| Coles
Supermarkets Australia Pty Ltd v Fardous (NSWCA) - negligence - slip
and fall at supermarket - erroneous assessment of damages for economic loss -
appeal allowed (I) |
| Fortress
Credit Corporation (Australia) II Pty Ltd v Fletcher & Barnet (NSWCA)
- corporations - standing - appeal against approval of entry into funding agreement allowed (I B) |
| Workplace
Safety Australia v Simple OHS Solutions Pty Ltd (NSWCA)
- trade practices - contract - equity - franchise agreement entered in
contravention of Competition and Consumer
Act 2010 - damages (I B) |
| Hou
v Westpac Banking Corporation Ltd (VSCA) - mortgage recovery - summary judgment in
favour of bank - leave to appeal refused (I B) |
| Douglas
v Simons Builders Pty Ltd (VSC) - contract for sale of land - vendor
entitled to summary judgment and possession of land (B C) |
| Daniel
v Van Zwol (SASC) - succession - family provision award -
discretion miscarried – award adjusted (B) |
| Hamcor
Pty Ltd v State of Qld (No 2) (QSC) - costs - unreasonable rejection of
Calderbank offer - indemnity costs awarded (I B C) |
| Summaries With Link (Five Minute Read) |
Coles Supermarkets Australia
Pty Ltd v Fardous
[2015] NSWCA 82
Court
of Appeal of New South Wales
Macfarlan
& Emmett JJA; Simpson J
Negligence
- occupier’s liability - respondent injured in slip and fall at appellant’s
supermarket - primary judge found in respondent’s favour against appellant on
liability and awarded damages - appellant challenged awards for past economic
loss, future economic loss and future out-of-pocket expenses - whether respondent
had any earning capacity at time of accident taking into account earlier work
accident - s13 Civil Liability Act 2002
(NSW) - held: primary judge erred in assessment of damages for economic loss - respondent
had significant prospect assessed at 65% of obtaining employment of 20 hours
per week at rate of $20 per hour - primary judge’s award of damages for past
and future economic loss reduced to reflect percentage - no error in assessment
of damages for future out-of-pocket expenses - appeal allowed.
Coles
(I)
|
Fortress Credit Corporation
(Australia) II Pty Ltd v Fletcher & Barnet [2015] NSWCA 85
Court
of Appeal of New South Wales
Bathurst
CJ; Beazley, Macfarlan, Meagher & Barrett JJA
Corporations
- standing - second respondent company (OA) and its ultimate holding company
(OL) commenced separate proceedings against Fortress - OA and OL alleged
certain transactions entered into by Fortress were voidable - liquidators of OA
and OL sought to enter into funding agreement that provided for OA to fund OL’s
proceedings - primary judge concluded Fortress had no relevant right to be
heard on application and approved entry into funding agreement - held: Fortress
was person aggrieved or sufficiently interested in proceedings because it had
interest in any debt due by OA to OL, and funding agreement had potential to
diminish value of OL’s debt to Fortress - primary judge failed to analyse
extent to which OA and OL could succeed in claims and potential practical
benefit to OA in entering into agreement - primary judge’s discretion
miscarried in approving entry into funding agreement - appeal allowed - matter
remitted.
Fortress
(I B)
|
Workplace Safety Australia v
Simple OHS Solutions Pty Ltd
[2015] NSWCA 84
Court
of Appeal of New South Wales
Bathurst
CJ; Basten & Emmett JJA
Trade
practices - contract - equity - estoppel - distribution agreement between Workplace
Safety Australia Pty Ltd (WSA), Simply OHS Solutions Pty Ltd (Simple) and guarantor
- under agreement Simple agreed to distribute WSA’s online subscription
packages - WSA purported to terminate agreement for alleged breaches by Simple
- WSA sued Simple and guarantor for money owing under agreement and damages for
loss of further profits - Simple cross-claimed for damages for wrongful
repudiation and on basis WSA contravened s51AD Competition and Consumer Act 2010 (Cth) in entering agreement - common
ground that Trade Practices (Industry
Codes – Franchising) Regulations 1998 (Cth) contravened if agreement was franchising
agreement - held: primary judge did not err in concluding agreement was a
franchise agreement within meaning of Code - WSA not entitled to terminate
agreement on basis of Simple’s failure to pay instalment or meet sales target -
no error in assessment of damages under s82 - appeal dismissed.
Workplace
(I B)
|
Hou v Westpac Banking
Corporation Ltd
[2015] VSCA 57
Court
of Appeal of Victoria
Whelan
& Beach JJA
Summary
judgment - mortgage - bank issued proceeding against applicant and proceeding against
applicant and partner - Associate Justice gave judgment in favour of bank on
summary judgment applications - Chief Justice dismissed appeals - applicants
sought extensions of time to seek leave to appeal, stay of orders made against
them and leave to appeal from orders made by Chief Justice - r77.06.9 Supreme Court (General Civil Procedure)
Rules 2005 (Vic) - held: no basis for conclusion that applicants real
prospect of success - leave to appeal on each application refused - even if
Court had granted leave to appeal, Court would have dismissed each appeal.
