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


Friday, 6 February 2015

Executive Summary (One Minute Read)
Cassegrain v Gerard Cassegrain & Co Pty Ltd (HCA) - real property - Torrens system land - indefeasibility of title - fraud - agency - appeal allowed in part
Commissioner of Taxation v Arnold (No 2) (FCA) - taxation - tax exploitation scheme - civil penalty regime - declarations
Russo v Russo (NSWSC) - equity - joint venture between parties established - account in common form ordered
Summaries With Link (Five Minute Read)
Cassegrain v Gerard Cassegrain & Co Pty Ltd [2015] HCA 2
High Court of Australia
French CJ; Hayne, Bell, Gageler & Keane
Real property - Torrens system land - fraud - agency - respondent company transferred land to appellant wife and husband as joint tenants - husband was company’s director - consideration to be satisfied by debiting husband’s loan account with company - husband knew company did not owe money in loan account - debit not recorded in company's books until after transfer registered - husband subsequently transferred land to wife for nominal consideration - company sought to recover title from wife as sole registered proprietor - ss42(1), 100(1), 118(1) Real Property Act 1900 (NSW) - appellant’s title as joint proprietor with husband not defeasible on account of husband’s fraud - husband not appellant’s agent - registration as joint tenant did not mean that appellant’s title defeasible - appellant not a bona fide purchaser for value of husband’s interest in land - company could recover interest which appellant derived from husband, which was an interest as tenant in common as to half - appeal allowed in part.
Commissioner of Taxation v Arnold (No 2) [2015] FCA 34
Federal Court of Australia
Edmonds J
Taxation - civil penalty regime - Commissioner sought declaratory relief and civil penalties pursuant to s290-50(3) Sch 1 Taxation Administration Act 1953 (Cth) - Commissioner sought declaration that first respondent engaged in conduct that resulted in himself, second respondent and third respondent being a promoter of a tax exploitation scheme in contravention of s290-50(1) - Commissioner also sought declaration that second and third respondents engaged in conduct that resulted in it being a promoter of a tax exploitation scheme - consideration of “Civil Penalties” provisions of Subdiv 290-B Sch 1 - held: Commissioner entitled to declaratory relief - penalties assessed.
Commissioner of Taxation
Russo v Russo [2015] NSWSC 17
Supreme Court of New South Wales
Slattery J
Equity - joint venture - plaintiffs made claim for account in common form in relation to alleged joint venture in land development - developers resisted claim on basis no relationship existed between them - alternatively defendants claimed that that if there were a joint venture they had already given an account to plaintiffs by provision of balance sheets and profit and loss statements - held: joint venture made between natural persons who were parties to proceedings, not their companies - Court did not uphold defendant’s defences that accounts had already been provided, their limitation defence, or other discretionary arguments - defendants ordered to provide joint venture accounts to plaintiffs - account in common form ordered.
Willow Poem
by William Carlos Williams
It is a willow when summer is over,
a willow by the river
from which no leaf has fallen nor
bitten by the sun
turned orange or crimson.
The leaves cling and grow paler,
swing and grow paler
over the swirling waters of the river
as if loath to let go,
they are so cool, so drunk with
the swirl of the wind and of the river-
oblivious to winter,
the last to let go and fall
into the water and on the ground.
William Carlos Williams