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Tuesday, 10 February 2015

Executive Summary (One Minute Read)
Tarrant v Australian Securities and Investments Commission (FCAFC) - administrative law - imposition of 7-year ban on providing financial services - review refused - appeal dismissed (B G)
Haider v Hawaiian Punch Pty Ltd (FCA) - human rights - employer liable for employee’s contravention of Racial Discrimination Act 1975 (Cth)  (I G)
Nominal Defendant v Mokbel (NSWCA) - motor vehicle accident - evidence - Nominal Defendant not liable - appeal allowed (I)
Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd (NSWCA) - supply and purchase agreement - no binding contract - appeal allowed in part (I B)
Glencore Queensland Ltd v Ventyx Pty Ltd (QSC) - contract - licence agreement and support agreement - calculation of incremental fees - declaration (I B)
Tim Gordon Property Group Pty Ltd v Helensvale Property Development Pty Ltd (QSC) - pleadings - application to amend statement of claim to correctly name plaintiff refused (I C)
Tasmanian Perpetual Trustees Ltd v Attorney-General (TASSC) - Wills - trusts - cy-prés scheme - limited variation to purposes specified in trust approved (B)
Summaries With Link (Five Minute Read)
Tarrant v Australian Securities and Investments Commission [2015] FCAFC 8
Full Court of the Federal Court of Australia
Rares, Yates & Griffiths JJ
Administrative law - appellant appealed from AAT’s dismissal of application for review of 7-year ban from providing financial services imposed by ASIC - s1(2) Australian Securities and Investments Commission Act 2001 (Cth) - ss50AAA, 920A, 945A, 947B, 947C, 1041E & 1041H Corporations Act 2001 (Cth) - test for determination of sanction - Briginshaw standard - procedural unfairness - apprehended bias - held: grounds of appeal against AAT failed - ASIC’s objections to appeal on basis of incompetency upheld in relation to questions of law - appeal dismissed.
Tarrant (B G)
Haider v Hawaiian Punch Pty Ltd [2015] FCA 37
Federal Court of Australia
Mansfield J
Human rights - racial discrimination - applicant alleged he was racially abused by respondent’s employee in breach of ss9, 13 & 18C Racial Discrimination Act 1975 (Cth) - matter brought before Human Rights Commission - matter terminated on basis mediation of complaint to Commission not going to be successful - applicant sought compensation for losses incurred due to emotional stress and apology from respondent - held: Court satisfied as to jurisdictional foundation for claim - contravening conduct proven by applicant’s evidence and confirmatory material including film - respondent vicariously liable under s18E for unlawful discrimination done by an employee - declaration - compensatory damages assessed at $9000.
Haider (I G)
Nominal Defendant v Mokbel [2015] NSWCA 3
Court of Appeal of New South Wales
Basten & Ward JJA; Adamson J
Motor vehicle accident - respondent injured when lost control of car and collided with street pole - respondent sued Nominal Defendant on basis there was unidentified vehicle and that negligent driving of vehicle had caused him to lose control of car - trial judge found in favour of respondent and assessed contributory negligence at 30% - Nominal Defendant challenged finding on liability - both parties challenged decision on contributory negligence - objective evidence - descriptive evidence - held: Court should not have been satisfied an unidentified vehicle cut across respondent’s vehicle without warning, forcing him to take evasive action - appeal on liability upheld - evidence did not establish negligence on part of any other driver so no question of contributory negligence arose - cross-appeal dismissed.
Nominal Defendant (I)
Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2015] NSWCA 1
Court of Appeal of New South Wales
Macfarlan & Gleeson JJA; Sackville AJA
Contract - parties entered supply and purchase agreement - trial judge found parties reached consensus on price and entered binding contract for term of four years - appellant claimed parties never reached final agreement on price and thus binding four year contract never came into existence - appellant accepted contracts for first two years of four period were concluded admissions - held: dealings between parties could not be construed as agreement that overall price for four years would be fixed sum subject to term requiring negotiation for review of royalty component - parties never reached final agreement on essential term of alleged four year contract, namely price to be paid - no binding and concluded four year contract - appeal allowed in part.
Mushroom Composters Pty Ltd (I B)
Glencore Queensland Ltd v Ventyx Pty Ltd [2015] QSC 14
Supreme Court of Queensland
P McMurdo J
Contract - parties disputed interpretation of two contracts concerning use of computer software and provision of services relating to use of the software - licence agreement and support agreement - dispute concerned calculation of incremental licence fee and incremental support fee - fees calculated according to number of employees provided in employee report - purpose of quantifying fees by reference to number of employees was to provide a level of remuneration to respondent according to extent of use of and support for its software - applicant omitted to include certain employees in employee count - respondent contended employee count inaccurate - applicant sought declaratory relief - construction of contract - held: applicant entitled to declaration that, upon proper construction of agreements, employees should not be added to employee count or taken into account in employee report under clauses of agreements.
Glencore Queensland Ltd (I B)
Tim Gordon Property Group Pty Ltd v Helensvale Property Development Pty Ltd [2015] QSC 19
Supreme Court of Queensland
Douglas J
Pleadings - plaintiff sought to file and serve amended statement of claim - plaintiff sought to correctly name plaintiff pursuant to r377 Uniform Civil Procedure Rules 1999 (Qld) - rr69& 70 - held: application not simply question of misnomer of plaintiff - plaintiff literally did not exist - effect of application was to include it as party pursuant to r69 - where there was application to include a new party, no reason to exclude requirement to support such application by an affidavit pursuant to r70 - no affidavit provided - application refused.
Tim Gordon Property Group Pty Ltd (I C)
Tasmanian Perpetual Trustees Ltd v Attorney-General [2015] TASSC 1
Supreme Court of Tasmania
Wood J
Wills - trusts - executors of testatrix’s estate sought pursuant to s6 Variation of Trusts Act 1994 (Tas) that trust created by Will and regarded as charitable trust be varied - applicant contended trust’s original purposes had become impracticable and impossible to carry out - cy-prés scheme - charitable purpose - proposed scheme and spirit of the gift - held: Court satisfied that a limited variation to purposes specified in trust should be approved.
Tasmanian Perpetual Trustees Ltd (B)