| Kanakaridis v Westpac Banking Corporation (FCA) - summary dismissal - loans and mortgages - estoppel - bank entitled to dismissal of applicants’ whole claim - proceeding dismissed (I B) |
| Stambolziovski v Nestorovic and Camanaro Prestige Properties Pty Ltd t/as Sydneyhome Real Estate (NSWCA) - negligence - slip and fall at premises - circumstances of accident - water on ground - owner and manager of premises not liable - appeal dismissed (I) |
| State of New South Wales v Plum (NSWSC) - transfer of proceedings - nervous shock - complexity of issues to be determined - transfer of proceedings from District Court refused (I) |
| Kern v Qantas Airways Ltd (NSWSC) - summary dismissal - pleadings - claim arising from engine failure on Qantas flight - amended statement of claim struck out - proceedings dismissed (I) |
| Sharp v Attorney General of NSW (NSWSC) - trusts and trustees - judicial advice - gift in Will effective to create valid charitable trust - declarations and orders (B) |
| CBX2 Pty Ltd v National Australia Bank Ltd (No 3) (NSWSC) - security for costs - threshold issue - plaintiff discharged onus that it ought not provide security for costs - security for costs declined (I B) |
| Wandel v Halloran (SASCFC) - contract - primary judge’s findings as to contract supported by evidence - disconformity between pleaded cases and accepted evidence did not lead to procedural fairness or miscarriage of justice - appeal dismissed (I B C) |
| Summaries With Link (Five Minute Read) |
Kanakaridis v Westpac Banking Corporation [2015] FCA 1146
Federal Court of Australia
Beach J
Summary dismissal - loans and mortgages - estoppel - res judicata - applicants sought to set aside or prevent enforcement of loan agreements and mortgages entered into with respondent bank - issues applicants sough to litigate had already been litigated to finality in Supreme Court of Victoria -summary judgments had been given in favour of bank - bank sought summary dismissal on grounds of res judicata, issue estoppel, Anshun estoppel and that proceeding was abuse of process - bank also contended that claims untenable with no reasonable prospects of success - held: bank entitled to judgment dismissing whole of applicants’ claims pursuant to s31A (2) Federal Court of Australia Act 1976 (Cth) or r26.01 Federal Court Rules 2011 (Cth) - certain claims subject of issues estoppel, Anshun estoppel and were abuse of process - other claims had no prospects of success - proceeding dismissed.
Kanakaridis (I B)
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Stambolziovski v Nestorovic and Camanaro Prestige Properties Pty Ltd t/as Sydneyhome Real Estate [2015] NSWCA 332
Court of Appeal of New South Wales
Beazley P, Ward JA & Emmett AJA
Negligence - first respondent owned premises - second respondent was managing agent of premises - appellant claimed she was injured when she slipped on water on floor of laundry and that water was result of a toilet leak which was present due to owner’s failure to take reasonable steps to ensure laundry was safe and to ensure water did not leak from toilet - primary judge found in favour of respondents - primary judge’s conclusion based on assessment of credit of witnesses and analysis of probabilities based on objective evidence - held: ground of appeal contending failure to draw ‘Ferrcom’ inference rejected - challenges to findings relating to claim toilet was leaking failed - hospital notes did not support finding that most likely cause of accident was that appellant fell in water whilst mopping - primary judge’s erroneous treatment of hospital notes had influenced view as to more likely cause of accident - however even if statement as to more likely cause of accident was erroneous separate finding, there was no substantial miscarriage of justice - appeal dismissed.
Stambolziovski (I)
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State of New South Wales v Plum [2015] NSWSC 1566
Supreme Court of New South Wales
Harrison AsJ
Transfer of proceedings - defendant’s son arrested by police and detained in police vehicle - defendant sued State for nervous shock under s31 Civil Liability Act 2002 (NSW) alleging it owed duty of care to son take reasonable precautions against him suffering injury; and duty to her to take reasonable care not to cause her mental harm - State sought transfer of District Court proceedings to Supreme Court - complexity of issues to be determined - held: State did not show sufficient reason to transfer proceedings - law as to whether police officers owed son duty of care was not complex - if police did not owe son duty of care, they did not owe plaintiff duty of care - proceedings to remain in District Court.
State of New South Wales (I)
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Kern v Qantas Airways Ltd [2015] NSWSC 1565
Supreme Court of New South Wales
Harrison AsJ
Summary dismissal - pleadings - limitations - aviation law - personal injury claims - engine failure occurred during flight from Singapore to Sydney - plaintiff passenger sought damages of $3,301,502,000,000 against first defendant Qantas as carrier, second defendant Airbus Australia as manufacturer of aircraft and third defendant Rolls Royce as manufacturer of engine - applications for dismissal and to strike out statement of claim - held: claim against Qantas statute-barred and dismissed - second-named defendant was non-entity - leave not granted to replead - on fair reading of amended statement of claim against Rolls Royce not clear what case it was expected to meet - amended statement of claim struck out against Rolls Royce - proceedings dismissed.
Kern (I)
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Sharp v Attorney General of NSW [2015] NSWSC 1580
Supreme Court of New South Wales
Stevenson J
Trusts and trustees - judicial advice - wills and estates - by testator’s Will whole of estate after payment of debts and expenses was to be held in trust known as “Street of Dreams Martin Sharp Trust” - executors sought judicial advice and declarations - whether Will created valid charitable trust - ambit of clause allowing “my trustees to deal with my assets” - whether corporate trustee of trust could be appointed in lieu of the executors and literary executors - whether trustees had power to sell property - held: gift in Will effective to create valid charitable trust - declarations and orders proposed by parties made.
Sharp (B)
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CBX2 Pty Ltd v National Australia Bank Ltd (No 3) [2015] NSWSC 1555
Supreme Court of New South Wales
Harrison AsJ
Security for costs - threshold issue - defendant sought security for costs of proceeding pursuant to r42.21 Uniform Civil Procedure Rules 2005 (NSW) and/or s1335 Corporations Act 2001 (Cth) - whether it appeared to Court by credible testimony that there was reason to believe plaintiff would be unable to pay defendant’s costs if successful in its defence - bona fides of claim/prospects of success - impecuniosity of plaintiff - stultification - whether impecuniosity/financial position caused by defendant’s actions - held: exercise of discretion a finely balanced task having taken matters into account - plaintiff discharged onus that it ought not provide security for costs - security for costs declined.
CBX2 (I B)
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Wandel v Halloran [2015] SASCFC 155
Full Court of the Supreme Court of South Australia
Nicholson J; Bampton & Parker JJ
Contract - primary judge found respondents entitled to amounts due under contracts for repair to river crossing and water supply made orally between parties - appellant contended contract claims as found by primary judge were not pleaded and evidence insufficient to establish them - held: primary judge’s findings as to contracts were supported by evidence - disconformity between respondents’ pleaded cases and evidence accepted by primary judge did not give rise to procedural unfairness or miscarriage of justice - appeal dismissed.
Wandel (I B C)
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