Benchmark Special Edition: Thursday, 4 February 2016
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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)
Hillam v Iacullo (NSWCA) - costs - variation of costs orders refused - notice of motion dismissed
Robinson-Murray v Bargshoon (NSWSC) - consumer law - administrative law - erroneous decision by Appeal Panel of Civil and Administrative Tribunal - matter remitted to Tribunal for determination
Elsworthy v ASIC (VSC) - corporations - orders granted for reinstatement of deregistered company
Pittaway v Noosa Cat Australia Pty Ltd (QCA) - contract - construction contract - erroneous dismissal of proceedings for want of prosecution - appeal allowed
Nolan v Nolan (QCA) - judgments and orders - no basis for application of slip rule - application refused
Australian Securities and Investments Commission v Munro (QSC) - corporations - financial services - contravention of section 911A Corporations Act 2001 (Cth) by carrying on financial services business without licence - declarations and injunctions
Clarkson Williams Partners Pty Ltd v Vaughan (ACTCA) - trade practices - erroneous finding of misleading or deceptive conduct against accounting practice - appeal allowed
Summaries With Link (Five Minute Read)
Hillam v Iacullo [2016] NSWCA 1
Court of Appeal of New South Wales
Basten, Ward & Leeming JJA
Costs - Court allowed appellant’s appeal - respondents ordered to pay costs of appeal - respondents sought to vary orders - Court had set aside primary judge’s orders, dismissed proceedings and order payment of costs by respondents - respondents sought to preserve costs order in respect of costs at first instance - respondents also sought clarification of dismissal order by insertion of words “the balance of” - r36.16 Uniform Civil Procedure Rules 2005 (NSW) - held: appellants were seeking that respondents be ordered to pay costs of proceedings at first instance - Court refused order - Court had found appellants should have lost on issues determined by primary judge - quantum of appellants’ claim found to be unsuccessful significantly greater than claims on which they were successful in advance of trial - appellants had benefit of costs orders in respect of application for judgment - notice of motion dismissed.
Robinson-Murray v Bargshoon [2016] NSWSC 14
Supreme Court of New South Wales
McCallum J
Consumer law - administrative law - proceedings arising out of purchase of second-hand car - appeal against decision of Appeal Panel of Civil and Administrative Tribunal of New South Wales in which Panel found that respondent had made a representation as to merchantable quality or fitness for car but decided it had no authority to determine claim against respondent since he was not supplier of goods - held: decision under appeal had been overruled in another case - Court satisfied that heart of plaintiff’s claim was contention respondent was behind sale and accountable for alleged misrepresentations -plaintiffs’ “consumer claim” had never been determined on the merits - appeal allowed - matter remitted to Tribunal.
Elsworthy v ASIC [2016] VSC 14
Supreme Court of Victoria
Derham AsJ
Corporations - plaintiff director sought order under s601AH(2) Corporations Act 2001 (Cth) that Australian Securities and Investment Commission reinstate registration of company - company had been deregistered pursuant s601AB and was not insolvent at time of deregistration - “person aggrieved” - held: plaintiff was person aggrieved by deregistration of company and had properly explained circumstances of its dissolution - good use could be made of order for reinstatement and no one likely to be prejudiced by reinstatement - appropriate case for exercise of discretion to reinstate company - orders for reinstatement made subject to ASIC’s specified conditions.
Pittaway v Noosa Cat Australia Pty Ltd [2016] QCA 4
Court of Appeal of Queensland
Morrison JA; Douglas & North JJA
Contract - construction contract - linked agreements - applicant and respondent entered two linked agreements by which applicant would build shed for respondent and respondent would build boat for applicant - applicant contended he built shed but respondent’s company did not pay full amount as required - applicant also contended respondent did not build boat as required - applicant sued respondent and company for damages for breach of contract - proceedings dismissed for want of prosecution - applicant sought leave to appeal - whether appeal necessary to correct substantial injustice - whether reasonable argument there was error - delay - prejudice - s118(3) District Court of Queensland Act 1967 (Qld) - rr5, 214(2)(e), 280, 389 & 444 Uniform Civil Procedure Rules 1999 (Qld) - held: primary judge erred in finding circumstances warranted dismissal - dismissal of claim amounted to substantial injustice - leave to appeal granted - appeal allowed.
Nolan v Nolan [2016] QCA 5
Court of Appeal of Queensland
Gotterson & Morrison JJA; Boddice J
Judgments and orders - slip rule - Court allowed appellants’ appeal, dismissed respondent’s cross-appeal, set aside orders below and made orders that appellants pay respondent sum - respondent sought variation to orders on basis of slip rule because sum did not accord to 17.5 percent of net assets of farming enterprise - “the net value of assets” - held: no basis to apply slip rule - figure awarded to respondent reflected contribution to common endeavour in respect of net increase in farming enterprise’s assets - application refused - no relevant offer from respondent to be considered on costs - appellants’ informal offer was for higher sum than that awarded to respondent on appeal - however appellants made no formal offer and respondent ultimately successful at trial save for one issue - parties to pay own costs of trial - respondent to pay appellants’ costs of appeal and cross-appeal.
Australian Securities and Investments Commission v Munro [2016] QSC 9
Supreme Court of Queensland
Flanagan J
Corporations - financial services - applicant sought declaratory and injunctive relief pursuant to ss1101B and 1324 Corporations Act 2001 (Cth) for respondents’ conduct in contravention of s911A - applicant alleged respondents conducted financial services business without Australian Financial Services Licence - respondents consented to proposed injunctions and did not oppose declaratory relief - ss19, 24(2), 68(2), 68(3), 76(1) & 76(3) Australian Securities and Investments Commission Act 2001 (Cth) - ss9, 79, 761A, 763A, 763B(a), 766A, 766C(1)(a), 766E, 911A, 1101B & 1324(1) Corporations Act - held: Court satisfied it was appropriate to exercise discretion to make declarations and injunctions - declarations and injunctions made.
Clarkson Williams Partners Pty Ltd v Vaughan [2016] ACTCA 1
Court of Appeal of the Australian Capital Territory
Penfold, Burns & Rangiah JJ
Trade practices - misleading or deceptive conduct - appellant was accounting practice - respondent purchased café business - primary judge found appellant engaged in misleading or deceptive conduct by not disclosing that fair value of business was much less than purchase price - appellant claimed primary judge erred in assessing damages - respondent conceded error but cross-appealed for different alleged error - appellant conceded cross-appeal - appellant also appealed against finding that appellant engaged in misleading or deceptive conduct - s12 Fair Trading Act 1992 (ACT) - held: primary judge erred in finding Mr Clarkson knew business’s fair value was much less than purchase price - appeal allowed - judgment set aside.