A Daily Bulletin listing selected decisions
of Superior Courts of Australia

Benchmark Podcast: Friday, 8 May 2015

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Case Summaries

Henderson v McSharer [2015] FCA 396
Federal Court of Australia
Gilmour J
Consumer law - deceit - commercial dishonesty - applicants conducted sheep farming enterprise - applicants were in financial difficulty - applicants claimed first respondent induced them to accept him as provider of business consultancy services and to transfer flock of sheep to a company controlled by him - applicants claimed first respondent engaged in misleading or deceptive conduct in contravention of s18 Competition and Consumer Act 2010 or unconscionable conduct in contravention of s21 Australian Consumer Law - ss12CA, 12CB & 12DA Australian Securities and Investments Commission Act 2001 - held: first respondent represented he had capacity to assist applicants in ways beyond actual capacities - first respondent engaged in misconduct for personal financial advantage - applicants relied on first respondent’s false representations to engage his services and transfer flock of sheep which was then sold with applicants never receiving proceeds - unconscionable conduct and tort of deceit established - loss and damage established - declarations and orders 
Henderson (I B)
[From Benchmark Friday, 1 May 2015]

Read full summaries »
    Marshall v Prescott [2015] NSWCA 110
    Court of Appeal of New South Wales
    Beazley P; Macfarlan & Emmett JJA
    Equity - contract - solicitors’ duties - appellants were mother and son (Margaret Marshall and Kim Marshall) who retained respondent solicitor in relation to recovery of damages in US proceedings in respect of death of Neil Marshall in plane crash - at time of death deceased was separated from  Mrs Marshall and in de facto relationship with Ms Carruthers - solicitor also acted for Ms Carruthers in US proceedings - appellants claimed damages against solicitor for disclosing information they alleged was confidential to them - Marshalls sought to recover solicitor/client component of costs in Supreme Court proceedings brought against Ms Carruthers in relation to entitlement to settlement sum in US proceedings - appellants alleged costs incurred by solicitor’s breaches of confidence - terms on which solicitor retained by appellants and by Ms Carruthers - whether information confidential - held: solicitor retained by appellants in co-ordinating capacity only - solicitor retained by Ms Carruthers to act in co-ordinating and substantive role -  appellants gave fully informed consent to solicitor acting for Ms Carruthers - information not confidential - even if breach of confidence occurred appellants did not demonstrate loss - appeal dismissed.
    Marshall (I)
    [From Benchmark Thursday, 30 April 2015]
    Yuan v Xie [2015] NSWSC 492
    Supreme Court of New South Wales
    Stevenson J
    Loans and mortgages - equitable charge - payment out of Court - plaintiff claimed to have equitable charge over property owned by first defendant - claim arose from  document called ‘Loan Agreement’ pursuant to which plaintiff agreed to lend amount to second defendant - first defendant signed document as ‘guarantor’ - there was amount outstanding - mortgagee took possession of property and exercised power of sale - net proceeds paid into court - plaintiff sought order pursuant to r55.11 Uniform Civil Procedure Rules 2005 that money be paid out to her on basis she held equitable charge at value of outstanding debt - held: Court satisfied document  bespoke intention by first defendant to charge property as security - plaintiff had established primary entitlement and its basis to money paid into Court - Court also satisfied plaintiff had interest in very funds paid into Court - unregistered security interest over property retained force after sale of property and converted to equitable charge - money to be paid out to plaintiff.
    Yuan (B)
    [From Benchmark Wednesday, 6 May 2015]
    Bodycorp Repairers Pty Ltd v AAMI & Martin [2015] VSCA 73
    Court of Appeal of Victoria
    Warren CJ, Beach JA & Ginnane AJA      
    Contract - restraint of trade - respondent (Bodycorp) entered franchise agreements with smash repairers - appellant (AAMI) entered agreement with Bodycorp to provide that if at any time before certain date franchisee who was an AAMI recommended repairer ceased to be Bodycorp franchisee, AAMI would take steps, effect of which would be that  former Bodycorp franchisee could no longer conduct business as a recommended repairer of AAMI for six months - Bodycorp contended AAMI breached agreement, and that AAMI and manager induced certain franchisees to breach franchise agreements -  trial judge dismissed Bodycorp’s claims against AAMI and manager - trial judge found AAMI breached the AAMI agreement in respect of certain franchisees but that relevant clauses of AAMI agreement were unenforceable because they imposed unreasonable restraints of trade - held: no error in finding of unreasonable restraints of trade - no error in rejection of claims for inducing breach of contract - no basis on which trial judge was obliged to assess or award damages - appeal dismissed.
    Bodycorp (I B)
    [From Benchmark Thursday, 30 April 2015]
    Kirk v PBP Accounting Solutions Pty Ltd [2015] VSC 173
    Supreme Court of Victoria
    Macaulay J
    Summary judgment - first plaintiff gave powers of attorney to second defendant  - plaintiffs brought proceeding against second defendant and first defendant company of which second defendant was director - plaintiff alleged second defendant transferred  money belonging to plaintiffs to company in breach of fiduciary obligations -  plaintiffs sought recovery of money - plaintiffs sought judgment in default of defence - held: defendants failed to serve defence within time - Court satisfied second defendant caused loss to first plaintiff by breaching fiduciary duties - company knowingly received first plaintiff’s money and knowingly assisted in second defendant’s breaches - company knowingly received trust property belonging to trustee of family trust - declarations and relief granted.
    Kirk (I B)
    [From Benchmark Monday, 4 May 2015]
    Kambouris v Tahmazis (No 2) [2015] VSC 174
    Supreme Court of Victoria
    Lansdowne AsJ
