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


Wednesday, 4 February 2015

Executive Summary (One Minute Read)
Miao v Michell (FCA) - bankruptcy - bankrupt permitted to travel overseas subject to undertaking and conditions
JR Consulting & Drafting Pty Ltd v Cummings (NSWSC) - costs - separate determination of liability - issue of costs not deferred until quantification of loss
Z487 Ltd v Skelton (QSC) - private international law - contract - exclusive choice of court agreement - stay refused
Kasewieter v Galligan (SASC) - summary judgment - order for sale of property - extension of time to bring cross-action for property adjustment order refused
Bride v The Registrar of Titles (WASC) - real property - vexatious litigant - extension of caveat refused
Summaries With Link (Five Minute Read)
Miao v Michell [2015] FCA 22
Federal Court of Australia
Beach J
Bankruptcy - applicant applied pursuant to s178(1) Bankruptcy Act 1966 (Cth) to review trustee’s to refuse consent for her to overseas travel in accordance with s272(1)(c) - Federal Circuit Court judge refused application - held: consent to overseas travel should be given - reasons for overseas travel were genuine - trip was only for short time - applicant prepared to give undertaking to Court to return to Australia on request by trustee - not a situation where there might be considered to be incentives for applicant not to return - given applicant had now completed Statement of Affairs, overseas trip would not unduly impede administration of estate - although trustee’s decision on material before him was reasonable, changed circumstances justified setting aside decision - applicant permitted to leave Australia subject to undertakings and conditions.
JR Consulting & Drafting Pty Ltd v Cummings [2015] NSWSC 10
Supreme Court of New South Wales
Black J
Costs - proceedings related to ownership and control of software used in design and manufacture of items used in construction of buildings - principal judgment determined separate question of liability - defendants and cross-claimants substantially successful - whether Court should exercise discretion to make order for costs of hearing as to liability, or defer order until after quantification of loss determined - principles applicable to cases involving multiple parties and issues - s98 Civil Procedure Act 2005 (NSW) - held: question of costs of liability stage should not be deferred - defendants did not succeed on all issues - departure from general rule that costs follow event - costs orders modified
JR Consulting & Drafting Pty Ltd
Z487 Ltd v Skelton [2014] QSC 309
Supreme Court of Queensland
Atkinson J
Private international law - first defendant was horticulturalist who bred kiwifruit in New Zealand - horticulturalist entered licence agreement with plaintiff company - director of company who negotiated agreement lived and worked in Australia - company sought declaration license agreement not validly terminated - horticulturalist sought declaration pursuant to s17 Trans-Tasman Proceedings Act 2010 (Cth) that claim not properly starte­­­d for want of jurisdiction, order setting aside claim, and stay of proceeding, on ground New Zealand court was more appropriate forum - held: there was exclusive choice of court agreement between parties which designated Australian court to determine matters in issue - exclusive choice of court agreement not null and void - pursuant to s20(1)(b) Court must not stay proceeding before it - horticulturalist not entitled to any relief - application dismissed.
Z487 Ltd
Kasewieter v Galligan [2015] SASC 5
Supreme Court of South Australia
Dart J
Summary judgment - parties were formerly in domestic relationship - parties were joint owners of residential property - plaintiff sought judgment in claim for sale of property and that net proceeds of sale be divided equally between parties - plaintiff also sought that defendant’s cross-action under Domestic Partners Property Act 1996 (SA) be dismissed on grounds it was substantially out of time and there was no justification for extending time - good reason to the contrary - onus - delay - held: no reasonable basis for defending plaintiff’s claim made out - order made for sale of property - no reasonable basis for extension of time to make cross-claim for property adjustment order - summary judgment granted.
Bride v The Registrar of Titles [2015] WASC 11
Supreme Court of Western Australia
Edelman J
Real property - caveats - applicant sought extension of caveat over property of second defendants in relation to which he was a vexatious litigant - 138C Transfer of Land Act 1893 (WA) - balance of convenience - held: caveat should not be extended - on the evidence, applicant did not have claim which has or may have substance - if applicant had claim it was weak - balance of convenience did not favour extension of caveat - apart from weakness of claim applicant had offered no undertaking as to damages - application dismissed.