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

Insurance, Banking, Construction & Government

Monday, 3 November 2014
Executive Summary (One Minute Read)
Curtis v Singtel Optus Pty Ltd (FCAFC) - bankruptcy - challenge to validity of electronically issued bankruptcy notice failed (B)
Born Brands Pty Ltd v Nine Network Australia Pty Ltd (NSWCA) - defamation - injurious falsehood - claims by company and designers of baby product failed (I)
Banovic v United Super Pty Ltd (NSWSC) - superannuation - insurance - injured worker entitled to total and permanent disability benefit (I B C)
In the matter of Optimisation Australia Pty Ltd (No 2) (NSWSC) - corporations - oppression - directors restrained from paying company expenses without notice to other director - company to advance surplus funds on loan account to directors (B)
In the matter of Tricon Group Pty Ltd (NSWSC) - stay - costs - statutory demand withdrawn by consent - anti-suit injunction refused (B)
Molinara v Perre Bros Lock 4 Pty Ltd (SASCFC) - loan agreement - misleading or deceptive conduct - value of lost opportunity to recover loan - appeal allowed in part (I B)
Roche v Deputy Commissioner of Taxation (WASCA) - income tax - penalties - summary judgment for Commissioner - appeal dismissed (B)
Summaries With Link (Five Minute Read)
Curtis v Singtel Optus Pty Ltd [2014] FCAFC 144
Full Court of the Federal Court of Australia
Mansfield, Gleeson & Beech JJ
Bankruptcy - Official Receiver electronically issued bankruptcy notice under s41(1) of Bankruptcy Act 1966 (Cth) in respect of judgment debt owed by debtor to first creditor - debtor unsuccessfully challenged validity of notice in Federal Circuit Court of Australia - debtor claimed bankruptcy notice invalid because it did not have a copy of relevant judgment or order attached to it at time of issue - regs 4.01 & 4.02 Bankruptcy Regulations 1966 (Cth) - attached - held: challenge to validity of notice failed - Act and Regulations required that, at time of issue, a bankruptcy notice must have attached to it a copy of the relevant judgment or order - bankruptcy notice, albeit electronically created and issued, had attached to it a copy of the relevant judgment at the time of issue - alternatively, there was substantial compliance with that requirement - appeal dismissed.
Curtis (B)
Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369
Court of Appeal of New South Wales
Basten & Meagher JJA; Tobias AJA
Defamation - product designers established company to sell baby product - designers and company sought damages for defamation arising from television broadcast concerning risks of baby devices - company also sought damages for injurious falsehood - trial judge held company did not discharge onus of establishing it was an excluded corporation within meaning of s9 Defamation Act 2005 (NSW) - trail judge found company had no cause of action in defamation and was not satisfied any imputations were carried - trial judge dismissed claim for injurious falsehood - Court granted applicants leave to appeal from findings on whether defamatory imputations were conveyed, admissibility of expert evidence, defences of substantial truth and contextual truth, and standing of applicant to sue in defamation - held: no error in rejecting claim for injurious falsehood - evidence indicated that corporate applicant had standing to sue as it had fewer than 10 employees - imputations were conveyed - trial judge erred in finding imputations (if conveyed) were not defamatory because they only concerned the product - no error in finding that the contextual implications pleaded by respondent were substantially true - no basis for rejecting defence of contextual truth to imputation - appeal with respect to claim in defamation dismissed - appeal dismissed.
Born Brands Pty Ltd (I)
Banovic v United Super Pty Ltd [2014] NSWSC 1470
Supreme Court of New South Wales
Hall J
Superannuation - insurance - plaintiff injured in accident while working as labourer - plaintiff claimed a Total and Permanent Disability (TPD) benefit against trustee of superannuation fund and insurer - trust deed and insurance policy provided that, in order to be eligible for TPD benefit, both trustee and insurer must form opinion that claimant was unlikely ever to be able to engage in any occupation for which he was suited by reason of his or her education, training or experience - although it was clear on medical evidence that plaintiff was not fit to return to heavy labouring work, trustee and insurer concluded there was other work for which he had a retained capacity - held: hat no reasonable trustee or insurer, applying the correct test to the available material, could have reached conclusions that trustee and insurer reached - Court satisfied worker satisfied definition of TPD within meaning of insurance policy - worker entitled to be paid relevant amount.
Banovic (I B C)
In the matter of Optimisation Australia Pty Ltd (No 2) [2014] NSWSC 1394
Supreme Court of New South Wales
Brereton J
Corporations - oppression suit in respect of first defendant company - directors were plaintiff, second and third defendants - plaintiff' claimed he had been excluded from management and employment by company - plaintiff sought leave to further amend statement of claim in proceedings, access to documents produced pursuant to previous order, order that company pay dividend of $300,000 to directors of company, and order that defendants notify plaintiff of any payments they intended to cause company to make in excess of $5,000 excluding staff payments - held: application for leave to further amend statement of claim adjourned - access to documents granted - company ordered to advance surplus funds on loan account to directors - defendant to be restrained from paying company expenses without notice to plaintiff.
In the matter of Optimisation Australia Pty Ltd (B)
In the matter of Tricon Group Pty Ltd [2014] NSWSC 1237
Supreme Court of New South Wales
Brereton J
Costs - stay - corporations - plaintiff sought to set aside creditor's statutory demand on basis of genuine dispute - defendant withdrew statutory demand and consented to relief sought and costs of application - plaintiff sought order staying any other proceedings instituted by defendant against plaintiff until those costs paid - held: there were no other proceedings before Court that could be subject of a stay - plaintiff was effectively seeking an anti-suit injunction preventing defendant from instituting proceedings against it in any court until costs paid - Court not aware of any precedent for such an order - no basis for Court to grant stay or to restrain institution of proceedings that had not yet been instituted by unsuccessful defendant.
In the matter of Tricon Group Pty Ltd (B)
Molinara v Perre Bros Lock 4 Pty Ltd [2014] SASCFC 115
Full Court of the Supreme Court of South Australia
Kourakis, Nicholson & Parker JJ
Trade practices - misleading or deceptive conduct - loan agreement - respondent lender entered into agreement to lend money to company - appellant was a principal of company - appellant negotiated extension of loan - company defaulted on loan - company deregistered - lender claimed damages pursuant to ss12CA(1) & 12DA(1) Australian Securities and Investment Commission Act 2001 (Cth) - trial judge found appellant misrepresented financial position of company and that, but for misrepresentations, loan capital would have been successfully recovered by respondent taking legal proceedings against company - held: trial judge’s finding that lender would have recovered loan principal in full had it sought recovery in lieu of entering into further extension not supported by evidence - value of lender’s lost opportunity to recover loan was no more than 40% of face value of loan - opportunity had become worthless by the time the loan fell due - having regard to amount already paid by the appellant, respondent entitled to an award of damages in amount of $37,500 - appeal allowed to that extent.
Molinara (I B)
Roche v Deputy Commissioner of Taxation [2014] WASCA 194
Court of Appeal of Western Australia
McLure P; Newnes & Murphy JJA
Summary judgment - Commissioner commenced proceedings against appellant claiming penalties imposed pursuant to s222AOC Income Tax Assessment Act 1936 (Cth) and s269-20 Taxation Administration Act 1953 (Cth) (TAA) - Master granted Commissioner summary judgment - appellant claimed notices did not constitute valid written notices - whether posting was effective service - whether fresh notice must be served if estimate of unpaid liability in original notice reduced under s268-35(1) TAA - presumption as to signatures - held: no error in Masters’ decision to grant summary judgment - appeal dismissed.
Roche (B)