| Fortress
Credit Corporation (Australia) II Pty Ltd v Fletcher (HCA)
- corporations - insolvency - voidable transactions - s588FF(3) Corporations Act 2001 (Cth) allowed
making of shelf orders - appeal dismissed (B) |
| Di
Cioccio v Official Trustee in Bankruptcy (as Trustee of the Bankrupt Estate of
Di Cioccio) (FCAFC) - bankruptcy - shares were after-acquired property which vested in Official
Trustee (B) |
| Khouzame v All
Seasons Air Pty Ltd (FCAFC) – bankruptcy – adjudication certificate not accompanied by
affidavit – judgment debt unenforceable – bankruptcy notice set aside (I B C) |
| Sienkiewicz
(As Trustee for the Sienkiewicz Superannuation Fund) v Salisbury Group Pty Ltd
(in Liq) (No 2) (FCA) - insurance - financial services errors
and omissions policy - financial adviser’s cross-claim against insurers
dismissed (I B) |
| O’Farrell v Allianz
Australia Insurance Ltd (NSWCA) – judicial review – motor vehicle insurance – insurer failed to
comply with obligations concerning duty of disclosure – decision of District
Court set aside (I) |
| Valuer-General v
Fivex Pty Ltd (NSWCA) – valuation of land – unimproved value of fee simple – assumptions
in s6A(2) Valuation of Land Act 1916
(NSW) – appeal allowed (B C G) |
| Giedo
van der Garde BV v Sauber Motorsport AG (VSC) - arbitration - no
grounds for refusal to enforce foreign arbitral award (I B) |
| Pope v Madsen (QCA) - equity - no
maintainable cause of action by child against parent for breach of fiduciary
duty arising from abuse – statement of claim dismissed (I) |
| Goldus
Pty Ltd v Australian Mining Pty Ltd (SASC) - joint venture -
joint venturer not required to give notice of proposed sale of shares (I B C) |
| Marshall
v Tasmanian Perpetual Trustees Ltd (TASFC) – Wills – succession –
proper construction of Will – appeal dismissed (B) |
| Treloar
v State of Tasmania (TASFC) –
workers compensation - suitably qualified
medical practitioners for medical panel do not need to be qualified for
particular medical question at issue (I G) |
| Lewis Blyth &
Hooper (a firm) v Smith (WASCA) – solicitors’ costs - cancellation of costs agreements – failure
to provide estimate of costs – one of two appeals allowed (I) |
| Avopiling
(WA) Pty Ltd v Central Systems Pty Ltd (WASC) - contract -
enforceable agreement to settle dispute (B C) |
| Summaries With Link (Five Minute Read) |
Fortress
Credit Corporation (Australia) II Pty Limited v Fletcher [2015] HCA 10
High Court of Australia
French CJ; Hayne, Kiefel, Gageler &
Keane JJ
Corporations - insolvency - voidable
transactions - liquidators obtained order under s588FF(3)(b) Corporations Act 2001 (Cth) extending
time to make applications under s588FF(1) (shelf order) - liquidators sought
order under s588FF(1) against applicants with respect to certain transactions -
applicants sought to have shelf order set aside on basis that it was invalid -
Court of Appeal of New South Wales found s588FF(3)(b) allowed making of shelf
orders, that applications under ss588FF(1) and (3) were distinct applications,
and that Court did not err in exercising discretion not to set aside shelf
order - held: Court could make order extending time under s588F(3)(b) without
identifying particular transaction or transactions to which it would apply - availability
of shelf orders was a construction open on text of s588FF(3)(b) - construction consistent
with purpose of provision to allow Court to mitigate strictness of time limits in
an appropriate case - effect of re-enactment of s588FF(3), in light of construction
adopted by Court of Appeal, is no barrier to construction and may be taken to
support it - appeal dismissed.
Fortress
Credit Corporation (Australia) (B)
[From Benchmark 12 March 2015] |
Di
Cioccio v Official Trustee in Bankruptcy (as Trustee of the Bankrupt Estate of
Di Cioccio)
[2015] FCAFC 30
Full Court of the Federal Court of
Australia
Edmonds, Gordon & Beach JJA
Bankruptcy - appellant during bankruptcy used income below actual income threshold amount to acquire shares in company -
Official Trustee decided shares were after-acquired
property which vested in Official Trustee under s58(1) Bankruptcy Act 1966 (Cth) - appellant contended shares excluded
from operation of s58(1) by operation of Div 4B of Pt V - statutory
construction - held: shares were after-acquired
property - vested in Official Trustee under s58(1) - bankrupt entitled to
retain income derived below actual income
threshold amount applicable to bankrupt - Act did not prohibit bankrupt
from acquiring specific item of property - Act deemed that after-acquired
property vested in bankrupt’s trustee unless it was property of a kind
specified in s116(2) - shares were not property listed in s116(2) - no
inconsistency in construction of Act - appeal dismissed.
