Weekly Law Review Friday, 6 March 2015 View in browser

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

Weekly Law Review

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Executive Summary (One Minute Read)
Wilmink v Westpac Banking Corporation (FCAFC) – loan statement incapable of being converted into a bill of exchange – claim against bank failed (I 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)
Griffin Energy Group Pty Limited (Subject to DOCA) v ICICI Bank Ltd (Singapore Branch) (NSWSC) – standby letters of credit – sale agreement - conditions to enable vendor to demand payment could not be met (I B C)
Connaughton v Pacific Rail Engineering Pty Ltd (NSWDC) - tree fell on truck - Motor Accidents Compensation Act 1999 (NSW) - statutory interpretation - blameless accident - causation - verdict for plaintiff (I)
Bonifacio v NSW Trustee and Guardian acting as executor of the Estate of the late Woitala (NSWSC) – limitations – causes of action arising from fraudulent transfer of property statute-barred (I B)
Sharkey v Mayahi-Nissi (NSWSC) – injunction – property dispute – party restrained from leaving country and to deliver up passports (I B)
O’Brien v Hall (VSC) - testator’s family maintenance claim - no grant of representation in Victoria - Court had no jurisdiction - claim dismissed (B)
Majet v Goggin & Miller as Trustees of the Bankrupt Estate of Brett-Hall (QSC) – contract – conveyancing – bankruptcy – sellers entitled to return of deposit under contract for sale of land which did not complete (I B)
Swick Nominees Pty Ltd v Leroi International Inc [No 2] (WASCA) – product liability – multiple failures of air compressor unit – no breach of duty by manufacturer (I B)
Summaries With Link (Five Minute Read)
Wilmink v Westpac Banking Corporation [2015] FCAFC 17
Full Court of the Federal Court of Australia
Foster, Yates & Gleeson JJ
Bills of exchange - appellants claimed damages against bank based on alleged default by bank under purported bill of exchange - primary judge concluded purported bill of exchange was not a bill within meaning of Bills of Exchange Act 1909 (Vic) – appellants contended primary judge erred in finding that a loan statement was incapable of conversion to a bill of exchange in s25 – appellants also claimed primary judge denied them procedural fairness by hearing proceeding on the papers – held: loan statement did not satisfy requirement under s25 of a simple signature on a blank stamped paper – loan statement not a document capable of being converted into bill of exchange – no denial of procedural fairness in delivering judgment without oral hearing – appeal dismissed.
Wilmink (I B)
[From Benchmark 26 February 2015]
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)
[From Benchmark 4 March 2015]
Griffin Energy Group Pty Limited (Subject to DOCA) v ICICI Bank Ltd (Singapore Branch) [2015] NSWSC 87
Supreme Court of New South Wales
Hammerschlag J
Standby letters of credit – dispute concerning operation of three standby letters of credit issued on 28/2/11 – each letter of credit had maximum liability of $50 million and on its face was to expire on 1/3/15 – letters of credit issued to secure final instalment under sale agreement for sale of shares in companies – sale shares represented underlying interest in coal mine – whether conditions to enable plaintiff to demand payment under letters of credit could be met - International Standby Practices (ISP98) - provision for extension of date for timely presentation where last day for presentation not a business day – requirement of declaration that amount due and payable and delivery of drafts - held: letters of credit not capable of being security for payment of last instalment – summons dismissed.
Griffin Energy Group Pty Limited (I B C)
[From Benchmark 26 February 2015]
Connaughton v Pacific Rail Engineering Pty Ltd, NSWDC, 12 February 2015
District Court of New South Wales
Norton SC DCJ
Plaintiff injured when his truck collided with a fallen or falling tree – trial on liability and whether the accident was a blameless accident - s7A Motor Accidents Compensation Act 1999 (NSW) - held: the tree fell on the truck as the plaintiff was driving it; the plaintiff did not drive the truck into a fallen tree - in statutory interpretation, legislative intention is the intention to be inferred from the words actually used in the statute, not the subjective intention of members of the legislature that passed the statute - s3A Motor Accidents Compensation Act does not apply to blameless accidents - as there was no negligence or other tort by the plaintiff or the truck’s owner, the accident was a blameless accident - even under the extended definition of causation in s7E, the plaintiff did not cause the accident - verdict for plaintiff – damages to be assessed.
Connaughton (I)
[From Benchmark 2 March 2015]
Bonifacio v NSW Trustee and Guardian acting as executor of the Estate of the late Woitala [2015] NSWSC 124
Supreme Court of New South Wales
Darke J
Limitation of actions - plaintiffs sought declaration executor of deceased’s estate held half interest in property on constructive trust for them - plaintiffs alleged constructive trust arose in 1995 when deceased fraudulently registered transfer to himself of plaintiffs’ interest in property - executor accepted transfer was fraudulent, but claimed causes of action statute-barred - common ground that plaintiffs became aware of fraud at least by February 1998 - proceedings not commenced until December 2013 – when cause of action accrued – adverse possession - held: deceased in adverse possession of property at least from the end of 1998 - cause of action to recover land had accrued by end of 1998 - plaintiffs had discovered fraud by that date - twelve year limitation period in s27(2) would have expired by end of 2010 - in relation to cause of action to recover trust property, limitation period in s47(1) also commenced by end of 1998 and expired by end of 2010 - actions statute-barred.
