Daily Banking: Friday, 4 March 2016
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AR Conolly Company Lawyers.
A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Daily Banking

CIVIL (Banking)
Executive Summary (One Minute Read)
Victoria v Tatts Group Ltd (HCA) - contract - Tatts not entitled to terminal payment from State under agreement - State’s appeal allowed
Tabcorp Holdings Ltd v Victoria (HCA) - statutory interpretation - Tabcorp not entitled to terminal payment provided for in s4.3.12(1) Gambling Regulation Act 2003 (Vic) - appeal dismissed
Lee v Elgammal (NSWCA) - professional negligence - primary judge erred in concluding client suffered any loss or damage due to solicitor’s advice - appeal allowed
ANZ v Loftus (VSC) - mortgage - fraud - bank could enforce judgment debt against mortgagor - mortgage was valid - bank’s security interest not defeasible for fraud
Hunt v Black (VSC) - testator’s family maintenance - deceased had no obligation to provide for step-grand-daughter - deceased did have obligation to provide for step-son - additional provision granted to step-son

Dear Subscriber

1. This Benchmark Television broadcast is with Erik Young on applications to remove liquidators in discussion with Terry Sperber.

2. Discussion includes – power to remove liquidators – liquidator’s approaches to their tasks – seeking advice from the court – adversarial methods of recovery – what is evidence of ownership of vehicles?

3. For Benchmark CLE subscribers we have prepared notes which we will forward to them at their request.

4. Also for Benchmark CLE subscribers at their request we will forward them an advice notice evidencing when they accessed this production.

5. We also have a series of questions for Benchmark CLE subscribers which we will send to them at their request.

6. We will be in the next few days publishing some productions which are exclusively for Benchmark CLE subscribers.

7. You should watch on Wi-Fi to avoid excess data usage charges.

Warm regards
Alan Conolly for Benchmark

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Benchmark Television
Click here to watch the video
 