Di Cioccio (B)
[From Benchmark 13 March 2015] |
Khouzame
v All Seasons Air Pty Ltd
[2015] FCAFC 28
Full Court of the Federal Court of Australia
Robertson, Wigney & Gleeson JJ
Bankruptcy – respondent was subcontractor
retained by appellant – payment dispute arose – adjudication carried out
pursuant to Building and Construction
Industry Security of Payment Act 1999 (NSW) – adjudication concluded
respondent entitled to payment – adjudication certificate issued – Local Court entered
judgment for respondent – bankruptcy notice issued on application of respondent
– primary judge dismissed application to set aside bankruptcy notice – primary
judge found respondent’s failure to file affidavit at time of seeking entry of
judgment as required by s25 did not rise as high as abuse of process for
bankruptcy law purposes – statutory construction - held: adjudication
certificate only became enforceable as judgment for debt when it may be filed and it cannot be filed unless accompanied by affidavit specified in s
25(2) – appeal allowed – bankruptcy notice set aside.
Khouzame (I B C)
[From Benchmark 17 March 2015] |
Sienkiewicz
(As Trustee for the Sienkiewicz Superannuation Fund) v Salisbury Group Pty Ltd
(in Liq) (No 2)
[2015] FCA 147
Federal Court of Australia
Robertson J
Insurance - financial services errors
and omissions insurance policy - proceedings originally comprised two claims -
claim by trustee of Sienkiewicz retirement fund - claim by trustee for AT
Melville retirement fund - both claims for damages against former financial
advisers, namely company and its representatives - company in liquidation -
there was also claim against financial advisers’ professional indemnity
insurers - applicants settled case against representatives and discontinued
against company - one representative continued claim against insurers for
indemnity - meaning and application of insuring clause of policy - whether
representative an insured - any Authorised representative - meaning
and application of endorsements and exclusions - approved investment products - whether s54 Insurance Contracts Act 1984 (Cth) prevented insurer from refusing
to pay claim - held: representative’s cross-claim against insurers dismissed.
Sienkiewicz
(As Trustee for the Sienkiewicz Superannuation Fund) (I B)
[From Benchmark 12 March 2015] |
O’Farrell
v Allianz Australia Insurance Ltd
[2015] NSWCA 48
Court of Appeal of New South Wales
Basten, Macfarlan & Gleeson JJA
Judicial review – insurance - applicant
obtained comprehensive motor vehicle insurance policy from insurer - motor
vehicle stolen – insurer gave notice it would disavow policy and sought cancellation
on basis of applicant’s failure to comply with duty of disclosure – Consumer,
Trader and Tenancy Tribunal upheld applicant’s claim for payment by insurer of
value of vehicle – District Court allowed insurer’s appeal – ss21, 21A, 22, 28
& 29A Insurance Contracts Act 1984
(Cth) – matter relevant to the insurer - clearly
inform – operation of s22 - held: Tribunal’s conclusion that insurer had
not satisfied s22(1) was not attended by legal error – District Court’s
contrary finding revealed misapprehension of nature and scope of jurisdiction
under s67 Consumer, Trader and Tenancy
Tribunal Act 2001 (NSW) – decision set aside.
O’Farrell (I)
[From Benchmark 17 March 2015] |
Valuer-General
v Fivex Pty Ltd
[2015] NSWCA 53
Court of Appeal of New South Wales
Basten, Gleeson & Leeming JJA
Valuation of land – unimproved value of
fee simple - appeal and cross-appeal from determination of valuations of land
on which building was erected – building found to have floor space ratio which
was greater than permitted by local government plan - primary judge had
expressly determined land value pursuant to s 6A(1) Valuation of Land Act 1916 (NSW) without making assumptions stated
in s6A(2) – primary judge held that finding of highest and best use had
consequence that assumptions identified in s6A(2) were not engaged –
whether s6A2 had further operation once highest and best use determined - mandatory assumption as to existing uses and
improvements – statutory construction - held: respondents’ construction of
s6A(2) rejected - primary judge did not err in failing to address GST treatment
of sales where argument not made at trial – appeal allowed – cross-appeal
dismissed.
