Insurance, Banking, Construction & Government Wednesday, 4 March 2015 View in browser

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

Insurance, Banking, Construction & Government

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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 (B)
Agripower Barraba Pty Ltd v Blomfield (NSWCA) – real property – fixtures - ownership and entitlement to possession of items on land – appeal allowed in part (I B C)
McCarthy v National Australia Bank Ltd (NSWCA) – possession – default judgment – adjournment and interim stay granted (B)
Sharkey v Mayahi-Nissi (NSWSC) – injunction – property dispute – party restrained from leaving country and to deliver up passports (I B)
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 (B C)
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 (I B C)
QUBE Logistics (Vic) Pty Ltd v United Equipment Pty Ltd (WASC) – corporations – statutory demand – demand set aside (I B C)
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.  

Gooley (B)
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 (I B C)
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.
McCarthy (B)
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.
Sharkey (I B)
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 (B C)
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 (I B C)
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 (I B C)