Banking Wednesday, 4 March 2015 View in browser

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


Executive Summary (One Minute Read)
Gooley v Motasea Pty Ltd (NSWCA) - corporations – onus to show proof of membership of private company not discharged – appeal dismissed
Agripower Barraba Pty Ltd v Blomfield (NSWCA) – real property – fixtures - ownership and entitlement to possession of items on land – appeal allowed in part
McCarthy v National Australia Bank Ltd (NSWCA) – possession – default judgment – adjournment and interim stay granted
Sharkey v Mayahi-Nissi (NSWSC) – injunction – property dispute – party restrained from leaving country and to deliver up passports
Choice Planning Pty Ltd v Mider @ Franklin Street Pty Ltd (VSC) – freezing orders – claim for loan debt and profit share - transfer of assets – freezing orders granted
Queensland Bulk Handling Pty Ltd v Peabody (Wilkie Creek) Pty Ltd (QSC) – contract – agreement for terms of use of facility – parties bound by option term
QUBE Logistics (Vic) Pty Ltd v United Equipment Pty Ltd (WASC) – corporations – statutory demand – demand set aside
Summaries With Link (Five Minute Read)
Gooley v Motasea Pty Ltd [2015] NSWCA 31
Court of Appeal of New South Wales
Gleeson & Leeming JJA; Bergin CJ in Eq
Corporations - appellant sought declarations as to membership of company - common ground share register lost and that only if appellant’s name entered on company’s share register was she a member - appellant relied on ASIC return lodged by father which stated appellant had become shareholder - father stated at trial return completed erroneously - appellant failed to persuade primary judge that share register had been in existence and her name entered in it - primary judge concluded appellant did not demonstrate entitlement to declaration that she was member of company - ss9, 231, 319, 352 Corporations Act 2001 (Cth) - inferential reasoning - held: given conflicting recollections, appellant’s imprecise evidence, and improbabilities of entry in share register having been made, primary judge correct to hold appellant did not discharge onus of proof borne - appeal dismissed.  

Agripower Barraba Pty Ltd v Blomfield [2015] NSWCA 30
Court of Appeal of New South Wales
Bathurst CJ, Beazley P & Sackville AJA
Real property - fixtures - energy company sought declaration it was true owner of plant and equipment on land and orders to permit removal of items - occupiers of property agreed if disputed items were not fixtures they would permit their removal from property – appellant challenged primary judge’s finding disputed items were fixtures – quicquid plantatur solo solo cedit - intention of parties – degree of annexation - held: certain disputed items should not be regarded as fixtures – appeal allowed in part – declaration made that appellant was owner of disputed items and entitled to immediate possession thereof.
Agripower Barraba Pty Ltd
McCarthy v National Australia Bank Ltd [2015] NSWCA 32
Court of Appeal of New South Wales
Basten JA
Possession – adjournment – interim stay - bank obtained default judgment for possession - applicant sought to have default judgment set aside and to enter defence – bank was to seek eviction of applicant from his home absent a stay of judgment – held: application adjourned with interim stay to give applicant opportunity to put on material to indicate how defences might be supported and to seek additional material by issuing subpoena to bank – purpose of orders to allow Court and parties to identify substantial issues to be resolved and to ensure future prosecution of matter expedited.
Sharkey v Mayahi-Nissi [2015] NSWSC 104
Supreme Court of New South Wales
McDougall J
Injunction - first plaintiff and defendant formerly in de facto relationship – dispute concerned entitlement to ownership in property – defendant sought order that first plaintiff be restrained from leaving the country – whether there was an equitable debt or demand - whether respondent to application was likely to leave country without giving bail or security – writ of ne exeat colonia – held: Court satisfied defendant had good arguable case as to equitable cause of action –first plaintiff had engaged in deceptive conduct and intended to leave country once evidence completed – first plaintiff restrained from leaving country and to deliver up passports.
Choice Planning Pty Ltd v Mider @ Franklin Street Pty Ltd [2015] VSC 59
Supreme Court of Victoria
Hargrave J
Freezing orders - plaintiffs lent money to first defendant for building development projects - plaintiffs claimed remaining debt and profit share in amount of $8 million - plaintiffs contended defendants moved assets to frustrate Court’s processes - plaintiffs sought freezing orders under rr37A.05(4) & (5) Supreme Court (General Civil Procedure) Rules 2005 (Vic) – defendants acknowledged plaintiffs had good arguable case including in respect of claimed under s172 Property Law Act 1958 (VSC) – defendants opposed application on discretionary grounds - held: Court not prepared to refuse relief on basis of delay or that proffered undertaking insufficient - given lack of information and defendants’ conduct in transferring assets, freezing orders extended to full amount of prospective judgment debt.
Choice Planning Pty Ltd
Queensland Bulk Handling Pty Ltd v Peabody (Wilkie Creek) Pty Ltd [2015] QSC 37
Supreme Court of Queensland
P McMurdo J
Contract – plaintiff operated coal export terminal – defendant was coal mining company which used facility – parties made written agreement for terms and conditions of use which contained provision for possible further term – plaintiff claimed parties were contractually bound for further term – defendant denied parties bound – proper interpretation of option term obtain agreement in principle – parties’ intention to be bound - objective construction of contract – held: plaintiff’s case upheld – parties bound to enter agreement for option term on substantially same terms as agreement – declaration made.
Queensland Bulk Handling Pty Ltd
QUBE Logistics (Vic) Pty Ltd v United Equipment Pty Ltd [2015] WASC 70
Supreme Court of Western Australia
Master Sanderson
Corporations – plaintiff lessee and defendant lessor were parties to rental agreements for forklifts - term of rental agreements that defendant would carry out all maintenance and repairs on forklifts - plaintiff sought to set aside statutory demand served on it by defendant in respect of invoices rendered for rental – plaintiff had decided forklifts were not fit for the purpose they were hired and were unsafe or potentially unsafe – plaintiff claimed it was unable to use the forklift and quantified its loss as more than amount of statutory demand - held: plaintiff had raised off-setting claim greater than amount of statutory demand – demand set aside.
QUBE Logistics (Vic) Pty Ltd