Valuer-General (B C G)
[From Benchmark 18 March 2015] |
Giedo
van der Garde BV v Sauber Motorsport AG
[2015] VSC 80
Supreme Court of Victoria
Croft J
Arbitration - applicants sought
enforcement of foreign arbitral award - critical dispositive provision granted
order requiring respondent to refrain from taking action to deprive first
applicant of entitlement to participate in the 2015 Formula One Season as
nominated race driver - common ground that threshold requirements of s8 International Arbitration Act 1974 (Cth)
satisfied - whether respondent could prove circumstances in ss8(5) and (7) as
grounds for refusal of enforcement - scope of submission to arbitration -
non-arbitrability - public policy - held: no grounds to refuse to enforce award
- award enforced.
Giedo van der Garde BV (I B)
[From Benchmark 13 March 2015] |
Pope v
Madsen
[2015] QCA 36
Court of Appeal of Queensland
Holmes JA; Mullins & Henry JJ
Pleadings - equity – fiduciary duties –
applicant sought leave to appeal against refusal to dismiss respondent’s statement
of claim as not disclosing cause of action known to Australian law – respondent
sought equitable damages and exemplary damages for breach of fiduciary duties
against applicant, who was her biological father, for alleged physical and
sexual abuse during childhood - current state of Australian law on child suing parents
for equitable compensation for breach of fiduciary duty as result of an injury
sustained due to abusive conduct of parents – held: current state of Australian law was that respondent had no
maintainable cause of action against applicant - no point in waiting for trial
before applying law that does not support existence of cause of action – appeal allowed
– statement of claim struck out.
Pope (I)
[From Benchmark 18 March 2015] |
Goldus
Pty Ltd v Australian Mining Pty Ltd
[2015] SASC 32
Supreme Court of South Australia
Parker J
Joint venture agreement - plaintiff and
first defendant were joint venturers - second defendant sole shareholder of
first defendant contracted to sell shares to third party - plaintiff contended
that, under agreement, first defendant required to give notice of proposed sale
and that plaintiff had pre-emptive right to purchase first defendant’s
participating interest in joint venture on the terms of sale - plaintiff also
contended implied term of agreement required joint venturer could not sell
interest to unrelated party incapable of discharging rights and obligations
required of joint venture - evidence of prior negotiations - it goes without saying - held: clauses
of joint venture uncertain, void and severed from agreement - first defendant
not required to give notice of share sale - no term implied in agreement -
action dismissed.
Goldus Pty Ltd (I B C)
[From Benchmark 13 March 2015] |
Marshall
v Tasmanian Perpetual Trustees Ltd
[2015] TASFC 2
Full Court of the Supreme Court of
Tasmania
Blow CJ; Porter & Estcourt JJ
Wills – succession – appeal from decision
in which primary judge answered executor’s questions on construction of
deceased’s Will - competing propositions as to part of Will dealing with remainder
of estate – whether gifts to testator’s sisters vested upon testator’s death - surviving children then living - held:
primary judge’s conclusion as to proper construction of Will was correct –
answers to questions correct – no appealable error in reaching conclusion,
whether by application of rules of construction, interpretation of rules of
intestacy, redundancy of words in Will or otherwise – appeal dismissed.
Marshall (B)
[From Benchmark 16 March 2015] |
Treloar
v State of Tasmania
[2015] TASFC 3
Full Court of the Supreme Court of
Tasmania
Tennent, Porter & Escourt JJ
Workers compensation - permanent
impairment from psychiatric injury - percentage of whole person impairment
referred to Chief Commissioner of Workers Rehabilitation and Compensation Panel
- Chief Commissioner considered Tribunal had no power to refer question to
medical panel as suitably qualified medical practitioners were not available –
primary judge held that requirement that medical practitioner be suitably qualified had nothing to do
with qualification to consider a particular medical question and that it
referred only to qualification to be on register from which practitioners
chosen – primary judge set aside decision – ss49(3), 50 & 72 Workers Rehabilitation and Compensation Act 1988 (Tas) - held:
appeal grounds did not identify the nature of appealable error said to have
been made by primary judge – in effect appellant had made same submission as
were made to Chief Commissioner and primary judge – no error in primary judge’s
decision – appeal dismissed.