    Damages - negligence - solicitors’ duties - assessment of damages suffered by plaintiff arising from breaches of duty by second defendant solicitor- liability trial conducted on undefended basis - held: it was necessary for Court to determine whether there was causal connection between plaintiff’s losses and breaches of duty - plaintiff failed to prove factual causation as required by s51(1)(a) Wrongs Act 1958 - plaintiff also failed to prove it was appropriate for scope of solicitor’s  liability to extend to harm he caused in respect of claimed loss - judgment for solicitor with exception of nominal damages awarded for breaches of retainer.
    Kambouris (I)
    [From Benchmark Monday, 4 May 2015]
    D’Aquino (as trustee of the D’Aquino Endowment Trust) v Trovatello [2015] VSCA 78
    Court of Appeal of Victoria
    Warren CJ; Ashley & McLeish JJA
    Summary judgment - nuisance - limitation of actions - dispute concerning concrete slab cast on land which encroached over boundary of adjoining land - owners of adjoining land observed damage to factory situated on land close to common boundary - owners claimed damages against defendants for trespass, nuisance and negligence - County Court summarily dismissed proceeding on ground applicants had no real prospects of success by reason of Limitation of Actions Act 1958 - no reasonable prospect - s63 Civil Procedure Act 2010 - held: respondents did not discharge onus to establish applicants had no real prospect of success of making out cause of action in nuisance - legally open to applicants to plead claim in nuisance and seek to recover damages - appeal allowed
    D’Aquino (I B C)
    [From Benchmark Tuesday, 5 May 2015]
    Fitzgerald v CBL Insurance Ltd (No. 2) [2015] VSC 176
    Supreme Court of Victoria
    Sloss J
    Costs - plaintiffs as trustees for former employees of company (Huon) claimed against defendant company (CBL) for indemnity under insurance policy issued by CBL in favour of ‘Transferring Employees’ of three businesses - Court concluded trustees proved fact of damage to which policy responded - parties agreed on judgment sum payable - trustees sought interest on judgment sum from date of issue of proceedings to date of judgment calculated in accordance with s57 Insurance Contracts Act 1984 (Cth), that they pay defendant’s costs thrown away of application to amend statement of claim, and that otherwise defendant pay their costs on standard basis - whether plaintiffs’ conduct in proceeding caused unnecessary delay and expense - date from which it was unreasonable for insurer to have withheld payment on claim - trustees’ success on most but not all pleading issues - held: on and from 11/10/13 it was ‘unreasonable’ within meaning of s57 for CBL to withhold payment of agreed sum payable under policy - plaintiff entitled to interest under s57 - entitlement should be recognised by judgment - parties to re-calculate interest component applicable to judgment sum due by using 11/10/13 as start date - in special circumstances of case appropriate to depart from usual rule - amount of costs trustees entitled to recover from CBL reduced.
    Fitzgerald (I B)
    [From Benchmark Tuesday, 5 May 2015]
    Haque v State of Victoria [2015] VSCA 83
    Court of Appeal of Victoria
    Osborn & Beach JJA
    False imprisonment - defamation - applicant sued State alleging causes of action in assault, battery, false imprisonment and defamation - County Court dismissed proceeding and entered judgment for State - applicant sought leave to appeal - held: no error in primary judge’s acceptance of constable’s evidence that he told applicant he was being arrested pursuant to outstanding warrant - no error in conclusions that arrest warrant valid and outstanding and that arrest neither wrongful nor unlawful - ss461(1) & 461(2)Crimes Act 1958 did not operate to make arrest unlawful - no error in conclusion it was reasonable for police to place applicant in handcuffs - no error in dismissal of defamation claim or in fact-finding analysis - grounds of appeal without merit - Court not satisfied appeal had real prospect of success - leave to appeal refused. 
    Haque (I)
    [From Benchmark Wednesday, 6 May 2015]
    CRIMINAL
    Executive Summary
    Duncan v Regina (NSWCCA) - criminal law - conduct of judge - judge not repeatedly asleep during trial - no miscarriage of justice - appeal against conviction dismissed
    LFG v The State of Western Australia (WASCA) - criminal law - erroneous dismissal of application for trial judge alone - convictions quashed - retrial
    Summaries With Link
    Duncan v Regina [2015] NSWCCA 84
    Court of Criminal Appeal of New South Wales
    Simpson, Hall & Campbell JJ
    Criminal law - appellant appealed against conviction by jury in 2003 of maliciously inflicting grievous bodily harm and affray - appellant asserted that, within the meaning of s 6(1) Criminal Appeal Act 1912 , there was miscarriage of justice because judge was asleep for significant periods during course of trial - ‘substantially failed to discharge’ - held: trial judge was not repeatedly asleep during trial - trial judge exercised appropriate superintendence and control of trial and conducted trial according to law - jurors not distracted by trial judge’s alleged conduct - no basis for contention that appellant’s legal representatives failed to in duty to raise trial judge’s conduct - appeal dismissed.
    Duncan
    LFG v The State of Western Australia [2015] WASCA 88
    Court of Appeal of Western Australia
    Martin CJ; Buss & Mazza JJA
    Criminal law - appellant appealed against conviction on counts of indecent dealing with children and counts of sexual penetration of child - appellant also appealed against sentence - appellant asserted Chief Judge erred in dismissing appellant’s application for trial by judge alone, that  Stevenson DCJ erred in ruling evidence of prior convictions admissible, and that appellant’s convictions were unsafe and unsatisfactory - s118Criminal Procedure Act 2004 - held: first ground of appeal concerning dismissal of application for trial by judge alone upheld - convictions quashed - retrial ordered on ground appellant denied a trial quite different in character to the trial which he received - other grounds of appeal against conviction dismissed - appeal against sentence dismissed.
    LFG
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