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Benchmark
A daily Bulletin listing our choice of Decisions of Superior Courts of Australia. |
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Banking
Friday, 19 September 2014 |
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| Executive Summary (One Minute Read) |
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| Mooney v MS Magdalene Schiffahrtsgesellschaft mbH (NSWSC) - negligence - nuisance - Marine Pollution Act 1987 (NSW) - Court declined to resolve issues regarding applicability of an international convention as separate questions |
| Bendigo and Adelaide Bank v Stamatis (NSWSC) - unconscionable conduct - son forged immigrant parents' signature - parents estopped from denying loan - unconscionable to enforce loan - special disadvantage |
| Mainieri v Cirillo (VSCA) - equity - mother partially paid son's debt secured over son's property - parol evidence rule not applicable - son's property subject to equitable lien in mother's favour |
| Western Australian Land Authority v Meadowcroft (WASC) - sale of land - Land Authority's right to repurchase where no development within 30 months - specific performance granted |
| Summaries With Link (Five Minute Read) |
Mooney v MS Magdalene Schiffahrtsgesellschaft mbH [2014] NSWSC 1277
Supreme Court of New South Wales
Rein J
Admiralty law - negligence - nuisance - applicability of international conventions - a ship leaked oil into the Hunter River - damage to oyster farms - claim under s 51 Marine Pollution Act 1987 (NSW) for breach of s8 of that Act- claims in negligence and nuisance - claim under Art3(1) International Convention on Civil Liability for Bunker Oil Pollution, allegedly having force under s11 Protection of the Sea (Civil Liability for Bunker Oil Pollution Damage) Act 2008 (Cth) - direct claim against ship's insurer under Art7(10) of International Convention, on basis insurer provided financial security for ship owner's liability for pollution - owner and insurer asked Court to resolve issues under International Convention as separate questions - held: answering separate questions favourably to owner and insurer would not dispose of the proceedings - limitation issues may depend on further evidence - undesirable to determine limitation questions as separate questions - undesirable to determine applicability of International Convention without all evidence - Court not persuaded separate questions would be in the interests of justice or would save much cost or time.
Mooney |
Bendigo and Adelaide Bank v Stamatis [2014] NSWSC 1233
Supreme Court of New South Wales
R S Hulme AJ
Unconscionable conduct - defendants born in Greece, had limited education, limited understanding of English - defendants' son borrowed money on the security of defendants' home - son forged defendants' signatures - Bank sued defendants for breach of loan agreement and mortgage - held: son had no authority to sign the defendants' names - a forged signature cannot be ratified - however, defendants had continued to make repayments after son arrested for supply of large commercial quantity of drugs, and had delayed denying liability to Bank's detriment - defendants were therefore estopped from denying they had signed and were bound by the loan agreement - nonetheless, loan agreement and mortgage should be set aside - defendants were at a special disadvantage - Bank should have been aware there was a substantial risk that son would take advantage of his parents - unconscionable for the Bank to enforce loan agreement - loan agreement may also have been unjust under s9 Contracts Review Act 1980 (NSW).
Bendigo and Adelaide Bank |
Mainieri v Cirillo [2014] VSCA 227
Court of Appeal of Victoria
Nettle AP, Hansen & Santamaria JJA
Equity - husband and wife had pressing debt - husband's mother sold her home and applied proceeds to reducing the debt - written document between the parties described payment as a gift - husband and wife said the mother could live with them indefinitely - relationship broke down and cohabitation became impossible - trial judge held mother had benefit of constructive trust over the husband and wife's home - held: primary judge correct to rule evidence of prior oral communications admissible - evidence of events before execution of written document showed parties did not intend document to contain all the terms of their agreement - parol evidence rule therefore did not apply - although the written document used the word gift, evidence showed the parties did not intend the payment to be a gift - declaration of constructive trust was excessive - mother's equity best satisfied by an equitable lien or charge to secure repayment with interest.
Mainieri |
Western Australian Land Authority v Meadowcroft [2014] WASC 333
Supreme Court of Western Australia
Heenan J
Contract - Land Authority responsible for release and timely development of Port Hedland land - lot sold under contract of sale containing condition that, if purchaser failed to construct a home within 30 months, Land Authority could repurchase land for original price less costs of repurchase - no building on land within 30 months - Land Authority exercised option to repurchase and sought specific performance - held: notice to repurchase had been validly served - alleged implied term that the option to repurchase be made within a reasonable time was inconsistent with the express terms of the contract - in any event, no basis to find Land Authority had exercised repurchase option outside a reasonable time - specific performance of right of repurchase ordered.
Western Australian Land Authority |
From: ‘Spring Day’
by Amy Lowell
Midday and Afternoon
Swirl of crowded streets. Shock and recoil of traffic. The stock-still brick façade of an old church, against which the waves of people lurch and withdraw. Flare of sunshine down side-streets. Eddies of light in the windows of chemists’ shops, with their blue, gold, purple jars, darting colours far into the crowd. Loud bangs and tremors, murmurings out of high windows, whirring of machine belts, blurring of horses and motors. A quick spin and shudder of brakes on an electric car, and the jar of a church-bell knocking against the metal blue of the sky. I am a piece of the town, a bit of blown dust, thrust along with the crowd. Proud to feel the pavement under me, reeling with feet. Feet tripping, skipping, lagging, dragging, plodding doggedly, or springing up and advancing on firm elastic insteps. A boy is selling papers, I smell them clean and new from the press. They are fresh like the air, and pungent as tulips and narcissus.
The blue sky pales to lemon, and great tongues of gold blind the shop-windows, putting out their contents in a flood of flame.
Amy Lowell |
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