A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.


Wednesday, 1 October 2014
Executive Summary (One Minute Read)
Falkingham v Peninsula Kingswood Country Golf Club Ltd (VSCA) - corporations - no injunction to restrain dissipation of proceeds of sale of land
Ramus v Continence Foundation of Australia Ltd (VSC) - employment contract - no repudiation by employer - position not redundant - appeal dismissed
Jensen v RQYS Marina Ltd (QSC) - corporations - statutory derivative action - leave to commence proceedings on behalf of company refused
Pisano v Health Solutions (WA) Pty Ltd (WASC) - contract - credentialling agreement did not grant rights of practice - surgeon's claims dismissed
Summaries With Link (Five Minute Read)
Falkingham v Peninsula Kingswood Country Golf Club Ltd [2014] VSCA 235
Court of Appeal of Victoria
Kyrou JA & Garde AJA
Corporations - oppression - appeal lodged against trial judge's refusal to undo merger of golf clubs - appellant sought interlocutory injunction restraining company from dissipating proceeds of sale of land pending appeal - land had been sold to arm's length purchaser following resolution passed by company's directors - held: injunction would seriously interfere with company's purposes to repay debt and establish future fund - if injunction granted, there were very real risks of significant losses to company - undertaking for damages required from appellants would be large - no evidence of appellant's financial capacity - Court not satisfied injunction would reduce risk of injustice if it turned out it should not have been granted - Court not satisfied balance of convenience favoured injunction - summons dismissed.
Ramus v Continence Foundation of Australia Ltd [2014] VSC 477
Supreme Court of Victoria
Williams J
Employment contract - bias - appellant sued former employer in Magistrates' Court claiming damages for alleged repudiation of employment and a redundancy payment under s119(1)(a) Fair Work Act 2009 (Cth) - Magistrate dismissed claim - held: no bias on grounds of excessive interruption - Magistrate did not misstate test or apply incorrect test to determine whether employer had repudiated appellant's contract of employment - Magistrate did not fail to apply test for redundancy - Magistrate's findings of no repudiation of employment contract and no redundancy open on the evidence - appeal dismissed.
Jensen v RQYS Marina Ltd [2014] QSC 243
Supreme Court of Queensland
Applegarth J
Corporations - statutory derivative action - applicants were berth holders in marina - applicants required to be members of a company which operated marina and which existed to support members of Royal Queensland Yachting Squadron - applicants sought leave pursuant to s237 Corporations Act 2001 (Cth) to bring enormously complex proceeding on behalf of company against two other companies, and numerous former and current directors of company - proceeding would cost company hundreds of thousands of dollars to litigate - held: proposed claims did not have reasonable prospects of success - applicants had not offered any personal indemnity or undertakings to protect company against adverse costs orders in event that all or part of proposed proceeding unsuccessful - company exposed to substantial prejudice of incurring costs and risk of adverse costs order - much of the declaratory relief sought was of no practical benefit to company - applicants did not discharge onus to satisfy Court it was in the best interests of company to commence proposed proceeding - application dismissed.
Pisano v Health Solutions (WA) Pty Ltd [2014] WASC 356
Supreme Court of Western Australia
McKechnie J
Contract - plaintiff was surgeon who was accredited and accorded clinical privileges at health campus - campus stopped referring public patients to surgeon or making theatres available to him - surgeon sued campus for a continuation of rights which he said he enjoyed under a combination of letters and bylaws - held: documents relied on by surgeon constituted an agreement between surgeon and campus - extent of agreement was simply to grant clinical privileges - the agreement was a "ticket providing entry to the showground" but did not give "the right to ride any particular attraction" - such particular rights would need to be granted by a separate agreement - credentials did not specify scope of work or make-up of clinical practice - claims dismissed.