| Commissioner for
Consumer Protection v Unleash Solar (in liq) Pty Ltd (FCA) - corporations
- Commissioner granted leave to commence proceedings against company in
liquidation (B G) |
| Rockdale City Council
v Simmons (NSWCA)
- negligence - cyclist injured in collision with boom gate - council liable -
appeal dismissed - cross-appeal allowed in part (I) |
| Golden Mile Property
Investments Pty Ltd (in liq) v Cudgegong Australia Pty Ltd (NSWCA) - real
property - equity - mortgages - entitlement to compensation for resumed land -
appeal allowed - matter remitted to Land and Environment Court (I B C) |
| Gacic v John Fairfax
Publications Pty Ltd (NSWCA) - damages - defamation - action arising out of review of
restaurant - appeal and cross-appeal allowed (I) |
| Kissane Family Pty Ltd
as Trustee for the Kissane Family Trust v Burns (NSWSC) - contract -
funding of promotional tour by soccer team - funder entitled to return of funds
it lent to promotor (I B) |
| Veall v Veall (VSCA) - Wills and
estates - refusal to grant probate - testator lacked testamentary capacity when
making Will - appeal dismissed (I B) |
| Gekko Developments Pty
Ltd v Centa Company Pty Ltd (QSC) - contract - no agreement for conditional
or unconditional payment of amount to plaintiff (B C) |
| Summaries With Link (Five Minute Read) |
Commissioner
for Consumer Protection v Unleash Solar (in liq) Pty Ltd [2015] FCA 348
Federal Court of Australia
McKerracher J
Corporations - Commissioner
sought leave to commence proceedings against company in liquidation pursuant to
s471B Corporations Act 2001 (Cth) -
in substantive proceedings Commissioner sought relief including injunction
pursuant to s232 Australian Consumer Law
(Cth) - purpose of application to ensure assets dealt with such that no person derived
advantage inconsistent with legislative scheme - standing - service out of
jurisdiction - delay - complexity of factual and legal issues - held: there was
serious question in dispute and appropriate explanation for delay - liquidator
had notice and had not raised objection - leave granted.
Commissioner
(B G)
|
Rockdale
City Council v Simmons
[2015] NSWCA 102
Court
of Appeal of New South Wales
Beazley
P; McColl & Barrett JJA
Negligence
- respondent injured while riding bicycle through carpark adjacent to club when
he struck boom gate which was closed across entrance - plaintiff sued council
and club - primary judge found council liable - contributory negligence
assessed at 20% - s5B Civil Liability Act
2002 (NSW) - held: primary judge did not err in finding council owed duty
of care to respondent or that it breached duty of care - no error in finding of
causation or in finding council was not exercising “special statutory power”
under s43A - no error in refusal to find club owed duty of care to respondent -
primary judge erred in finding of contributory negligence - appeal dismissed -
cross-appeal allowed in part.
Rockdale
(I)
|
Golden
Mile Property Investments Pty Ltd (in liq) v Cudgegong Australia Pty Ltd [2015] NSWCA 100
Court of Appeal of New South
Wales
Macfarlan, Emmett &
Gleeson JJA
Real property - equity -
corporations - mortgages - applicant was registered proprietor of land resumed
by second respondent (Transport NSW) - proceeding concerned entitlement to
compensation under Land Acquisition (Just
Terms Compensation) Act 1991 (NSW) (JTA) - at time of acquisition applicant
had been deregistered under s601AB(2) Corporations
Act 2001 (Cth) - prior to acquisition first respondent contracted to buy resumed
land from company (Stacks) which was exercising power of sale under registered
mortgage over resumed land granted by applicant (first mortgage) - dispute
between applicant and first respondent concerned which of them was entitled to
compensation under JTA - part of compensation had been paid by Transport NSW to
Stacks and to another company (RTS), which was mortgagee under a second
registered mortgage over resumed land granted by applicant - held: trial judge
erred in dealing with question whether Stacks breached duty to applicant in
exercising power of sale under first mortgage - leave to appeal granted -
appeal allowed - matter remitted to Land and Environment Court to determine respective
interests that applicant and first respondent had in resumed land.
