| Australian Securities and Investments Commission v Mariner Corporation Ltd (FCA) - corporations - conduct relating to announcement of off-market take-over bid - originating application dismissed (I B) |
| AAI Ltd, application under the Insurance Act 1973 (Cth) (No 2) (FCA) - insurance - transfer of insurance business - confirmation of scheme (I) |
| Papantoniou v Brown (NSWCA) - contract - arrangement for purchase of share in property - finding of unjust contract outside pleadings - denial of procedural fairness - appeal allowed (I B) |
| Endeavour Energy v Precision Helicopters Pty Ltd (NSWCA) - negligence - contract - multiple claims arising from helicopter crash - appeal allowed in part (I) |
| Landmark Property Enterprise Pty Ltd v Monash Property Developments Pty Ltd (VSC) - contract for sale of land - determination of separate questions - contract was a terms contract under Sale of Land Act 1962 which plaintiff was permitted to avoid under the Act (Vic) |
| Re Calder Park Promotions (In Liq) (VSC) - corporations - non-compliance by examinee with requirement to produce documents - examinee ordered to pay wasted costs incurred by liquidators (B) |
| Nichols Constructions Pty Ltd v Mt Marlow Pty Ltd (QSC) - pleadings - contract - loan - statement of claim embarrassing and struck out with leave to replead (B C) |
| Summaries With Link (Five Minute Read) |
Australian Securities and Investments Commission v Mariner Corporation Ltd [2015] FCA 589
Federal Court of Australia
Beach J
Corporations - proceeding concerning lawfulness of defendants’ conduct relating to announcement of off-market takeover bid by company for all issued capital of another company at 10.5 cents per share - ASIC brought proceeding against Mariner and its three directors alleging contraventions of ss180, 631(2)(b) & 1041H Corporations Act 2001 with respect to takeover announcement - test for ‘reckless’ - misleading or deceptive conduct - price representation - funding representation - held: ASIC’s claims failed - originating application dismissed.
ASIC (I B)
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AAI Ltd, application under the Insurance Act 1973 (Cth) (No 2) [2015] FCA 617
Federal Court of Australia
Yates J
Insurance - applicant sought order under s17F Insurance Act 1973 (Cth) that scheme under Div 3A of Pt III of the Act be confirmed to give effect to transfer of insurance business of MTA Insurance Ltd to AAI (scheme) - formal requirements - actuarial report - no opposition to scheme - held: Court satisfied with applicant’s submissions concerning confirmation of scheme pursuant to s17F - scheme should be confirmed - orders made substantially as sought by AAI.
AAI (I)
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Papantoniou v Brown [2015] NSWCA 168
Court of Appeal of New South Wales
Beazley P; Macfarlan JA & Sackville AJA
Contract - unjust contracts - procedural fairness - solicitor entered contractual arrangement with two brothers, one of which later died, to purchase sisters’ share of co-owned property - brothers agreed solicitor could borrow funds for purchase and provide mortgage of property as security - brothers agreed to provide guarantees to lender - solicitor made purchase with borrowed funds secured over property - brothers provided guarantees - solicitor defaulted - lender took possession - one brother incurred expenses in unsuccessful attempt to resist lender’s claim - primary Judge found original contractual arrangement unjust under Contracts Review Act 1980 and declared it void to extent it required solicitor’s liability to be borne by respondents and ordered solicitor to pay compensation to respondents - held: finding that contractual arrangement unjust was outside cross-claims pleaded by respondents - conditions in Dare v Pulham for conduct of case outside pleadings not satisfied - solicitor denied procedural fairness - respondents not entitled to claim expenses against solicitor of unsuccessfully resisting lender’s claim for possession - appeal allowed.
Papantoniou (I B)
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Endeavour Energy v Precision Helicopters Pty Ltd [2015] NSWCA 169
Court of Appeal of New South Wales
Basten JA, Macfarlan JA & Sackville AJA
Negligence - contract - apportionment - helicopter owned/operated by company (Precision) crashed while inspecting powerlines pursuant to contract with another company (Endeavour)when skid of helicopter caught wire owned by Telstra - observer in helicopter and employed by Endeavour injured and helicopter damaged - observer was not wearing helmet - observer and family sought damages for personal injury and nervous shock and other parties sought orders for contribution or indemnity - trial judge dismissed claims against Telstra - trial judge found Precision and Endeavour liable to observer and apportioned liability at 85% and 15% - trial judge found Endeavour not entitled to rely on contractual indemnity against Precision - trial judge also found carriage not covered by Civil Aviation (Carriers’ Liability) Act 1967 because observer not a “passenger” - Endeavour and Precision appealed - Pt IA Div 2, ss5B, 5C; 5D, 5E & 35 Civil Liability Act 2002 - held: primary judge erred in finding Telstra not liable for breach of duty of care to owner and occupants of helicopter - observer was a “passenger” for purposes of Carrier’s Liability Act - Endeavour breached contractual and general law duties to observer and to Precision - even if pilot should have conducted high level survey of area it would not have revealed presence of wire - Precision not liable for breach of duty which would not have revealed materialised risk - appeal allowed in part.
Endeavour (I)
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Landmark Property Enterprise Pty Ltd v Monash Property Developments Pty Ltd [2015] VSC 266
Supreme Court of Victoria
Croft J
Contract - sale of land - preliminary hearing - determination of separate questions - whether contract of sale was a terms contract under Sale of Land Act 1962 (Vic) and, if so, whether plaintiff was permitted to avoid contract under ss29N or 29S(1) - extensions of time for completion - application of Sale of Land Act to transaction between parties - held: excluding consideration of possible application and effect of provisions of Instruments Act 1958 (Vic) Court found that contract of sale was a terms contract under Sale of Land Act and that plaintiff was permitted to avoid contract under s29N Sale of Land Act but not under s29S(1).
Landmark (Vic)
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Re Calder Park Promotions (In Liq) [2015] VSC 285
Supreme Court of Victoria
Gardiner AsJ
Corporations - external administration - liquidators of company sought that summonses be issued for examination of certain persons in relation to examinable affairs of company summons issued to examinee to attend examination and produce documents - liquidators sought that examinee pay their costs wasted by reason of his failure to produce the documents - ss596A & 597(9) Corporations Act 2001 - held: there was serial non-compliance with requirement to produce documents - examinee ordered to pay the costs wasted by reason of the non-compliance with his obligations - Court declined to fix costs.
ReCalder (B)
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Nichols Constructions Pty Ltd v Mt Marlow Pty Ltd [2015] QSC 165
Supreme Court of Queensland
Martin J
Pleadings - plaintiff sought declarations orders against first and second defendants with respect to loan from plaintiff to another company - second defendant sought to strike out claim and statement of claim - rr171 & 293 Uniform Civil Procedure Rules 1999 - held: pleading was inadequate - pleading relied on at least one allegation which was not properly pleaded and which might not be able to be pleaded - not a fruitful exercise to attempt to excise inadequate parts - pleading was embarrassing and struck out with leave to replead.
Nichols (B C)
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