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AR Conolly & Company

A Daily Bulletin listing selected decisions
of Superior Courts of Australia

Published by
AR Conolly & Company

Benchmark Podcast: Friday, 19 December 2014

Weekly Law Review

Case Summaries

Commissioner of State Revenue v Lend Lease Development Pty Ltd [2014] HCA 51
High Court of Australia
French CJ; Hayne, Kiefel, Bell & Keane JJ
Stamp duty - Authority and Lend Lease made development agreement - Lend Lease agreed to buy parcels of land from Authority and to design, construct and sell buildings on land - agreed that parties would build infrastructure on and around land - transfers of land to be made pursuant to land sale contracts - Lend Lease required by agreement to pay to Authority, not only amounts under contracts, but also other amounts including payments for infrastructure, remediation, and share of gross proceeds received on sale - Commissioner assessed duty under Duties Act 2000 (Vic) according to consideration for each transfer which it determined to be total of sums payable by Lend Lease to Authority under agreement - Commissioner disallowed Lend Lease's objections - Court of Appeal of Victoria allowed appeals - Commissioner appealed - held: transaction recorded in agreement was a single, integrated and indivisible transaction - consideration for transfer of land was performance by Lend Lease of the several promises of payments - Commissioner right to include those amounts in assessments - appeal allowed.
Commissioner of State Revenue (I B C G)
[From Benchmark 12 December 2014]


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    Australian Competition and Consumer Commission v AGL South Australia Pty Ltd [2014] FCA 1369
    Federal Court of Australia
    White J
    Trade practices - consumer law - respondent (AGL) was retailer of electricity - ACCC alleged AGL engaged in misleading or deceptive conduct or made false or misleading statements in respect of discounts from its charges for electricity supplied to customers - ACCC sought declarations AGL contravened ss18(1) & 29(1)(g) and (i) Australian Consumer Law, penalties and relief - s140 Evidence Act 1995 (Cth) - ss52 & 53 Trade Practices Act 1974 (Cth) - ss4(2) & 155 Competition and Consumer Act 2010 (Cth) - held: ACCC's claim upheld in relation to certain statements made by AGL in mid-2012 - Court not satisfied certain other statements were misleading or deceptive - allegations that AGL engaged in misleading or deceptive conduct by omitting to disclose certain information to customers at time of rate increases rejected - declaration made.
    Australian Competition and Consumer Commission (I G)
    [From Benchmark 17 December 2014]
     
    Shaw v Yarranova Pty Ltd [2014] FCAFC 171
    Full Court of the Federal Court of Australia
    Bennett, Flick & Yates JJ
    Bankruptcy - respondent as nominee for company (MAB) sold apartment to appellant - respondent assigned benefit of contract to another company - appellant failed to pay balance of purchase price - appellant’s claim for specific performance of contract dismissed - judgment entered in favour of respondent and MAB (‘judgment creditors’) - appellant contended judgment creditors suffered no loss or damage - appellant contended judgment creditors falsely represented they were part of group of companies owned by MAB and that they committed a “fraud” by falsely representing they had been held out of funds and unable to invest money - judgment creditors served bankruptcy notice on appellant - appellant appealed against sequestration order - ss43, 52 & 153B Bankruptcy Act 1966 (Cth) - absence of evidence of fraud - refusal to go behind judgment - refusal of disqualification application - held: grounds of appeal not made out - application to adduce further evidence dismissed - appeal dismissed.
    Shaw (B)
    [From Benchmark 18 December 2014]
     
    Peregrine Mineral Sands Pty Ltd v Wentworth Shire Council [2014] NSWCA 429
    Court of Appeal of New South Wales
    McColl, Meagher & Ward JJA
    Contract - administrative law - dispute concerning land rates payable by appellants to Council for mine they operated - agreement for land rates contained clause stating rate would be ‘adjusted annually in accordance with the Local Government Act' - Council increased rates after valuation received by Valuer-General - primary judge found clause referred to increases in rates of nature of adjustments arising out of percentage rate published pursuant to Local Government Act 1993 (NSW) not amounts determined based upon valuations - primary judge also held clause impermissibly fettered Council from undertaking statutory duty of assessing rates each year in accordance with the Act - held: no error in conclusion that agreement incompatible with the Act because it fettered Council's ability to make rates into the future - the Act did not authorise antecedent agreement capping future rates in advance - no uninvited review of decision making process leading to execution of the agreement - no error in construction of clause - appeal dismissed.
    Peregrine Mineral Sands Pty Ltd (I B C G)
    [From Benchmark 12 December 2014]
     
    Welsh v Carnival PLC trading as Carnival Australia [2014] NSWCA 430
    Court of Appeal of New South Wales
    McColl JA, Sackville AJA & Adamson J
    Damages -  negligence - appellant injured when part of ceiling fell on head on cruise ship operated by respondent - respondent admitted liability -  matter proceeded as an assessment of damages - primary judge assessed damages - appellant submitted primary judge's reasons did not indicate basis on which claim for substantial damages was effective rejected - appellant claimed evidence that arguably supported claim not considered and that there was substantial miscarriage of justice - appellant sought retrial - held: primary judge's reasons inadequate to fulfil judicial function of giving reasons amounting to error of law - substantial wrong or miscarriage within r51.53 Uniform Civil Procedure Rules 2005 (NSW) - undoubted and substantial prejudice to respondent in being required to conduct a new trial did not militate against an order for a re-trial - appeal allowed.
    Welsh (I)
    [From Benchmark 16 December 2014]
     
