Insurance, Banking, Construction & Government: Tuesday, 1 September 2015 View in browser
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AR Conolly Company Lawyers.
A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Daily Composite

Insurance, Banking, Construction & Government

Executive Summary (One Minute Read)
Allan J Heasman Pty Ltd v Commissioner of Taxation (FCAFC) - taxation - income tax - objections to assessment of tax and penalties dismissed - appeal dismissed (I B G)
Barnes v Lion Finance Pty Ltd (FCA) - bankruptcy - sequestration order - annulment of bankruptcy on conditions (B)
Porlock Pty Ltd (NSWSC) - trusts and trustees - judicial advice - lost trust deed - secondary evidence - trustee entitled to act on letter from former accountant concerning on what trust trustee held property (B)
Panos v FSS Trustee Corporation (NSWSC) - insurance - superannuation - plaintiff not entitled to total and permanent disablements benefit under policy issued by insurer to trustee - claim dismissed (I B)
BHP Billiton Mitsui Coal Pty Ltd v Isdale (No 2) (QSC) - costs - successful applicant in judicial review proceedings to have costs paid by unsuccessful respondents (I B C)
Absolute Analogue Inc v Sundance Resources Ltd (WASCA) - contract - oral contract - erroneous credibility findings - appeal allowed - retrial (I B C)
Frigger v Professional Services Of Australia Pty Ltd (WASCA) - application for leave to appeal by non-parties to primary decision - Court not empowered under s471 Corporations Act 2001 (Cth) to grant leave - application dismissed (I B)
Summaries With Link (Five Minute Read)
Allan J Heasman Pty Ltd v Commissioner of Taxation [2015] FCAFC 119
Full Court of the Federal Court of Australia
Siopis, Davies & Wigney JJ
Taxation - income tax - Administrative Appeals Tribunal affirmed Commissioner’s decision to disallow appellant taxpayer’s objection to assessments of tax and penalties for 1998 and 1999 income years - Tribunal rejected taxpayer’s claim that assessments issued out of time, challenge to disallowance of amounts taxpayer claimed were deductible business expenses, and challenge to imposition of additional tax for intentional disregard of the law - taxpayer appealed against Federal Court’s affirmation of Tribunal’s decision and against its dismissal of related application under s39B Judiciary Act 1903 (Cth) for declaration assessments invalid (s39B application) - deductibility of contributions to employee welfare fund under s8-1 Income Tax Assessment Act 1997 (Cth) - held: contention rejected that Court erred in finding Tribunal reviewing objection to original assessments not amended assessments - contention rejected that assessments not legally effective because it was beyond Commissioner’s power - no error in finding that taxpayer was not entitled to deduction for claimed amounts - Tribunal did not err in holding taxpayer had not discharged burden under s14ZZK Taxation Administration Act 1953 (Cth) of proving additional tax imposed was excessive - appeal against rejection of s39B application failed - appeal dismissed.
AllanJHeasman (I B G)
Barnes v Lion Finance Pty Ltd [2015] FCA 951
Federal Court of Australia
Beach J
Bankruptcy - applicant sought to annul bankruptcy under s153B(1) Bankruptcy Act 1966 (Cth) - first respondent petitioning creditor opposed application - second and third respondent trustees of applicant’s estate also opposed application - applicant contended he was able to pay his debts when they fell due at time of sequestration order and would have satisfied s52(2)(a) - applicant claimed there was irregularity in service of creditor’s petition and hearing of petition should have been adjourned to enable applicant to put forward evidence satisfying s52(2)(a) - ss153B(1) & 309 - held: if facts now known were disclosed on hearing of petition, there would at least have been an adjournment - sequestration order would not have been made - in exercise of discretion Court would not annul bankruptcy except on condition that petitioning creditor’s debt and all other debts be paid or compromised and trustees’ costs and expenses in administration of estate paid in full.
Barnes (B)
Porlock Pty Ltd [2015] NSWSC 1243
Supreme Court of New South Wales
Young AJA
Trusts and trustees - judicial advice - plaintiff was trustee of trust - trust set up in 1957 but not clear who settlor was - trust had substantial assets - no one could find copy of trust deed - trustee sought to be confirmed in its belief as to how it held trust property - whether trustee justified in dealing with trust property in way it proposed - held: there was secondary evidence of former accountant as to on what trust trustee held property - there was evidence that deed actually existed - trustee did not hold property beneficially - best evidence there was as to what was the trusts was accountant’s letter, and trustees would be justified in acting on it - orders made.
Porlock (B)
Panos v FSS Trustee Corporation [2015] NSWSC 1217
Supreme Court of New South Wales
Robb J
Insurance - accident and sickness insurance - plaintiff claimed to be entitled to total and permanent disability benefit (TPD benefit) under insurance policy issued by insurer to trustee in respect of superannuation fund of which plaintiff was member - whether plaintiff entitled to order that insurer pay trustee total and permanent disability benefit - medical evidence - credit - held: plaintiff failed to establish he was incapacitated within definition of TPD in policy - plaintiff failed to establish he was entitled to TPD benefit trustee had claimed on his behalf under policy - claim dismissed.
Panos (I B)
BHP Billiton Mitsui Coal Pty Ltd v Isdale (No 2) [2015] QSC 248
Supreme Court of Queensland
P McMurdo J
Costs - Court made statutory order of review under Judicial Review Act 1991 (Qld) - applicant successful and sought costs on basis they should follow event - second respondents sought that each side should bear own costs - s49 - identification of “the relevant applicant” - financial resources of relevant applicant - public interest - held: proceeding resulted from second respondents’ stance in Land Court which resulted in Land Court making reviewable error of law - second respondents’ case reasonably arguable but applicant had had to bring proceeding and should have its costs paid by the unsuccessful parties.
Absolute Analogue Inc v Sundance Resources Ltd [2015] WASCA 168
Court of Appeal of Western Australia
McLure P; Buss & Mazza JJA
Contract - trial judge held that respondent (Sundance) not contractually obliged to issue 30 million options in Sundance to second appellant - alleged oral contract made between second appellant on appellants’ behalf and two others on Sundance’s behalf - trial judge made adverse general credibility findings against second appellant and did not accept his uncorroborated evidence where contradicted by other evidence or unlikely - general credibility findings challenged on appeal - appellants contended trial judge's failure to accept second appellant’s evidence concerning crucial conversations was against weight of evidence and compelling inferences - appellants also challenged individual findings of fact - held: trial judge erred in findings as to credibility and factual findings - appeal allowed - retrial ordered.
Absolute (I B C)
Frigger v Professional Services Of Australia Pty Ltd [2015] WASCA 167
Court of Appeal of Western Australia
Buss & Murphy JJA
Corporations - applicants sought leave pursuant to s471C Corporations Act 2001 (Cth) to appeal against primary decision concerning costs orders - applicants were not parties to primary decision - held: s471C did not confer power on Court to enable a person who was not party to orders made in curial decision in proceedings in which person was not party to commence appeal - Court would also refuse to grant leave in exercise of its discretion in any event - application dismissed.
Frigger (I B)