Daily Banking: Wednesday, 2 December 2015
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AR Conolly Company Lawyers.
A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Daily Banking

Executive Summary (One Minute Read)
Bob Jane Corporation Pty Ltd v ACN 149 801 141 Pty Ltd (FCA) - bias - contempt - application for contempt orders transferred to another judge on basis of previous findings as to credibility - application granted
Vartuli v Chief Commissioner of State Revenue (NSWCA) - taxes and duties - cattle-farming business - rural lands used for primary production exemption - objections to land tax assessments disallowed - appeal dismissed
Smilevska v Smilevska (NSWSC) - trusts and trustees - first defendant was “a person under legal incapacity” - first defendant required a tutor - directions made for nomination and appointment of a tutor or tutors
Bassal v Savills (NSW) Pty Ltd (NSWSC) - pleadings - contract - tort - plaintiffs granted leave to amend originating process against leasing broker
McGowan v Hills Ltd (Ruling No 1) (VSC) - conflict of laws - negligence - plaintiff fell from allegedly defective ladder in New South Wales - place of manufacture of ladder was Queensland - cause of action governed by law of Queensland
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Summaries With Link (Five Minute Read)
Bob Jane Corporation Pty Ltd v ACN 149 801 141 Pty Ltd [2015] FCA 1343
Federal Court of Australia
Besanko J
Bias - contempt - applicant sought judge’s disqualification from hearing application for contempt orders against fourth respondent and order that application be transferred to another judge - held: judge concluded he should disqualify himself on basis that judge had previously made findings in relation to fourth respondent’s credibility and there was sufficient prospect credibility would be in issue in proceeding - application to be transferred to another judge - application granted.
Bob Jane Corporation
Vartuli v Chief Commissioner of State Revenue [2015] NSWCA 372
Court of Appeal of New South Wales
Meagher, Ward & Gleeson JJA
Taxes and duties - exemption for rural lands used for primary production - appellants conducted cattle business on land - Chief Commissioner assessed appellant for land tax - appellants’ objections to assessments disallowed - appellants sought review - primary judge rejected challenge to assessments - primary judge found that the requirement that primary production use of land have “a significant and substantial commercial purpose or character” pursuant to under s10AA(2)(a) Land Tax Management Act 1956 (NSW) was not met - appellants appealed - ss585, 586, 587, 591, 594, 597 Local Government Act 1993 (NSW) - held: complaint misconceived that primary judge misconstrued decision in Maraya Holdings Pty Ltd v Chief Commissioner of State Revenue [2013] NSWCA 40 - contention rejected that test for significance or substantiality under s10AA(2)(a) required comparison with competitor farms - contention rejected concerning findings as to significance of minimal profits - finding that appellant’s primary motivation was enjoyment of work open on evidence - finding in relation to lack of profitability open on evidence- no error in approach to historical profits - no error in considering alternative test under character limb of s10AA(2)(a) - appeal dismissed.
Smilevska v Smilevska [2015] NSWSC 1794
Supreme Court of New South Wales
Slattery J
Trusts and trustees - “a person under legal incapacity” - plaintiff sought declaration that first defendant held property on constructive trust for plaintiff and husband as tenants in common in equal shares - counsel for plaintiff contended first defendant was “a person under legal incapacity” under s3 Civil Procedure Act 2005 (NSW) and Pt 7, Div 4.Uniform Civil Procedure Rules 2005 (NSW) - held: first defendant was “a person under legal incapacity” - first defendant required a tutor to be appointed for her in proceedings, notwithstanding she could act through attorney - directions made to facilitate appointment of tutor.
Bassal v Savills (NSW) Pty Ltd [2015] NSWSC 1779
Supreme Court of New South Wales
Button J
Pleadings - contract - tort - plaintiffs and companies with which they were associated sought to develop land as shopping centre - plaintiffs retained defendant leasing broker under agreement to find and introduce potential tenants - plaintiffs filed statement of claim in 2011 - plaintiffs alleged defendant breached duty of care by failure to implement adequate leasing strategy and structure, and failed to provide services under agreement with reasonable care, skill and diligence - whether plaintiffs should be granted leave to file further iteration of originating process many years after first filing statement of claim -prejudice - interests of justice - delay - held: no evidence either plaintiff delayed matter personally - if leave refused plaintiffs prohibited from pursuing asserted claim as they saw fit. - not in interests of justice to refuse leave - matter must move towards resolution promptly - leave to amend statement of claim granted.
McGowan v Hills Limited (Ruling No 1) [2015] VSC 674
Supreme Court of Victoria
T Forrest J
Conflict of laws - negligence - plaintiff alleged that he fell from a defective ladder in New South Wales during course of his employment with second defendant company - ladder manufactured by first defendant company in Queensland, and purchased by plaintiff in Victoria - substantive law governing plaintiff’s claim for damages against first defendant - held: plaintiff’s case was that first defendant had manufactured defective product and plaintiff was injured due to the defects - alleged duty related to safety of manufactured product - alleged breaches concerned aspects of ladder’s manufacture - place of manufacture Queensland - Queensland was where substance of cause of action arose - common law referable to Queensland was substantive law governing plaintiff’s claim.