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


Thursday, 2 October 2014
Executive Summary (One Minute Read)
Ekes v Commonwealth Bank of Australia (NSWCA) - estoppel - earlier Federal Court proceedings - guarantor permitted to file defence and cross-claim
Kino v Prestige Philately (VSC) - conversion - sale of goods - misappropriated stamps on-sold to innocent purchaser - estoppel not established
Bill Express Ltd v Pitcher Partners (a Firm) (VSC) - corporations - negligence - no order referring questions to expert accountant as special referee
Summaries With Link (Five Minute Read)
Ekes v Commonwealth Bank of Australia [2014] NSWCA 336
Court of Appeal of New South Wales
Bathurst CJ, Beazley P & Emmett JA
Estoppel - bank sued guarantor for company's debt - primary judge struck out guarantor's defence, refused leave to file amended defence, and entered judgment for Bank - earlier Federal Court proceedings were set down for hearing but dismissed by agreement - held: primary judge erred in striking out defence and refusing leave to file proposed defence and cross-claim - not so obviously untenable that it could not possibly succeed - issue estoppel, Anshun estoppel, and abuse of process did not apply - loss from loan advances a separate and distinct loss from loss suffered by company - guarantor demonstrated extraordinary dilatory conduct and flagrant disregard for Court's directions - however, because defence should not have been struck out ,relative prejudice in allowing additional claims in cross-claim would be limited.
Kino v Prestige Philately [2014] VSC 469
Supreme Court of Victoria
Vickery J
Conversion - Kino was sole beneficiary of deceased's residual estate - Will provided for stamp collection to form part of residual estate - stamp collection distributed to Kino - Kino claimed art dealer misappropriated stamps and certificates - art dealer had sold stamps and certificates to collector - stamps were to be offered for sale through auctioneer - Kino claimed ownership and sought delivery up of stamps - collector claimed that, because plaintiff did not report stamps were missing to Australian Philatelic Traders Association, she was estopped from denying art dealer's authority to sell stamps - s27 Goods Act 1958 (Vic) and/or s26 Sale of Goods Act 1923 (NSW) - held: art dealer misappropriated stamps and purported to on-sell them - nemo dat rule would apply unless estoppel established - estoppel not established - collector's and auctioneer's cross-claims against art dealer succeeded - Court to hear parties on appropriate orders including delivery up of stamps, and quantum of damages to be paid to Kino, auctioneer and collector.
Bill Express Ltd v Pitcher Partners (a Firm) [2014] VSC 482
Supreme Court of Victoria
Macaulay J
Corporations - negligence - auditors - company in liquidation sued former auditors who audited company's financial statements in different financial years - company in liquidation claimed damages from each firm due to their allegedly defective audits - company sought order referring questions to a special referee for determination concerning correct application of the Australian Accounting Standards made pursuant to s334 Corporations Act 2001 (Cth) to accounting treatment of particular computer terminals in company's financial statement - held: Court not persuaded it was appropriate to refer questions to special referee - real risk that process would cause more delay and cost than it would avoid - issue which company sought to have decided by expert accountant involved question of law of proper construction of Accounting Standards - more appropriate that a judge determine question rather than a special referee.
Bill Express Ltd