in trade or commerce – whether plaintiffs were under a special disadvantage known to second and third defendants – whether second and third defendants unconscientiously took advantage of plaintiffs’ special disadvantage – whether second and third defendants were engaged in conduct in connection with supply or possible supply of goods or services – whether second and third defendants engaged in unconscionable conduct under Australian Consumer Law ss 20 and 21.

INTELLECTUAL PROPERTY – copyright – groundless threats of legal proceedings – whether third defendant made threats in respect of infringement of copyright – whether statements constituted groundless threats of copyright infringement.

WORDS AND PHRASES – “interest”, “customer”.

INTELLECTUAL PROPERTY – copyright – original works in which copyright subsists – whether copyright subsists in each update or new release of software and user documentation – whether first cross-claimant owned copyright in software releases in relevant periods.

INTELLECTUAL PROPERTY – copyright – infringement – whether third cross-defendant infringed copyright in software – whether first, second and fourth cross-defendants had authorised alleged copyright infringement – liability of director of cross-defendants – whether cross-claimants are estopped from bringing an action for infringement of copyright – whether additional damages should be awarded under Copyright Act 1968 (Cth) s 115(4).

TRADE PRACTICES – misleading or deceptive conduct – whether established that alleged representations were made by first, second and third cross-defendants – whether representations were misleading or deceptive or likely to mislead or deceive – whether cross-claimants had relied on alleged representations – whether established that loss and damage suffered by cross-claimants was caused by representations – accessorial liability – application of Australian Consumer Law ss 18 and 29.

EQUITY – breach of confidentiality – whether information in licence key generator is property – whether information is confidential – whether second and third cross-defendants owed an obligation of confidentiality to cross-claimants – whether second and third cross-defendants breached obligation of confidence.

INTELLECTUAL PROPERTY – trade marks – infringement – where third cross-defendant had used phrase on website – whether first cross-claimant has standing to bring claim – whether cross-claimant is entitled to be registered as owner of registered trade mark – whether conduct of cross-defendants constituted trade mark infringement – whether cross-defendants are liable for additional damages.

Curtis v Harden Shire Council [2014] NSWCA 314 (10 September 2014)

TORTS – negligence – duty of care – breach of duty – whether Civil Liability Act 2002 (NSW), s 43A applied – whether placing certain traffic control signs and omitting other signage involved the exercise of a “special statutory power” – prohibition on any person installing prescribed traffic control devices combined with requirement for statutory authority to undertake such activity

WORDS AND PHRASES – “special statutory power” – Civil Liability Act 2002 (NSW), s 43A

TORTS – negligence – duty of care – breach of duty – standard of liability – Civil Liability Act 2002 (NSW), s 43A – motor vehicle accident – whether omission of signs on road was an act no authority could properly consider a reasonable exercise of its power – expert evidence – evidence of council officer – omission of “slippery road” sign despite direction in Traffic Control Plan – common sense

TORTS – negligence – causation – onus – balance of probabilities – whether primary judge erred in comparison of probabilities with possibilities

TORTS – negligence – causation – motor vehicle accident – whether absence of signage caused driver to lose control on first resurfaced section – balance of probabilities – no direct proof – whether circumstances give rise to a reasonable and definite inference – consideration of state of the road, circumstances of accident, expert evidence and competing hypotheses

Williams v Katis [2014] VSC 405 (29 August 2014)

DEFAMATION – Action for defamation by one candidate against opponent in municipal election – Four separate publications – News broadcast – News interview – Court document – Provision of court document to journalist – Statement to lawyer – Meaning of defamatory imputations – Defences to defamation – Justification – Fair comment – Honest opinion – Malice – Defamation Act (Vic) 2005, ss 25, 30, 31.

Boral Resources (NSW) Pty Ltd v Gangi [2014] NSWCA 287 (28 August 2014)

COSTS – challenge to special order that successful plaintiff be paid only a percentage of his costs – not unreasonable for defendant to refuse Calderbank offer – no error in rejecting submission that defence was improperly maintained – power to reduce costs even where a plaintiff obtained a substantial verdict in his favour – costs discretion re-exercised in light of other errors disclosed in reasons

TORTS – negligence – owner and operator of concrete batching plant failed to inspect and maintain all structural elements – plant collapsed on truck driver – challenge to findings of liability and breach based on impermissible use of hindsight – challenge to drawing of inference from owner’s failure to adduce evidence of results of forensic investigation into collapse – primary judge expressly found owner liable without needing to rely on inferences – damages – factual challenges to heads of economic and non-economic loss

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.