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NSW v Brown
(NSWCA) - employment contracts - industrial law - of such importance - leave to appeal refused
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In the matter of
Epsilon Knowledge Pty Ltd (NSWSC) - corporations -
winding up - creditor's statutory demand set aside
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Cornerstone Property
& Development Pty Ltd v Suellen Properties Pty Ltd (QSC)
- equity - trusts and trustees - director of company caused another company to
enter contract for purchase of land - no breach of fiduciary duties
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J M Kelly (Project
Builders) Pty Ltd v Toga Development No. 31 Pty Ltd (No 6)
(QSC) - pleadings - building contract - leave to file and serve fifth amended
statement of claim
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Elton v Public Trustee (SASC)
- probate - Wills - lost document did not extinguish prior Will
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Goldedge Holdings Pty
Ltd v Liquor and Gambling Commissioner (SASC) - leases -
liquor and gaming - no error in Commissioner's decision to transfer gaming
machine licence to lessor and accepting lessor's offer to sell entitlements
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| Summaries With Link (Five Minute Read) |
NSW v Brown [2014] NSWCA 365
Court of Appeal of New South Wales
Basten & Leeming JJA; Bergin CJ in Eq
Employment contracts - industrial law - respondent worked
as Aboriginal Education Officer (AEO) at school - respondent employed by
applicant on series of temporary contracts - employment terminated - permanent
AEO position at school advertised - respondent not successful - interview
process flawed - respondent sought declaration contract unfair within s105 Industrial Relations Act 1996 (NSW) -
trial judge found contract unfair only in that it did not contain significant
weight term - trial judge found selection process unfair and rendered contract
unfair - trial judge varied contract to include significant weight term and
ordered applicant pay respondent 12 months' salary as compensation for loss of
income and employment opportunity and $5,000 as compensation for costs
associated with psychiatric injury - applicant sought leave to appeal pursuant
to s403B - of such importance - held:
no issue of importance such that leave to appeal should be granted - decision
would not have wide impact with respect to temporary employment in public
service - trial judge erred by finding post-termination conduct rendered employment contract unfair but
this did not warrant a grant of leave - remedy provided in s106(3) available
even though applied after the termination of the contract - summons dismissed.
NSW
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In the matter of
Epsilon Knowledge Pty Ltd
[2014] NSWSC 544
Supreme Court of New South Wales
Brereton J
Corporations - winding up - plaintiff sought pursuant to
s459G Corporations Act 2001 (Cth)
order setting aside creditor's statutory demand served on it by defendant -
demand arose out of staff hosting service agreement - order sought on basis
there was genuine dispute about existence and amount of debts and that
plaintiff had offsetting claims against defendant - held: plaintiff established
genuine dispute and succeeded in raising offsetting claim - creditor's
statutory demand set aside.
In the matter of Epsilon Knowledge Pty
Ltd
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Cornerstone Property
& Development Pty Ltd v Suellen Properties Pty Ltd [2014] QSC 265
Supreme Court of Queensland
Jackson J
Equity - trusts and trustees - plaintiff company entered
contract for purchase of land – second defendant was director and shareholder
of company – both other directors resigned – one of the other directors was
only other shareholder – other directors told second defendant their business
dealings were at an end – second defendant allowed contract to purchase land to
lapse – second defendant was sole director of first defendant - second
defendant caused first defendant to enter new contract on same terms as
plaintiff's contract – plaintiff claimed second defendant acted in breach of
fiduciary duty or duty under ss181(1) or 182(1) Corporations Act 2001 (Cth) as director of plaintiff in causing
first defendant to enter contract to buy lot and in proceeding with project -
claims against first defendant were based on liability of a person who had
received and become chargeable with trust property, or who had assisted with
knowledge in a dishonest and fraudulent design on part of the trustees, or who
was the company alter ego of a defaulting director - held: second defendant did
not act in breach of fiduciary duty without informed consent - second defendant
acted in good faith in best interests of plaintiff and for a proper purpose and
did not improperly use her position as a director of the plaintiff - plaintiff
not entitled to the relief it claimed against either the first or second
defendants.
Cornerstone Property & Development
Pty Ltd
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J M Kelly (Project
Builders) Pty Ltd v Toga Development No. 31 Pty Ltd (No 6) [2014] QSC 262
Supreme Court of Queensland
Flanagan J
Pleadings - applicant sought leave to file and serve a
proposed fifth further amended statement of claim - most significant amendment
sought was addition of paragraphs which pled that liquidated damages provisions
of a building contract between applicant and defendant was void and of no
effect as a penalty - delay - whether pleadings inconsistent with prior court
rulings - held: leave granted to file and deliver a fifth amended statement of
claim containing the penalty plea - leave granted to file and deliver amended reply
and answer which cross-referenced to penalty plea - any plea in relation to
variation claim to be pleaded in accordance with Court's reasons.
J M Kelly (Project Builders) Pty Ltd
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Elton v Public Trustee [2014] SASC 149
Supreme Court of South Australia
Stanley J
Wills - probate - deceased made Will in 1991 which
appointed Public Trustee as executor of deceased's estate - under Will, sole
beneficiary of deceased's estate was nephew - deceased died - nephew had
predeceased him - Public Trustee obtained grant of probate of deceased's Will -
plaintiff sought revocation of grant of probate and admission to probate of
document entitled "Irrevocable Order" as last Will of the deceased -
plaintiff claimed deceased created Irrevocable Order in 1996 - plaintiff
alleged Irrevocable Order should be admitted to probate as a lost and informal
Will pursuant to s12 Wills Act 1936
(SA) - neither original nor copy of Irrevocable Order had been located - held:
sometime in 1996, deceased prepared Irrevocable Order - evidence relating to
terms of Irrevocable Order inconsistent and ultimately unreliable - Irrevocable
Order did not revoke or extinguish 1991 Will.
Elton
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Goldedge Holdings Pty
Ltd v Liquor and Gambling Commissioner [2014] SASC 147
Supreme Court of South Australia
Kourakis CJ
Leases - gaming and liquor - lessor terminated lease due to
lessee's default - upon entering lease, parties contemplated that lessee would
apply for gaming machine licence - lease included provision that, on
termination, licences held by lessee would be transferred to lessor -
Commissioner transferred gaming machine licence to lessor and accepted lessor's
offer to sell entitlements attached to licence - lessee contended it was not
obliged to transfer all of the transferrable gaming machine entitlements with
the licence, but that it was entitled to sell the entitlements in accordance
with provisions of Gaming Machines Act
1992 (SA) and to retain proceeds of sale - lessee sough that lessor make
restitution to it for wrongfully retaining the proceeds of the sale of
entitlement - held: lessee not entitled to strip gaming machine licences of
entitlements before transferring licences to lessor - not unconscionable of
lessor to enforce those terms - Commissioner bound by law to accept and act on
lessor's offer to sell because lessor was the holder of the gaming machine
entitlements - lessor did not act unconscionably in selling the entitlements
and retaining the proceeds of sale - claim dismissed.
Goldedge Holdings Pty Ltd
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