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Friday, 20 February 2015

Case Summaries

Lavin v Toppi [2015] HCA 4
High Court of Australia
French CJ; Kiefel, Bell, Gageler & Keane JJ
Guarantee - contribution in equity - bank consolidated loans into loan to company - parties were guarantors of loan - bank made demands on guarantors - demand not met - bank sued guarantors - appellants and bank entered deed of release and settlement - bank covenanted not to sue appellants if first appellant paid minor portion of debt - first appellant paid portion - respondents paid remaining debt - respondents claimed contribution from appellants in respect of payment in excess of their proportionate share of debt - coordinate liabilities - held: Court of Appeal of New South Wales correct to hold bank’s covenant not to sue did not extinguish appellants’ liability under guarantee - respondents’ entitlement in equity to contribution from time parties were called upon to satisfy guarantee could not be defeated by bank giving appellants covenant - appeal dismissed.
Lavin (I B)
[From Benchmark 17 February 2015]

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Jingalong Pty Ltd v Todd

[2015] NSWCA 7

Contract - parties to proceedings in Equity Division entered settlement agreement - appellant relied on settlement agreement to defeat claims made by respondents to hold interests in land ofwhich appellant was registered proprietor - primary judge held settlement agreement was an accord executory which was unenforceable - since respondent had chosen not to comply with agreement, there had been no performance - primary judge found agreement did not prevent respondents from pursuing causes of action, and upheld their claims - construction of agreement - held: settlement agreement was binding and enforceable - claims made by respondents had been satisfied - appeal allowed.

Jingalong Pty Ltd (I B)

Ashton v Pratt

[2015] NSWCA 12

Ashton (I B)

Attorney General of NSW v Homeland Community Ltd

[2015] NSWCA 15

Attorney General of NSW (B)

CGU Insurance Ltd v Davies

[2015] NSWCA 5

Workers compensation - worker employed by company (Fowler) from 1940 to 1979 - worker employed from 1979 by another company (Seapip) - worker exposed to silica dust in in each employment - worker developed silicosis as result of inhaling dust - worker sued Fowler and Seapip - claim settled - appellant assumed liabilities of Fowler’s workers compensation insurer (South British) up to 30/6/79 - no known workers compensation insurer of Fowler after 30/6/79 and before it sold business to Seapip - appellant contended it was not liable to indemnify Fowler because policy which applied for period ending 30/6/79 only indemnified against liability accruing during period of insurance - held: relevant liability was for occupational disease caused only by exposure to silica dust during particular period - claim was in respect of period of employment to the nature of which the disease was due, which ended on 30/6/79 - that was time at which Fowler’s liability for disease was taken to have arisen by s151AB(1) Workers Compensation Act 1987 (NSW) - South British was on risk at that time and its policy indemnified Fowler against that liability - appeal dismissed.

CGU Insurance Ltd (I C)

Herrick v Knowles (No 2)

[2015] NSWSC 54

Costs - costs of non-party - third defendant sought order that plaintiff not be permitted access to material produced in response to subpoena to produce issued to doctor - plaintiff was refused access to doctor’s report - Court ordered plaintiff to pay defendants’ costs on ordinary basis - when judgment delivered, counsel for doctor did not appear due to oversight - no application made regarding doctor’s costs - doctor was non-party - doctor sought costs - whether necessary for doctor to be separately represented - held: exceptional circumstances gave rise to doctor opposing access to documents and explaining her reasons principles set out in O’Keefe v Hayes Knight GTO Pty Ltd [2005] FCA 1559 met - plaintiff to pay doctor’s costs.

Herrick (I)
[From Benchmark 16 February 2015]

Australasian Annuities Pty Ltd (in liq) v Rowley Super Fund Pty Ltd

[2015] VSCA 9

Equity - directors’ duties - appellant brought action for knowing receipt and restitution against respondent - funds diverted from appellant to superannuation fund of which respondent was trustee - appellant sought to recover payments, alleging they were diverted in breach of fiduciary duties owed by appellant’s sole director - held: respondent as trustee of super fund was liable to appellant for the knowing receipt of funds diverted to respondent by director in breach of his fiduciary duties as appellant’s director - director’s knowledge imputed to respondent - liability for respondent arose under first limb of Barnes v Addy - claim made by appellant against respondent as a volunteer failed - amount paid by director out of appellant’s account for personal benefit and benefit of his family to be repaid by respondent to appellant together with interest - appeal allowed.

Australasian Annuities Pty Ltd (in liq) (I B)

Stewart v Ackland

[2015] ACTCA 1

Negligence - appellants were owner/occupiers of farm on which they conducted business involving amusement park - respondent university student injured when performing aerial backward somersault on jumping pillow owned by owner/occupiers - trial judge found owner/occupiers liable for respondent’s injuries - held: trial judge correctly decided activity in which respondent was engaged when injured was adangerous recreational activity - no error in finding that risk was not obvious - open to trial judge to find breach of duty by appellants and that causation established - appeal dismissed.

Stewart (I)

Criminal
R v Nguyen [2015] SASCFC 7

Court of Criminal Appeal of South Australia
Peek, Blue & Bampton JJ
Evidence - appellant charged with two counts of drug trafficking - appellant sought exclusion of evidence obtained by police officers stopping her vehicle and searching her handbag – claimed search was unlawful - primary judge ruled police officers had requisite reasonable suspicion - s52 Controlled Substances Act 1984 (SA) – further, primary judge would have exercised discretion not to exclude evidence in any event - appellant convicted - appellant contended primary judge erred in concluding police officers had requisite reasonable suspicion and in exercise of discretion - held: detective did not form requisite suspicion to justify search - search unlawful - no evidence to show detective’s mistaken understanding of breadth of powers conferred by Act was peculiar or isolated - evidence of search excluded in exercise of discretion -prosecution case wholly dependent on evidence of search - appeal allowed - convictions set aside.
R

Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1
Court of Criminal Appeal of Tasmania
Blow CJ; Porter & Pearce JJ
Sentencing - respondent with intellectual disability pleaded guilty to one count of causing grievous bodily harm - primary judge sentenced respondent to imprisonment for 12 months - primary judge made order wholly suspending sentence of imprisonment for two years subject to special conditions - appellant contended sentence manifestly inadequate and seriousness of crime demanded sentence involving term of actual imprisonment or more tangible form of punishment - personal deterrence and denunciation - held: Court not persuaded primary judge erred in sentencing approach - given absence of prior convictions for violence, respondent\'s age, intellectual disability, and chance of rehabilitation, it was proper to allow for exercise of mercy - appeal dismissed.
Director of Public Prosecutions