| Gooley
v Motasea Pty Ltd (NSWCA) - corporations – onus to show proof
of membership of private company not discharged – appeal dismissed |
| Agripower
Barraba Pty Ltd v Blomfield (NSWCA) – real property –
fixtures - ownership and entitlement to possession of items on land – appeal
allowed in part |
| McCarthy
v National Australia Bank Ltd (NSWCA) – possession –
default judgment – adjournment and interim stay granted |
| Sharkey
v Mayahi-Nissi (NSWSC) – injunction – property dispute –
party restrained from leaving country and to deliver up passports |
| Choice
Planning Pty Ltd v Mider @ Franklin Street Pty Ltd (VSC)
– freezing orders – claim for loan debt and profit share - transfer of assets –
freezing orders granted |
| Queensland
Bulk Handling Pty Ltd v Peabody (Wilkie Creek) Pty Ltd (QSC)
– contract – agreement for terms of use of facility – parties bound by option
term |
| QUBE
Logistics (Vic) Pty Ltd v United Equipment Pty Ltd (WASC)
– corporations – statutory demand – demand set aside |
| Summaries With Link (Five Minute Read) |
Gooley v Motasea Pty Ltd [2015] NSWCA 31
Court
of Appeal of New South Wales
Gleeson
& Leeming JJA; Bergin CJ in Eq
Corporations
- appellant sought declarations as to membership of company - common ground share
register lost and that only if appellant’s name entered on company’s share register
was she a member - appellant relied on ASIC return lodged by father which stated
appellant had become shareholder - father stated at trial return completed
erroneously - appellant failed to persuade primary judge that share register
had been in existence and her name entered in it - primary judge concluded
appellant did not demonstrate entitlement to declaration that she was member of
company - ss9, 231, 319, 352 Corporations
Act 2001 (Cth) - inferential reasoning - held: given conflicting
recollections, appellant’s imprecise evidence, and improbabilities of entry in
share register having been made, primary judge correct to hold appellant did
not discharge onus of proof borne - appeal dismissed.
Gooley
|
Agripower Barraba Pty Ltd v
Blomfield
[2015] NSWCA 30
Court
of Appeal of New South Wales
Bathurst
CJ, Beazley P & Sackville AJA
Real
property - fixtures - energy company sought declaration it was true owner of
plant and equipment on land and orders to permit removal of items - occupiers
of property agreed if disputed items were not fixtures they would permit their
removal from property – appellant challenged primary judge’s finding disputed
items were fixtures – quicquid plantatur
solo solo cedit - intention of parties – degree of annexation - held:
certain disputed items should not be regarded as fixtures – appeal allowed in
part – declaration made that appellant was owner of disputed items and entitled
to immediate possession thereof.
Agripower
Barraba Pty Ltd
|
McCarthy v National
Australia Bank Ltd
[2015] NSWCA 32
Court
of Appeal of New South Wales
Basten
JA
Possession
– adjournment – interim stay - bank obtained default judgment for possession -
applicant sought to have default judgment set aside and to enter defence – bank
was to seek eviction of applicant from his home absent a stay of judgment –
held: application adjourned with interim stay to give applicant opportunity to
put on material to indicate how defences might be supported and to seek
additional material by issuing subpoena to bank – purpose of orders to allow
Court and parties to identify substantial issues to be resolved and to ensure
future prosecution of matter expedited.
McCarthy
|
Sharkey v Mayahi-Nissi [2015] NSWSC 104
Supreme
Court of New South Wales
McDougall
J
Injunction
- first plaintiff and defendant formerly in de facto relationship – dispute
concerned entitlement to ownership in property – defendant sought order that
first plaintiff be restrained from leaving the country – whether there was an
equitable debt or demand - whether respondent to application was likely to
leave country without giving bail or security – writ of ne exeat colonia – held: Court satisfied defendant had good
arguable case as to equitable cause of action –first plaintiff had engaged in
deceptive conduct and intended to leave country once evidence completed – first
plaintiff restrained from leaving country and to deliver up passports.
Sharkey
|
Choice Planning Pty Ltd v
Mider @ Franklin Street Pty Ltd
[2015] VSC 59
Supreme
Court of Victoria
Hargrave
J
Freezing
orders - plaintiffs lent money to first defendant for building development
projects - plaintiffs claimed remaining debt and profit share in amount of $8
million - plaintiffs contended defendants moved assets to frustrate Court’s
processes - plaintiffs sought freezing orders under rr37A.05(4) & (5) Supreme Court (General Civil Procedure)
Rules 2005 (Vic) – defendants acknowledged plaintiffs had good arguable
case including in respect of claimed under s172 Property Law Act 1958 (VSC) – defendants opposed application on
discretionary grounds - held: Court not prepared to refuse relief on basis of
delay or that proffered undertaking insufficient - given lack of information
and defendants’ conduct in transferring assets, freezing orders extended to
full amount of prospective judgment debt.
Choice
Planning Pty Ltd
|
Queensland Bulk Handling Pty
Ltd v Peabody (Wilkie Creek) Pty Ltd
[2015] QSC 37
Supreme
Court of Queensland
P
McMurdo J
Contract
– plaintiff operated coal export terminal – defendant was coal mining company
which used facility – parties made written agreement for terms and conditions
of use which contained provision for possible further term – plaintiff claimed
parties were contractually bound for further term – defendant denied parties
bound – proper interpretation of option term
– obtain agreement in principle –
parties’ intention to be bound - objective construction of contract – held: plaintiff’s case upheld – parties bound to enter
agreement for option term on substantially same terms as agreement –
declaration made.
Queensland
Bulk Handling Pty Ltd
|
QUBE Logistics (Vic) Pty Ltd
v United Equipment Pty Ltd
[2015] WASC 70
Supreme
Court of Western Australia
Master
Sanderson
Corporations
– plaintiff lessee and defendant lessor were parties to rental agreements for
forklifts - term of rental agreements that defendant would carry out all maintenance
and repairs on forklifts - plaintiff sought to set aside statutory demand
served on it by defendant in respect of invoices rendered for rental –
plaintiff had decided forklifts were not fit for the purpose they were hired
and were unsafe or potentially unsafe – plaintiff claimed it was unable to use
the forklift and quantified its loss as more than amount of statutory demand -
held: plaintiff had raised off-setting claim greater than amount of statutory demand
– demand set aside.
QUBE
Logistics (Vic) Pty Ltd
|
