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AR Conolly & Company

A Daily Bulletin listing selected decisions
of Superior Courts of Australia

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AR Conolly & Company

Benchmark Podcast: Friday, 17 July 2015

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Case Summaries

Carey v Laikin 2015 SCC 17
Supreme Court of Canada
McLachlin CJ; Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ
Contempt - respondent brought contempt proceedings against appellant lawyer alleging he breached terms of Mareva injunction by returning money to client for whom he was holding it in trust - injunction issued in course of litigation between respondent, client and related parties and enjoined any person with knowledge of order from disposing or dealing with assets of various parties, including client’s - motions judge found lawyer in contempt - lawyer moved to reopen contempt hearing and filed new evidence - motions judge set aside previous finding of contempt - Court of Appeal allowed appeal and restored initial contempt finding - held: lawyer was in contempt - Court of Appeal correctly held motions judge erred in exercising discretion to permit lawyer to relitigate initial contempt finding, and erred in setting finding aside - appeal dismissed.
Carey (I B)
[From Benchmark Thursday, 9 July 2015]

Read full summaries »
    Burke v Burke [2015] NSWCA 195
    Court of Appeal of New South Wales
    Meagher, Ward & Emmett JJA
    Succession - appellant, respondent and another were surviving children of deceased had no contact with appellant for about 20 years before death - deceased made no provision for appellant - appellant sought family provision order- not disputed appellant was in financial need - primary judge found deceased entitled to regard appellant as undeserving of benefit - primary judge dismissed application - held: no error in primary judge’s assessment of significance of incident which appellant maintained was material cause of estrangement - primary judge’s conclusion not contradicted by evidence that appellant’s telephone calls to deceased’s nursing home did not bespeak attempt at reconciliation and that contact was motivated by desire to ascertain whether he was going to receive inheritance - estrangement not a determinative factor against making of provision for adult child - neither was estrangement in absence of callousness or hostility a determinative factor in favour of making of provision - estrangement was a factor to be taken into account - primary judge’s assessment of position not so out of kilter with community values and expectations to bespeak error - appeal dismissed.
    Burke (B)
    [From Benchmark Wednesday, 15 July 2015]

    Glen v Sullivan [2015] NSWCA 191
    Court of Appeal of New South Wales
    Beazley P, Ward JA & Sackville AJA
    Damages - motor vehicle accident - appellant claimed damages for injuries sustained when struck by vehicle driven by respondent - liability admitted - assessment of damages reflected primary judge’s findings that although accident caused some physical and psychological injuries those injuries had resolved long before trial - credit - pre-accident health - medical evidence - onus of adducing evidence - s5D Civil Liability Act 2002 - s131Motor Accidents Compensation Act 1999 - held: respondent discharged its onus of adducing evidence probative of fact that any causal relationship between accident and psychiatric disabilities had ceased well before trial - primary judge appreciated differing evidentiary burdens borne by parties - no error in primary judge’s approach - appeal dismissed.
    Glen (I)
    [From Benchmark Friday, 10 July 2015]

    Beck v Colonial Staff Super Pty Ltd [2015] NSWSC 723
    Supreme Court of New South Wales
    Slattery J
    Superannuation - plaintiff was former employee of bank and member of superannuation fund to which he contributed - trustee of fund amended trust deed of fund to remove existing fund rule (clause A11.3) which provided for certain discretionary benefits - plaintiff contended trustee’s exercise of power to amend breached its general law duty to act in best interests of fund’s  beneficiaries and contravened statutory duties under s52(2)(c)Superannuation Industry Supervision Act (Cth) 1993 and Superannuation Industry (Supervision) Regulations 1994 - estoppel - unconscionable conduct - held: plaintiff successful in challenge to validity of decision to amend rules of fund to remove clause - plaintiff entitled to consideration of possible benefits under clause - plaintiff also successful in estoppel case - plaintiff entitled to relief on basis he was entitled to pension at age 55 subject to adjustments and other relief considerations - parties to bring in short minutes of order - proceedings adjourned.
    Beck (B)
    [From Benchmark Thursday, 9 July 2015]

    Roxo v Normandie Farm (Dairy) Pty Ltd [2015] NSWSC 895
    Supreme Court of New South Wales
    Schmidt J
    Mortgages - possession - defendant registered proprietor granted plaintiff registered mortgage over property to secure loan - principal due to be repaid in June 2005 - plaintiff sought possession of property under s60 Real Property Act 1900 -  defendant claimed plaintiff bound by an oral agreement he made with its sole director and shareholder who also borrowed funds from plaintiff - on basis of agreement defendant claimed plaintiff not entitled to recover interest - defendant claimed it had repaid all it owed to plaintiff and plaintiff was not entitled to possession - held: plaintiff established relevant default under mortgage - plaintiff established entitlement to order for possession - defendant failed to establish basis for resisting order - judgment for plaintiff - possession order made.
    Roxo (B)
    [From Benchmark Tuesday, 14 July 2015]

    Zwambila v Wafawarova [2015] ACTSC 171
    Supreme Court of the Australian Capital Territory
    Penfold J
    Defamation - plaintiff was Zimbabwean ambassador to Australia - plaintiff claimed second defendant published defamatory article in Zimbabwean newspapers and republished allegations on his website - Div. 9.4.3, ss123, 139G & 139K Civil Law (Wrongs) Act 2002 , s15(1) Service and Execution of Process Act 1992 (Cth) - Civil Law (Wrongs) Non-economic Loss Declaration 2015 - choice of law - cultural significance of allegations - assessment of damages - aggravated damages - held: second defendant was publisher of defamatory material - identification of defamatory imputations not challenged by second defendant - having regard to nature of defamation, nature and extent of the original publication, personal hurt, significance of plaintiff’s reputation and the need to vindicate her position Court considered plaintiff should receive $160,000 damages with additional $20,000 aggravated damages having regard to further harm done by defendant’s approach to requests for apology or retraction.
    Zwambila (I)
    [From Benchmark Tuesday, 14 July 2015]

    Criminal

    McGrath v The Queen [2015] VSCA 176
    Court of Appeal of Victoria
    Maxwell P, Redlich & Kyrou JJA
    Criminal law - applicant pleaded guilty in County Court to one charge of cultivating commercial quantity of cannabis, one charge of theft, one charge of possessing cocaine and one charge of possessing a prohibited weapon - applicant sought to appeal against sentence - applicant contended that because trial judge not guided by guideline judgment in Boulton v The Queen concerning community correction order, decision to impose custodial sentence was infected by specific error - whether case was ‘CCO territory’ - principle of parsimony - held: trial judge well aware of CCO as option and correctly applied principle of parsimony in concluding that seriousness of applicant’s offending required substantial custodial term - as applicant had pleaded guilty to cultivating 8.5 times commercial quantity of cannabis trial judge’s conclusion was well open - leave to appeal refused.
    McGrath

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