Bonifacio (I B)
[From Benchmark 3 March 2015]
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)
[From Benchmark 4 March 2015]
O’Brien v Hall [2015] VSC 52
Supreme Court of Victoria
Derham AsJ
Testator’s family maintenance - daughter of deceased from his first marriage sought order for maintenance on basis Will failed to make such provision - there was no grant of probate of deceased’s Will in Victoria - grant of probate was in United Kingdom - defendant second wife of deceased was executrix and universal beneficiary - defendant sought order dismissing proceeding and judgment on basis originating motion did not disclose a cause of action, or summary judgment on basis claim had no real prospect of success - held: Court had no jurisdiction in relation to application until there was grant of representation in Victoria - implicit in s91 Administration and Probate Act 1958 (Vic) that there must be grant of representation for there to be jurisdiction in Court to entertain application - appropriate to dismiss proceeding and leave plaintiff to pursue rights to compel defendant to obtain grant of representation in Victoria.
O’Brien (B)
[From Benchmark 2 March 2015]
Majet v Goggin & Miller as Trustees of the Bankrupt Estate of Brett-Hall [2015] QSC 38
Supreme Court of Queensland
Henry J
Contract – conveyancing – bankruptcy - cross-applications concerning fate of deposit paid under contract for sale of land that did not complete – sellers sought order that the deposit be paid to their solicitor – trustees of buyer’s bankrupt estate sought order that deposit be paid to their solicitors - impact of bankruptcy trustee’s disclaimer pursuant to s133(2) Bankruptcy Act 1966 (Cth) on rights, interests and liabilities of parties to contract – held: contract specifically preserved to seller a right in respect of deposit - entitlement or right was preserved by proviso to s133(2) so that it was unaffected by disclaimer – sellers entitled to deposit pursuant to contract.
Majet (I B)
[From Benchmark 3 March 2015]
Swick Nominees Pty Ltd v Leroi International Inc [No 2] [2015] WASCA 35
Court of Appeal of Western Australia
Buss & Murphy JJA; Edelman J
Negligence – product liability – contract - action for damages against respondents in connection with appellant’s purchase of air compressor unit - trial judge dismissed claim against manufacturer and allowed claim against supplier – appellant contended primary judge erred in dismissing claim against manufacturer and in assessment of quantum of damages – multiple failures of complex machinery - fitness for purpose – pure economic loss – whether trial judge should have found manufacturer breached duty of care - res ipsa loquitur – proof of negligence - held: trial judge correct to find no breach of duty by manufacturer – no issue of quantification of damages in relation to manufacturer – no error in assessment of damages for breach of contract by supplier – appeals dismissed.
Swick Nominees Pty Ltd (I B)
[From Benchmark 3 March 2015]
Executive Summary
El-Haddad v R (NSWCCA) - conviction for importation of drugs - coincidence/tendency evidence admissible - appeal dismissed
Summaries With Link
El-Haddad v R [2015] NSWCCA 10
Court of Criminal Appeal of New South Wales
Leeming JA; McCallum & RA Hulme JJ
Importation of drugs - tendency and coincidence evidence - appellant convicted of four counts (Counts 1, 2, 3 and 5) of importing marketable quantities of drugs contrary to ss307.2(1) & 307.12(1) Criminal Code 1995 (Cth) and one count of importing commercial quantity of border controlled drug contrary to s307.1(1) (Count 4) - appellant challenged admission of evidence with respect to Counts 1, 2, 3 and 5 as tendency or coincidence evidence with respect to Count 4 and vice versa - insertion of new definition of import into the Code by Crimes Legislation Amendment (Serious and Organised Crime) Act (No 2) 2010 (Cth) - probative value of evidence - relevance of dissimilarities - held: coincidence evidence was admissible and also admissible as tendency evidence - requirements of ss98 & 101 Evidence Act 1995 (NSW) satisfied - similarities sufficient to give evidence significant probative value - primary judge correct to reject application for directed verdict on Count 4 - appeal dismissed.
Sunday Evening in the Common
By John Hall Wheelock
LOOK—on the topmost branches of the world  
  The blossoms of the myriad stars are thick;     
  Over the huddled rows of stone and brick,      
A few, sad wisps of empty smoke are curled     
  Like ghosts, languid and sick.             
One breathless moment now the city’s moaning          
  Fades, and the endless streets seem vague and dim;           
  There is no sound around the whole world’s rim,       
Save in the distance a small band is droning   
  Some desolate old hymn.  
Van Wyck, how often have we been together   
  When this same moment made all mysteries clear;   
  —The infinite stars that brood above us here,
And the gray city in the soft June weather,        
  So tawdry and so dear!
John Hall Wheelock