Treloar (I G)
[From Benchmark 16 March 2015] |
Lewis
Blyth & Hooper (a firm) v Smith
[2015] WASCA 47
Court of Appeal of Western Australia
Buss, Newness & Murphy JJA
Solicitors’ costs – costs agreements –
appeals from decisions in which primary judge cancelled two costs agreement
entered between respondent and firm pursuant to s222(2) Legal Practice Act 2003 (WA) – trial judge had determined that both
costs agreements were unreasonable solely on basis of finding that costs
estimate had not been provided – held: primary judge erred in approach to application of s222(2) - absence of provision
of costs estimate was one matter relevant to circumstances in which agreements “came
into being” but all circumstances in which they came into being had to be
considered – in addition other relevant circumstances had to be considered
before final evaluation could properly be made – family trust action costs
agreement was not unreasonable – no error in exercise of discretion in relation
to probate action costs agreement – appeal allowed in relation to family trust
action costs agreement – appeal dismissed in relation to probate action costs
agreement.
Lewis (I)
[From Benchmark 18 March 2015] |
Avopiling
(WA) Pty Ltd v Central Systems Pty Ltd
[2015] WASC 82
Supreme Court of Western Australia
Allanson J
Contract - parties disputed amounts
owing under construction contract - plaintiff issued writ - in exchange of
phone text messages, defendant offered and plaintiff accepted an amount ’in
full and final settlement’ - whether parties formed enforceable agreement to
settle dispute which included settlement foreshadowed counterclaim by defendant
- held: parties demonstrated intention to make legally binding agreement -
agreement in full and final settlement of dispute - declarations made.
Avopiling (WA) Pty Ltd (B C)
[From Benchmark 13 March 2015] |
| CRIMINAL |
| Executive Summary |
| CMB
v Attorney General for New South Wales (HCA) - criminal law - Court
of Criminal Appeal erred in increasing sentence on prosecution appeal - appeal
allowed |
| Summaries With Link |
CMB
v Attorney General for New South Wales
[2015] HCA 9
High Court of Australia
French CJ; Kiefer, Bell, Gageler &
Keane JJ
Criminal law - sentencing - appellant
charged with sexual offences against daughter - appellant referred to treatment
program pursuant to regulation made under Pre-Trial
Diversion of Offenders Act 1985 (NSW) - appellant encouraged to make
additional disclosures and admitted further sexual offences against daughter of
which she had no memory - appellant charged and sentenced in relation to
further offences - sentence deferred upon appellant entering good behaviour
bonds - Court of Criminal Appeal (CCA) allowed Attorney-General’s appeal
against adequacy of sentences and re-sentenced appellant to five years and six
months’ imprisonment - onus - leniency that may be extended for guilty plea
resulting from voluntary disclosure of otherwise unknown guilt - s5D Criminal Appeal Act 1912 (NSW) - s23 Crimes (Sentencing Procedure) Act 1999
(NSW) - held: before Court of Criminal Appwal could allow appeal, prosecution
needed to demonstrate both appellable error and negate any reason why residual
discretion not to interfere should be exercised - CCA failed to consider
whether it was open to District Court to determine non-custodial sentences were
not unreasonably disproportionate to nature and circumstances of offences -
appeal allowed.
CMB |
From: A Dream of the Unknown
by P. B. Shelley
I DREAM’D that as I wander’d by the way
Bare winter suddenly
was changed to spring,
And gentle odours led my steps astray,
Mix’d with a sound of
waters murmuring
Along a shelving bank of turf, which lay
Under a copse, and
hardly dared to fling
Its green arms round the bosom of the stream,
But kiss’d it and then fled, as thou mightest in dream.
There grew pied wind-flowers and violets,
Daisies, those
pearl’d Arcturi of the earth,
The constellated flower that never sets;
Faint oxlips; tender
bluebells, at whose birth
The sod scarce heaved; and that tall flower that wets—
Like a child, half in
tenderness and mirth—
Its mother’s face with heaven-collected tears,
When the low wind, its playmate’s voice, it hears.
And in the warm hedge grew lush eglantine,
Green cow-bind and
the moonlight-colour’d may,
And cherry-blossoms, and white cups, whose wine
Was the bright dew
yet drain’d not by the day;
And wild roses, and ivy serpentine
With its dark buds
and leaves, wandering astray;
And flowers azure, black, and streak’d with gold,
Fairer than any waken’d eyes behold.
P. B. Shelley
|