Golden
(I B C)
|
Gacic
v John Fairfax Publications Pty Ltd
[2015] NSWCA 99
Court of Appeal of New South
Wales
McColl, Macfarlan &
Barrett JJA
Damages - defamation - action arising
out of review published by respondents of restaurant conducted by appellants - judgment given in respondents’ favour
(liability judgment) - matter remitted for assessment of damages - appellants
contended primary judge’s award of damages was inadequate and that primary
judge erred by not back-dating judgment to date of liability judgment -
respondents contended primary judge erred in consideration of plea in
mitigation of damages and that award of damages excessive - held: primary judge
erred in award of aggravated damages by failing to take into account
respondents’ failure to apologise and imputations’ falsity - primary judge
erred in failing to back-date judgment - primary judge erred by not ordering
first respondent to pay exemplary damages for continuing publication of review
- primary judge erred in failing to conclude certain statements by reviewer
were statements of fact relevant to appellants’ reputations and contextual
background - compensatory damages and exemplary damages increased - damages
reduced for mitigation factors - appeal allowed - cross-appeal allowed.
Gacic
(I)
|
Kissane
Family Pty Ltd as Trustee for the Kissane Family Trust v Burns [2015] NSWSC 423
Supreme Court of New South
Wales
Lindsay J
Contract - questions concerning
construction and operation of contract relating to funding of promotional tour
of Australia by soccer team - plaintiff provided money to promotor but suffered
shortfall in financial return - meaning of clause of principal contract between
plaintiff, promotor and guarantors which provided that funds provided by
plaintiff to cover costs of tour would be repaid to plaintiff “from the distribution
of ticket sales” - admissibility of extrinsic evidence - contractual context -
competing contentions - indebitatus
assumpsit - held: amount repaid to plaintiff fell short of “the funds
advanced” - plaintiff entitled against promotor to be repaid balance on promoter’s
default in repaying outstanding balance of “the funds advanced” - entitlement
enforceable in debt or under law of restitution - plaintiff entitled to return of
funds lent by it to promotor and not repaid but “retained” by promotor -
guarantors accepted guarantee obliged them to make good promotor’s default - judgment
for plaintiff.
Kissane
(I B)
|
Veall
v Veall
[2015] VSCA 60
Court of Appeal of Victoria
Santamaria, Beach & Kyrou
JJA
Wills and estates -
testamentary capacity - appellants were executors of 10 December 2010 will and sought
its admission to probate - respondent was deceased’s daughter - respondent objected
to grant of probate on grounds deceased lacked testamentary capacity and did
not know and approve of contents of will - primary judge upheld objection on
grounds that although testator had testamentary capacity it was not persuaded testator
knew of and approved of contents of Will - appellants appealed - suspicious circumstances
- capacity of testator to evaluate claims on bounty - held: deceased lacked testamentary capacity at time of making
December Will - notice of contention upheld - Court not persuaded trial judge erred
in holding he could not be affirmatively satisfied testator knew and approved
the contents of the December will - appeal dismissed.
Veall
(I B)
|
Gekko
Developments Pty Ltd v Centa Company Pty Ltd
[2015] QSC 87
Supreme Court of Queensland
P McMurdo J
Contract - defendant owner of
shopping centre signed option to purchase granted to plaintiff company - dealings
between parties to end of shopping centre being sold - plaintiff claimed
parties agreed that in consideration of plaintiff giving up claim to contractual
entitlement to property, defendant would pay amount to plaintiff - defendant
denied contract made - whether amount was promised to be paid - whether consideration for a promise to pay - held: defendant
did not contractually promise to pay amount to plaintiff, conditionally or
unconditionally - option agreement had been terminated - plaintiff failed to
prove alleged agreement - judgment for defendant.
Gekko
(B C)
|
