| Spence v Rigging Rentals WA Pty Ltd (FCA) - costs - plaintiff very substantially successful in proceedings - cross-claim substantially failed - second and third defendants to pay plaintiff's costs of action - first defendant to pay plaintiff's costs of cross-claim (I B C)
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| Tanamerah Estates Pty Ltd v Tibra Capital Pty Ltd (NSWCA) - corporations - statutory demand - applicant not entitled to commence proceedings because it had not complied with Pt 7, Div 1, r 7.1. I Uniform Civil Procedure Rules 2005 (UCPR) - leave to appeal refused (I B)
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| Collis Finance Pty Ltd v Hertford (NSWSC) - real property - possession - no defence to claim disclosed - defence struck out (B)
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| WIN Corporation Pty Ltd v Nine Network Australia Pty Ltd (NSWSC) - discovery - respondent granted leave to issue notice to produce to applicant in respect of certain documents (I B)
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| Willmott Forests Ltd (Receivers & Managers appointed) (In Liq) v Armstrong Dubois Pty Ltd (VSC) - pleadings - failure to disclose justiciable cause of action - embarrassing pleadings - leave to file further amended statement of claim in current form refused (I B)
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| Fleming v Advertiser-News Weekend Publishing Co P/L (No 2) (SASC) - defamation - defamatory imputation conveyed by publications that plaintiff engaged in criminal sexual behaviour was substantially true - plaintiff's claim dismissed - judgment for defendants (I)
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| Rankilor v City of South Perth (WASCA) - negligence - trip and fall on protruding paver - no breach of duty of care by City - appeal dismissed (I C)
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Dear Subscriber
1.This Benchmark Television broadcast is with Joshua Thomson SC in discussion with Ian Benson on exclusion and consequential loss clauses in commercial contracts.
2.Can liability be totally excluded – what about fraud – unconscionability – four corners rule – particular remedies – direct loss, consequential loss – a very useful session from an acknowledged authority and author.
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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| Joshua Thomson SC in discussion with Ian Benson on Exclusion and Consequential Loss Clauses in Commercial Contracts |
| Can liability be totally excluded – what about fraud – unconscionability – four corners rule – particular remedies – direct loss, consequential loss – a very useful session from an acknowledged authority and author. |
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| Summaries With Link (Five Minute Read) |
Spence v Rigging Rentals WA Pty Ltd [2016] FCA 154
Federal Court of Australia
Gilmour J
Costs - Court gave judgment for plaintiff in proceedings - second and third defendants ordered to purchase half of plaintiff's shares from third defendant - first defendant ordered to pay amount to plaintiff - plaintiff sought costs of action and cross-claim - defendants sought orders for apportionment of costs - ss43 & 52 Federal Court of Australia Act 1976 (Cth) - r40.32 Federal Court Rules 2011 (Cth) - held: Court not prepared to apportion costs on primary claim - plaintiff had very substantial success on primary claim and should have costs - cross-claim substantially failed - cross-claim did not warrant apportionment of costs - first defendant to pay plaintiff's costs of cross-claim.
Spence (I B C) |
Tanamerah Estates Pty Ltd v Tibra Capital Pty Ltd [2016] NSWCA 23
Court of Appeal of New South Australia
McColl & Meagher JJA
Corporations - statutory demand - respondent issued statutory demand to applicant under s459E Corporations Act 2001 (Cth) - proceedings commenced by applicant's director to set demand aside - director not separately a plaintiff in proceedings pursuing cause of action - applicant did not retain solicitor to commence claim - respondent sought declaration applicant not entitled to commence proceedings because it failed to comply with Div 1, Pt 7, r7.1 Uniform Civil Procedure Rules 2005 (UCPR), and stay of proceedings following which proceedings would be dismissed if rule not complied with - primary judge stayed proceeding to enable applicant to obtain legal representation - applicant indicated it did not propose to retain solicitor - primary judge dismissed proceeding - whether company a “person under legal incapacity” - whether director a “tutor” and “plaintiff” - held: applicant's proposed appeal did not have arguable prospects of success - leave to appeal refused.
Tanamerah (I B) |
Collis Finance Pty Ltd v Hertford [2016] NSWSC 149
Supreme Court of New South Wales
Davies J
Real property - possession - claim for possession of shops mortgaged to plaintiff - self-represented defendants filed defence to claim - defendants' son given leave to appear for parents - son contended copies of mortgages not provided to parents and that a plan had been put forward to plaintiff which plaintiff had not responded to - held: no defence to claim disclosed - defence struck out.
Collis Finance (B) |
WIN Corporation Pty Ltd v Nine Network Australia Pty Ltd [2016] NSWSC 153
Supreme Court of New South Wales
Meagher JA
Discovery - proceedings concerning Program Supply Agreement between parties - respondent sought leave to issue notice to produce to applicant or order for discovery - Practice Note No. SQ Eq 11 - held: description of documents in original notice too broad - application granted in respect of certain documents.
WIN Corporation (I B) |
Willmott Forests Ltd (Receivers & Managers appointed) (In Liq) v Armstrong Dubois Pty Ltd [2016] VSC 61
Supreme Court of Victoria
Derham AsJ
Pleadings - plaintiff in liquidation operated managed investment schemes - plaintiff sued former auditor for failing to conduct proper audit of its financial statements, and provide audit reports pursuant to Corporations Act 2001 (Cth) - plaintiff sought leave to file and serve proposed further amended statement of claim (FASOC) - held: FASOC did not seek to revive claims made in indorsement to writ subsequently abandoned in statement of claim - FASOC did not make allegations beyond perimeter set by indorsement except claim under s1041H - claim not statute barred when introduced in statement of claim - no good reason amendment should not be allowed - however FASOC failed to disclose justiciable causes of action and certain paragraphs were embarrassing - leave not granted to file FASOC in current form.
Willmott (I B) |
Fleming v Advertiser-News Weekend Publishing Co P/L (No 2) [2016] SASC 26
Supreme Court of South Australia
Gray AJ
Defamation - defences - justification - contextual truth - action arising from publication of articles in newspapers with common theme that plaintiff was subject of Paedophile Task Force investigation - plaintiff's claim for damages included damages for personal injury arising from publication of defamatory matter - held: publications conveyed defamatory imputation that plaintiff engaged in criminal sexual behaviour while a priest - defendants established that defamatory imputation was substantially true - plaintiff's claim dismissed - judgment for defendants.
Fleming (I) |
Rankilor v City of South Perth [2016] WASCA 29
Court of Appeal of Western Australia
Buss, Newnes & Murphy JJA
Negligence - appellant injured when she fell after tripping on protruding paver - appellant sued respondent for failure to maintain footpath to prevent tree roots from lifting the pavers - ss5B & 5Z Civil Liability Act 2002 (WA) - ss9.56 & 9.57 Local Government Act 1995 (WA) - s5(4)(a) Occupiers' Liability Act 1985 (WA) - primary judge dismissed claim - held: open to primary judge to find respondent did not breach duty of care - appeal dismissed.
Rankilor (I C) |