Barrister Erik Young on Applications to Remove Liquidators with Terry Sperber
Discussion includes – power to remove liquidators – liquidators' approaches to their tasks – seeking advice from the court – adversarial methods of recovery – what is evidence of ownership of vehicles?
Summaries With Link (Five Minute Read)
Victoria v Tatts Group Ltd [2016] HCA 5
High Court of Australia
French CJ; Kiefel, Bell, Keane & Gordon JJ
Contract - appeal concerning parties’ entry into agreement in 1995 after privatisation of TAB - agreement provided for terminal payment to be made to respondent (Tatts) "[i]f the Gaming Operator's Licence expires without a new gaming operator's licence having issued to [Tatts]" - whether Tatts entitled to payment under clause of agreement due to State’s allocation of gaming machine entitlements under Gambling Regulation Act 2003 (Vic) - meaning of "new gaming operator's licence" in clause of agreement - held: "new gaming operator's licence" meant a gaming operator's licence granted under Pt 3 Gaming Machine Control Act 1991 (Vic) - a "new gaming operator's licence" was never issued - respondent not entitled to payment under clause of agreement - appeal allowed.
Victoria
Tabcorp Holdings Ltd v Victoria [2016] HCA 4
High Court of Australia
French CJ; Kiefel, Bell, Keane & Gordon JJ
Statutory interpretation - appellant (Tabcorp) claimed entitlement to terminal payment under s4.3.12(1) Gambling Regulation Act 2003 (Vic) - Tabcorp contended allocation of gambling machine entitlements was "grant of new licences" under of s4.3.12(1) as the entitlements were "substantially similar" to Tabcorp’s licences - meaning of "grant of new licences" in s4.3.12(1) - statutory construction - held: "grant of new licences" meant “grant of wagering licence and gaming licence” issued under Pt 3 of Ch 4 Gambling Regulation Act 2003 (Vic) - Tabcorp not entitled to terminal payment - appeal dismissed.
Tabcorp
Lee v Elgammal [2016] NSWCA 26
Court of Appeal of New South Wales
Gleeson JA; Tobias & Emmett JJA
Professional negligence - evidence - appeal concerning whether appellant solicitor liable to respondent client for liability client incurred under guarantee he gave in bank’s favour for loan made by bank to customer - client had retained solicitor to advise him on liabilities and obligations under guarantee and contended solicitor failed to advise him properly - solicitor admitted breach of retainer and negligence but disputed client suffered loss - primary judge gave judgment in client’s favour - whether client would have signed guarantee if liability limited to certain amount - whether bank would not have released term deposit if provided with guarantee with client’s liability limited - held: primary judge erred in concluding client suffered any loss or damage due to solicitor’s advice - appeal allowed.
Lee
ANZ v Loftus [2016] VSC 58
Supreme Court of Victoria
Cameron J
Mortgage - fraud - defendant was registered proprietor of property - defendant defaulted on repayment pursuant to loan agreement with plaintiff bank - bank sought possession of property alleging that defendant agreed to grant registered mortgage over property as security - defendant contended he never signed mortgage, that signature was forged and bank’s mortgage security was defeasible - Associate judge found in favour of bank and ordered payment of judgment debt - whether mortgage procured by fraud - whether bank could enforce judgment debt over property in reliance on mortgage - ss42, 76 & 78.Transfer of Land Act 1958 (Vic) - held: bank could enforce judgment debt - mortgage was valid - bank’s security interest not defeasible for fraud - judgment for bank.
ANZ
Hunt v Black [2016] VSC 59
Supreme Court of Victoria
Cameron J
Testator’s family maintenance - two applications for further provision from deceased’s Will - plaintiff in one proceeding was deceased’s disabled step-granddaughter - plaintiff in other proceeding was deceased’s step-son - s91 Administration and Probate Act 1958 (Vic) - held: deceased did not have responsibility to provide for step-grand-daughter - further provision refused - deceased had moral responsibility to stepson - stepson’s needs were substantial - additional amount provided to stepson out of deceased’s Will.
Hunt
CRIMINAL
Executive Summary
The Queen v GW (HCA) - criminal law - evidence - act of indecency in presence of daughter under 10 years - capacity to give sworn testimony - adequacy of directions - appeal allowed
PA v R (NSWCCA) - criminal law - act of indecency against 13-year-old - appeal against conviction dismissed
Summaries With Link
The Queen v GW [2016] HCA 6
High Court of Australia
French CJ; Bell, Gageler, Keane & Nettle JJ
Criminal law - evidence - directions - respondent convicted for act of indecency in presence of daughter under 10 years - recording of daughter’s unsworn evidence tendered at trial - respondent contended presumption of competence to give sworn evidence not applied by pre-trial judge and that trial judge failed to direct jury concerning significance of fact that evidence unsworn - Court of Appeal upheld both grounds of appeal - appellant granted special leave to appeal - Uniform Evidence legislation (UEL) in relation to witnesses’ competence and warnings about reliability -s61(1).Crimes Act 1900 (ACT) - Sch 1, ss12, 13, 21, 165 & 165A Evidence Act 2011 (ACT) - s70 Evidence (Miscellaneous Provisions) Act 1991 (ACT) - held: pre-trial judge did not express conclusion on capacity to give sworn evidence in terms of UEL but this did not entail he was not satisfied that daughter lacked capacity - no inadequacy of directions - appeal allowed.
GW
PA v R [2015] NSWCCA 18
Court of Criminal Appeal of New South Wales
Hoeben CJ at CL, Johnson & Hamill JJ
Criminal law - applicant indicted regarding five counts alleging sexual assault on daughter - applicant acquitted of three counts and jury unable to agree on another count - applicant sought leave to appeal against conviction on one count for act of decency - whether inconsistent verdicts - whether jury’s failure to agree was analogous to a verdict - s61M(2) Crimes Act 1900 (NSW) - s6(1) Criminal Appeal Act 1912 (NSW) - s165B Evidence Act 1999 (NSW) - held: ground of appeal failed that jury’s verdict should be set aside because it was irreconcilable with failure to agree on another count - it was open to jury to be satisfied beyond reasonable doubt that accused guilty of offence - appeal dismissed.
PA
Poem for Friday (Recitation here by Thomas Hellier)
Not for That City
BY CHARLOTTE MEW

Not for that city of the level sun,
Its golden streets and glittering gates ablaze—
The shadeless, sleepless city of white days,
White nights, or nights and days that are as one—
We weary, when all is said , all thought, all done.
We strain our eyes beyond this dusk to see
What, from the threshold of eternity
We shall step into. No, I think we shun
The splendour of that everlasting glare,
The clamour of that never-ending song.
And if for anything we greatly long,
It is for some remote and quiet stair
Which winds to silence and a space for sleep
Too sound for waking and for dreams too deep.

BY CHARLOTTE MEW