Daily Insurance: Wednesday, 2 March 2016
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AR Conolly Company Lawyers.
A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Daily Insurance

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Executive Summary (One Minute Read)
Tipto Pty Ltd v Yuen (NSWCA) - employment law - restraint of trade - dismissal of claims for breach of employment agreement and confidentiality agreement - leave to appeal refused
Macquarie International Health Clinic Pty Ltd v Sydney Local Health District; Sydney Local Health District v Macquarie Health Corporation Ltd; Macquarie International Health Clinic Pty Ltd v City of Sydney Council (No 9) (NSWSC) - environment and planning - town planning - development consent for hospital and works at site had not lapsed - plaintiff entitled to declaration
Djime v Le (VSC) - summary judgment - judicial review - appellant convicted of resisting arrest and of assault - no error in summary dismissal of judicial review proceedings - appeal dismissed
Coles v Dormer (No 2) (QSC) - damages - breach of copyright in house plans - determination of balance of relief following remedial works - additional and compensatory damages ordered - damages assessed at $70 000
Mayfair Property Holdings Pty Ltd v Southland Packers Pty Ltd (QSC) - contract for sale and purchase of land - separate questions - contract not terminated by operation of special condition - defendant breached contract
Wong v Reid (WASC) - administrative law - real property - strata titles - applicant order to remove wall erected on common property and to reconstitute garden - leave to appeal refused
Dear Subscriber

1. This Benchmark Television broadcast is with Duncan Macfarlane, barrister of Sydney in discussion with Ian Benson.

2. Is a party strictly limited to its pleaded case? What is appealable surprise? Claims for bias – a trial judge need not always provide extensive reasons. This is a reasonably short session - under 14 minutes.

3. For Benchmark CLE subscribers we have prepared notes which we will forward to them at their request.

4. Also for Benchmark CLE subscribers at their request we will forward them an advice notice evidencing when they accessed this production.

5. We also have a series of questions for Benchmark CLE subscribers which we will send to them at their request.

6. We will be in the next few days publishing some productions which are exclusively for Benchmark CLE subscribers.

7. You should watch on Wi-Fi to avoid excess data usage charges.

Warm regards
Alan Conolly for Benchmark
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Benchmark Television
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Duncan Macfarlane, Barrister of Sydney in discussion with Ian Benson on Procedural Fairness
Is a party strictly limited to its pleaded case? What is appealable surprise? Claims for bias – a trial judge need not always provide extensive reasons. This is a reasonably short session - under 14 minutes.
Summaries With Link (Five Minute Read)
Tipto Pty Ltd v Yuen [2016] NSWCA 21
Court of Appeal of New South Wales
Beazley P & Emmett AJA
Employment law - restraint of trade - first respondent employed by first applicant under employment agreement - applicants sued respondents alleging first respondent breached employment agreement and confidentiality agreement - primary judge dismissed claims - applicants sought leave to appeal - Restraints of Trade Act 1976 (NSW) - held: no error in primary judge's conclusions - applicants failed to raise any question of principle - leave to appeal refused.
Tipto
Macquarie International Health Clinic Pty Ltd v Sydney Local Health District; Sydney Local Health District v Macquarie Health Corporation Ltd; Macquarie International Health Clinic Pty Ltd v City of Sydney Council (No 9) [2016] NSWSC 155
Supreme Court of New South Wales
Kunc J
Environment and planning - town planning - determination whether development consent which Land and Environment Court granted for hospital and works at site had lapsed - s95(4) Environmental Planning and Assessment Act 1979 (NSW) - statutory construction - held: “Relevant Works” were “physically commenced” pursuant to s95(4) on land to which consent applied - consent had not lapsed - plaintiff entitled to declaration.
Macquarie International
Djime v Le [2016] VSC 48
Supreme Court of Victoria
Zammit J
Summary judgment - judicial review - self-represented litigant - appellant found guilty in Magistrates' Court of resisting police and of assault - appellant sought judicial review of decision - Associate Justice dismissed proceeding under s63 Civil Procedure Act 2010 (Vic) - Associate Justice gave summary judgment for respondent - applicant appealed against judgment - whether erroneous decision to grant summary judgment - held: Court not satisfied there was jurisdictional error - no denial of procedural fairness - no error by Associate Justice - appeal dismissed.
Djime
Coles v Dormer (No 2) [2016] QSC 28
Supreme Court of Queensland
Henry J
Damages - copyright - Court found defendants infringed plaintiff's copyright in house plans - Court gave judgment for plaintiff and granted injunction requiring defendants to conduct remedial works to remove visible indicia of the replication of plaintiff's house, from the house they had constructed - remedial works now completed - determination of balance of relief to be ordered - whether compensatory and/or additional damages appropriate - ss115(2) & 115(4) Copyright Act 1968 (Cth) - held: compensatory and additional damages awarded - damages assessed at $70 000.
Coles
Mayfair Property Holdings Pty Ltd v Southland Packers Pty Ltd [2016] QSC 27
Supreme Court of Queensland
Bond J
Contract for sale of land - leases and tenancies - defendant vendor and plaintiff purchaser contracted for sale and purchase of land (property) - property was service station subject of registered lease between defendant as lessor and BP Australia as lessee - contract for sale contained special condition acknowledging lease contained pre-emptive right of purchase of property in lessee's favour and providing that if lessee availed itself of right then contract terminated - defendant contended contract terminated pursuant to term and settled sale contract on basis lessee exercise pre-emptive right - plaintiff contended defendant breached contract and sued for breach - determination of separate questions whether contract had come to end pursuant to term and whether defendant in breach of contract - construction of contract - held: contract did not come to an end pursuant to term - defendant was in breach of contract.
Mayfair
Wong v Reid [2016] WASC 59
Supreme Court of Western Australia
Beech J
Administrative law - real property - strata titles - self-represented litigant - State Administrative Tribunal ordered applicant to remove wall he constructed on strata scheme's common property and to reconstitute garden on common property which it found applicant had removed - applicant sought leave to appeal - s105 State Administration Tribunal Act 2004 (WA) - ss35, 81 & 83 Strata Titles Act 1985 (WA) - held: applicant's grounds of appeal did not raise any arguable question of law - leave to appeal refused.
Wong