Hou
(I B)
|
Douglas v Simons Builders Pty
Ltd
[2015] VSC 118
Supreme
Court of Victoria
Derham
AsJ
Summary
judgment - contract for sale of land - first defendant was vendor and plaintiff
was purchaser under contract for sale of land occupied by plaintiff under
licence agreement - defendants sought to dismiss plaintiff’s proceeding and summary
judgment on counterclaim - whether delivery of promissory note by purchaser for
balance of deposit was payment in accordance with contract - held: delivery of promissory
note not effective as payment of the balance of deposit under contract - notice
of default and rescission given by vendor had operated to terminate contract.-
in any event vendor entitled to possession because licence agreement had been
validly revoked – vendor entitled to relief sought.
Douglas
(B C)
|
Daniel v Van Zwol [2015] SASCFC 38
Full
Court of the Supreme Court of South Australia
Kourakis,
Stanley & Parker JJ
Succession
- family provision - testatrix made Will in 2009 appointing appellant daughter
as executrix - Will left residue of estate to appellant, her brother and their
nephew - Will made no provision for appellant’s remaining brother - appellant’s
brother claimed testatrix failed to make adequate provision for his proper
maintenance - Master allowed claim - appellant appealed - held: factual error
by Master not material - no error in finding that evidence established testatrix’s
reason for excluding brother from provision was incorrect - Master’s discretion
miscarried to extent that award resulted in brother receiving greater share
than others whose claim on bounty was the same – award adjusted.
Daniel
(B)
|
Hamcor Pty Ltd v State of Qld
(No 2)
[2015] QSC 69
Supreme
Court of Queensland
Dalton
J
Indemnity
costs - Calderbank offer - second and third defendants were plaintiffs’
insurance brokers - insurance brokers wholly successful against plaintiffs at
trial - insurance brokers sought costs of proceedings - uncontroversial that
insurance brokers should have costs - whether part of costs should be paid on
an indemnity basis - held: plaintiffs had no worthwhile prospects of success -
plaintiffs’ refusal to accept Calderbank offer was unreasonable - insurance
brokers to have costs on indemnity basis from date of expiry of Calderbank
letter.
Hamcor
(I B C)
|
| CRIMINAL |
| Executive Summary |
| Karam v The Queen (VSCA)
- conspiracy to possess unlawfully imported border controlled drug in
commercial quantity - leave to appeal against conviction and sentence refused |
| Bauer (a Pseudonym) v The Queen (VSCA)
- criminal law - sexual offences -overloaded indictment - cross-admissibility
of evidence as tendency evidence -convictions on trial indictment set aside -
appeal against sentences allowed |
| Summaries With Link |
Karam v The Queen [2015] VSCA 50
Court
of Appeal of Victoria
Weinberg,
Priest & Beach JJA
Criminal
law – applicant convicted of conspiring with co-accused to possess unlawfully
imported border controlled drug in commercial quantity - applicant sentenced to
19 years imprisonment with non-parole period of 15 years - applicant sought
leave to appeal against both his conviction and sentence - hearsay - whether certain
evidence should have been excluded under s137 Evidence Act 2008 (Vic) - elements of conspiracy – whether sentence
manifestly excessive - held: grounds of appeal with respect to conviction
failed - Court not persuaded any error made by trial judge in sentencing
applicant - even if error shown, Court did not think any different sentence
should be passed - applications refused.
Karam |
Bauer (a Pseudonym) v The
Queen
[2015] VSCA 55
Court
of Appeal of Victoria
Maxwell
P, Weinberg & Priest JJA
Criminal
law - applicant found guilty of sexual offences - applicant sought to appeal
against conviction on first indictment (trial indictment) - applicant pleaded
guilty to two charges of indecent assault contained in second indictment (plea
indictment) - applicant sought leave to appeal against conviction in trial
indictment - applicant sought leave to appeal against sentences - whether trial
judge erred in refusing permanent stay of charges - whether certain evidence properly
left as tendency evidence - cross-admissibility of evidence as tendency
evidence - held: indictment overloaded by inclusion of many charges relating to
five separate complainants resulting in unfairness - supposed tendency evidence
amounted to no more than evidence of mere propensity, was without significant
probative value, and should have been excluded - questions of cross-admissibility
and severance to be decided by trial judge on retrial - convictions set aside on
certain charges - leave to appeal against sentences imposed on plea indictment
allowed - total effective sentence 8 months’ imprisonment.
Bauer |
A Gift
by Leonora Speyer
I Woke: —
Night, lingering, poured upon the world
Of drowsy hill and wood and lake
Her moon-song,
And the breeze accompanied with hushed fingers
On the birches.
Gently the dawn held out to me
A golden handful of bird’s-notes.
LeonoraSpeyer
|