    Nominal Defendant v Ismail [2014] NSWCA 432
    Court of Appeal of New South Wales
    Basten, Barrett & Emmett JJA
    Negligence - motor vehicle accident - Ismail lost control of vehicle and collided with car - Ismail alleged loss of control caused when unidentified sedan made abrupt stop in front of her - truck driver behind Ismail claimed there was no sedan and that accident caused by unidentified semi-trailer attempting to merge - primary judge found there was both sedan and semi-trailer which contributed to accident - primary judge found for Ismail - Nominal Defendant challenged admissibility of traffic engineer's opinion and adequacy of trial judge's findings in reconciling inconsistent accounts of accident - Ismail cross-appealed on assessment of damages - held: report inadmissible as expert evidence as traffic engineer did not profess specialised knowledge in identifying how events perceived and recalled by different persons - approach taken by primary judge to reconcile accounts depended on admissibility of the evidence - finding on liability set aside - retrial ordered on liability
    Nominal Defendant (I)
    [From Benchmark 18 December 2014]
      
    Zraika by his tutor Zraika v Walsh [2014] NSWSC 1774
    Supreme Court of New South Wales
    Davies J
    Negligence - plaintiff diagnosed with microcephaly and developmental delay shortly after birth - plaintiff alleged he was injured by trauma sustained while he was in utero when mother injured in motor vehicle accident - causation - one explanation for plaintiff’s injuries was a genetic cause - defendants sought order for genetic testing - plaintiff opposed genetic testing on basis it would inevitably result in vacating of hearing date - delay - held: Court satisfied there was live issue as to causation of plaintiff’s physical incapacity and intellectual difficulty - Court satisfied that proposed testing had capacity to throw light on the issue - orders for testing made.
    Zraika by his tutor Zraika (I)
    [From Benchmark 18 December 2014]
     
    Saba v Moit Projects [2014] NSWSC 1759
    Supreme Court of New South Wales
    McDougall J
    Banking - plaintiff was proprietor of property - property went to auction - purchaser signed cheque form on business account and handed form to real estate agent - real estate agent filled up cheque with plaintiff’s name as payee and gave it to her - cheque not met on presentation - account closed - plaintiff sued for value of cheque - held: purchaser handed over form of cheque to real estate agent on communicated basis it was to be filled up as required for payment of deposit - condition on delivery of cheque was accepted and honoured - plaintiff made good her claim to amount of cheque - judgment for plaintiff.
    Saba (B)
    [From Benchmark 16 December 2014]
     
    White v Forster [2014] NSWSC 1767
    Supreme Court of New South Wales
    Button J
    Professional negligence - solicitors' duties - plaintiffs sued solicitor and barrister for professional negligence - solicitor and barrister sought to have proceedings struck out pursuant to r13.4 Uniform Civil Procedure Rules 2005 (NSW) on basis they were statute barred pursuant to s14 Limitation Act 1969 (NSW) and on basis of advocate's immunity - held: claim against barrister statute-barred and struck out - if Court wrong that claim against barrister was statute-barred, Court would nevertheless strike out claim on basis it was precluded by advocate's immunity - claim against solicitor not clearly statute-barred - bases of claim against solicitor either work done in court or work out of court that led to decision that affected conduct of case in court - claim precluded against solicitor by immunity - claim against solicitor struck out.
    White (I)
    [From Benchmark 15 December 2014]
     
    AIG Australia Ltd v Jaques [2014] VSCA 332
    Court of Appeal of Victoria
    Warren CJ; Neave & Hansen JJA
    Insurance - insurer issued investment management insurance policy to company - insurer undertook to pay or reimburse loss of any insured person resulting from claim being made against them during policy period for wrongful managerial act - director of company was insured person under policy - during policy period, director notified insurer of claims made against him for wrongful managerial acts that had occurred in 2006, 2007 and 2008 - insurer accepted claims - claims for defence costs by directors of company in court proceedings exhausted limit under policy - under policy, non-executive directors became prima facie entitled to special excess limit - insurer refused director extended cover - director sought declaration he was entitled to indemnity under policy in respect of loss related to conduct prior to appointment as executive director in 2007 - primary judge found director was non-executive director of company during relevant period and was entitled to indemnity - insurer appealed - held: challenge to judge's definition of non-executive director in policy failed - no failure to give adequate weight to matters of fact - challenges to factual findings failed - appeal dismissed.
    AIG Australia Ltd (I)
    [From Benchmark 17 December 2014]
     
    McInnes v Davies [2014] SASC 184
    Supreme Court of South Australia
    Stanley J
    Contract - sale of residential property - contract subject to condition that purchaser obtain finance by certain date, which did not occur - vendors sent email to agent enclosing signed termination notice addressed to purchaser with instruction to return purchaser's deposit - notice not given at that time nor was deposit returned - bank emailed vendors' agent copy of letter to purchaser advising finance approved - on same day vendors executed contract with third party to purchase property - purchaser asserted at date of bank's letter contract still on foot and had become unconditional - purchaser lodged caveat over property and sought specific performance of contract and extension of caveat - District Court rejected application pursuant to ss191G and/or 191K Real Property Act 1886 (SA) to extend caveat over land until purchaser's claim for specific performance of contract was determined at trial - held: no dispute that purchaser had caveatable interest in property - nothing in purchaser's conduct justified judge in depriving him of protection of caveat pending trial of action - judge's conclusion that balance of convenience did not favour extending caveat was failure to properly exercise discretion - appeal allowed.
    McInnes (B)
    [From Benchmark 15 December 2014]
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