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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: Tuesday, 3 March 2015

Weekly Law Review

Case Summaries

Tran v Pu [2015] FCA 97
 
This was a bankruptcy matter in the Federal Court of Australia in which the appellant’s estate had been sequestrated pursuant to a Registrar’s order. 
The respondent had initially obtained default judgment against the appellant in the Magistrate’s Court of Victoria before issuing a bankruptcy notice on the judgment debt.  The parties subsequently reached a settlement, pursuant to which a deed of settlement was entered into, but the appellant defaulted on the first payment due under the deed, resulting in the respondent seeking the sequestration order.  
 
The respondent made an application for review of the sequestration order by a Federal Circuit Court judge on the basis that the deed of settlement contained a clause that it could be pleaded as a defence to proceedings.
 
But the Federal Circuit Court dismissed application, finding that the deed of settlement was a bar to the application for review.
 
The Federal Court however did not agree, and held that no private contractual bar could foreclose the proper application of section 52 of the Bankruptcy Act, which relates to creditor’s petitions.  
 
The primary judge had not engaged in either of the things that were required, being either a rehearing de novo, or engaging in the task required under section 52.
 
The appeal was therefore allowed and the matter was remitted. 


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    White v Johnston [2015] NSWCA 18
     
    This was a case in the Court of Appeal of New South Wales in which the respondent, who was the patient of a dentist, had alleged that the appellant, who was the dentist, had treated her in a manner that constituted assault, or alternatively, that she treated her negligently.
     
    The primary judge held that the dentist had committed assault and battery on the patient but the dentist contended that the evidence did not establish an absence of therapeutic purpose in the treatments she performed.  She argued that the primary judge had erred in relying on evidence admitted to demonstrate a tendency to charge for services not performed, and in waiving a notice requirement. The dentist also contended that the exemplary damages awarded were excessive.
     
    The Court of Appeal held that the evidence did not establish an absence of therapeutic purpose and that the awarding of exemplary damages was in error.
     
    The decision to admit evidence relating to malpractice was overturned and the matter was remitted to the District Court confined to the alternative claim in negligence.
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