Daily Banking: Thursday, 9 July 2015 View in browser
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AR Conolly Company Lawyers.
A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Daily Banking

Executive Summary (One Minute Read)
Carey v Laikin (SCC) - contempt - Mareva injunction - return of money to client - lawyer in contempt - erroneous permission to relitigate initial finding - appeal dismissed
Michael v RJ Chalmers & Co;; Edwards v Causbrook & Associates;; Smidmore v RJ Chalmers & Co (NSWSC) - discovery - misleading and deceptive conduct - discovery of documents ordered
Beck v Colonial Staff Super Pty Ltd (NSWSC) - superannuation - estoppel - amendment of trust deed to remove benefit - plaintiff entitled to consideration of benefits under clause
Bedshed Franchising Pty Ltd v Battersby (WASC) - interlocutory injunction - alleged breaches of franchise agreement - prima facie case - injunction granted
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 3] (WASC) - pleadings - contract or legally binding promise asserted in statement of claim not sustainable - paragraphs struck out
Coffey LPM Pty Ltd v The Contaminated Sites Committee (WASC) - costs - fourth defendant successful party in opposing appeal - appellant to pay fourth defendant’s costs not including costs in relation to misconceived notice of contention
Ruhe v Patel (ACTSC) - bankruptcy - extension of caveat over property granted to trustee of bankrupt’s estate
Summaries With Link (Five Minute Read)
Carey v Laikin 2015 SCC 17
Supreme Court of Canada
McLachlin CJ; Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ
Contempt - respondent brought contempt proceedings against appellant lawyer alleging he breached terms of Mareva injunction by returning money to client for whom he was holding it in trust - injunction issued in course of litigation between respondent, client and related parties and enjoined any person with knowledge of order from disposing or dealing with assets of various parties, including client’s - motions judge found lawyer in contempt - lawyer moved to reopen contempt hearing and filed new evidence - motions judge set aside previous finding of contempt - Court of Appeal allowed appeal and restored initial contempt finding - held: lawyer was in contempt - Court of Appeal correctly held motions judge erred in exercising discretion to permit lawyer to relitigate initial contempt finding, and erred in setting finding aside - appeal dismissed.
Carey
Michael v RJ Chalmers & Co;; Edwards v Causbrook & Associates;; Smidmore v RJ Chalmers & Co [2015] NSWSC 879
Supreme Court of New South Wales
Hidden J
Discovery - misleading and deceptive conduct - plaintiffs were partners of law firm - plaintiffs together with wives and superannuation funds sued accountants for  losses said to have been sustained by them by entering into recommended investments - plaintiffs sought order that defendants give discovery of certain categories of documents - Pt21 Uniform Civil Procedure Rules 2005 - relevance - held: second defendant ordered to provide discovery of documents in categories sought relating to investments referred to in amended statement of claim.
Chalmers
Beck v Colonial Staff Super Pty Ltd [2015] NSWSC 723
Supreme Court of New South Wales
Slattery J
Superannuation - plaintiff was former employee of bank and member of superannuation fund to which he contributed - trustee of fund amended trust deed of fund to remove existing fund rule (clause A11.3) which provided for certain discretionary benefits - plaintiff contended trustee’s exercise of power to amend breached its general law duty to act in best interests of fund’s  beneficiaries and contravened statutory duties under s52(2)(c) Superannuation Industry Supervision Act (Cth) 1993 and Superannuation Industry (Supervision) Regulations 1994 - estoppel - unconscionable conduct - held: plaintiff successful in challenge to validity of decision to amend rules of fund to remove clause - plaintiff entitled to consideration of possible benefits under clause - plaintiff also successful in estoppel case - plaintiff entitled to relief on basis he was entitled to pension at age 55 subject to adjustments and other relief considerations - parties to bring in short minutes of order - proceedings adjourned.
Beck
Bedshed Franchising Pty Ltd v Battersby [2015] WASC 224
Supreme Court of Western Australia
Beech J
Interlocutory injunction - defendants were parties as guarantors to franchise agreements entered between plaintiff as franchisor and companies associated with defendants as franchisees - plaintiffs claimed defendants were in breach of clause of agreement because they each had an interest in a competing business - plaintiff sought interlocutory injunction restraining defendants from breaching clause - held: - balance of convenience in favour of granting injunction - plaintiff established prima facie case against first and third defendants but not second defendant - injunctions granted against first and third defendants.
Bedshed
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 3] [2015] WASC 231
Supreme Court of Western Australia
Le Miere J
Pleadings - claim to entitlements in relation to mining tenements acquired by first defendant or its subsidiaries - first and second defendants sought to strike out parts of substituted statement of claim and reply - held: contract or legally binding promise asserted by plaintiff in paragraph of substituted statement of claim, which was foundation for the pleas in two subsequent paragraphs, was not sustainable - paragraphs of statement of claim struck out.
Wright
Coffey LPM Pty Ltd v The Contaminated Sites Committee [2014] WASC 504
Supreme Court of Western Australia
Chaney J
Costs - appeal dismissed in proceedings - fourth respondent had appeared in opposition to appeal at hearing of matter and relied substantially on submissions made by intervener - fourth respondent made submissions in relation to contentions in 'Notice of Contention' - fourth respondent sought an order for payment of its costs on basis it was a successful party to appeal for purposes of O 66 r1 Rules of the Supreme Court 1971 (WA) - held: fourth respondent was successful party in opposing appeal -  appellant ordered to pay its costs not including costs in relation to notice of contention, which was misconceived.
Coffey
Ruhe v Patel [2015] ACTSC 169
Supreme Court of the Australian Capital Territory
Refshauge J
Bankruptcy - caveat - applicant appointed trustee of bankrupt’s estate - bankrupt lived at house - Crown lease for property was granted to bankrupt’s respondent wife - applicant sought to extend caveat over property - held: Court had concerns about nature of interest claimed as caveatable interest - Court extended caveat so that it would not lapse and applicant could provide sufficient information to satisfy Court of interest in property - it was possible trustee’s interests would be better protected by an injunction requiring wife to retain proceeds of sale from dispersal - caveat extended.
Ruhe