Insurance, Banking, Construction & Government: Wednesday, 6 May 2015 View in browser

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

Daily Composite

Insurance, Banking, Construction & Government

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Executive Summary (One Minute Read)
Yuan v Xie (NSWSC) - loans and mortgages - lender had equitable charge over funds paid into Court by mortgagee - plaintiff entitled to payment of funds out of Court (B)
Philip v JPM Developments Pty Ltd (NSWSC) - judgments and orders - declaratory and injunctive orders - costs order against non-party (I B C)
Haque v State of Victoria (VSCA) - false imprisonment - defamation - no real prospects of success on appeal - leave to appeal refused (I)
Haritos v Commissioner of Taxation (VSCA) - declaratory relief - pleadings - beneficial ownership of shares in company - appeal dismissed (I B)
Mules v Ferguson (QCA) - damages - appellant successful on appeal - interest on damages payable from date of judgment in Court of Appeal, not from date of judgment at first instance (I)
Allsop v Henderson (QSC) - succession - family provision order in favour of son of deceased (B)
TJ King v Qld Building and Construction Commission (QSC) - judicial review - power to require rectification - ‘building work’ - multiple directions - consequential damage (C G)
Summaries With Link (Five Minute Read)
Yuan v Xie [2015] NSWSC 492
Supreme Court of New South Wales
Stevenson J
Loans and mortgages - equitable charge - payment out of Court - plaintiff claimed to have equitable charge over property owned by first defendant - claim arose from  document called ‘Loan Agreement’ pursuant to which plaintiff agreed to lend amount to second defendant - first defendant signed document as ‘guarantor’ - there was amount outstanding - mortgagee took possession of property and exercised power of sale - net proceeds paid into court - plaintiff sought order pursuant to r55.11 Uniform Civil Procedure Rules 2005 that money be paid out to her on basis she held equitable charge at value of outstanding debt - held: Court satisfied document  bespoke intention by first defendant to charge property as security - plaintiff had established primary entitlement and its basis to money paid into Court - Court also satisfied plaintiff had interest in very funds paid into Court - unregistered security interest over property retained force after sale of property and converted to equitable charge - money to be paid out to plaintiff.
Yuan (B)
Philip v JPM Developments Pty Ltd [2015] NSWSC 495
Supreme Court of New South Wales
Sackar J
Judgments and orders - costs against non-party - Court gave judgment in proceedings - parties submitted proposed declaratory and injunctive orders - plaintiff also claimed sole director and shareholder of defendant be responsible for costs of litigation in event defendant was unable to pay - defendant accepted that as unsuccessful party it should pay costs on ordinary basis - s98(1) Civil Procedure Act 2005 - held: proposed orders too broad and did not reflect way in which case conducted and decided - form of orders restricted - Court satisfied in circumstances that director should be responsible for costs of proceedings if defendant unable to pay
Philip (I B C)
Haque v State of Victoria [2015] VSCA 83
Court of Appeal of Victoria
Osborn & Beach JJA
False imprisonment - defamation - applicant sued State alleging causes of action in assault, battery, false imprisonment and defamation - County Court dismissed proceeding and entered judgment for State - applicant sought leave to appeal - held: no error in primary judge’s acceptance of constable’s evidence that he told applicant he was being arrested pursuant to outstanding warrant - no error in conclusions that arrest warrant valid and outstanding and that arrest neither wrongful nor unlawful - ss461(1) & 461(2) Crimes Act 1958 did not operate to make arrest unlawful - no error in conclusion it was reasonable for police to place applicant in handcuffs - no error in dismissal of defamation claim or in fact-finding analysis - grounds of appeal without merit - Court not satisfied appeal had real prospect of success - leave to appeal refused.
Haque (I)
Haritos v Commissioner of Taxation [2015] VSCA 79
Court of Appeal of Victoria
Osborn, Ferguson & Kaye JJA
Declaratory relief - pleadings - primary judge granted Commissioner declaration that fourth defendant was beneficial owner of shares in company - primary judge also made further declaration that purported declarations of trust made by appellants with respect to the shares were void, invalid and of no effect - appellants contended trial judge failed to properly take into account evidence of an accountant in respect of first declaration - held: Court not persuaded primary judge relevantly disregarded evidence in issue, nor that it established error in conclusions - primary judge did not err in refusing leave to further amend defence - appeal dismissed.
Haritos (I B)
Mules v Ferguson [2015] QCA 77
Court of Appeal of Queensland
M McMurdo P, Applegarth & Boddice JJ
Damages - interest on judgment sum - Court allowed appellant’s appeal - Court entered judgment for appellant in amount of damages assessed by trial judge “together with interests thereon” - appellant contended interest payable on entire judgment sum calculated from date of judgment at first instance - ss58(3) & 59(2) Civil Proceedings Act 2011 - held: appellant had failed at first instance - appellant had received benefit of substantial award of damages as consequence of successful appeal - nothing in respondent’s conduct or appellant’s circumstances justified judgment operating from date of initial determination such that respondent would suffer consequence of having to pay significant additional sum of interest - interest should only be payable from date on which judgment in appellant’s favour pronounced in Court of Appeal.
Mules (I)
Allsop v Henderson [2015] QSC 105
Supreme Court of Queensland
Atkinson J
Succession - family provision - deceased died in 20102 - deceased survived by wife of second marriage and two sons, one of which was applicant only child of first marriage - other son was only child of second marriage - provision made for applicant in Will but majority of estate left to wife and other son - applicant sought further provision under s 41(1) Succession Act 1981 - held: Court satisfied adequate provision had not been made for applicant - provision order made.
Allsop (B)
TJ King v Qld Building and Construction Commission [2015] QSC 79
Supreme Court of Queensland
Dalton J
Judicial review - applicant had relocated a house - applicant directed by respondent to rectify works associated with relocation on two occasions - applicant submitted work carried out was not ‘building work’ under Queensland Building Services Authority Act 1991 (Qld), and that respondent’s discretion to give direction pursuant to s72 could only be exercised once - whether power to rectify consequential damage caused by carrying out building work should be implied under s72 - held: work pursuant to contract with house owner was building work - respondent had power to issue second direction - where no power to order rectification of consequential damage specifically given by legislation, respondent did not have power to order rectification of consequential damage.
TJKing (C G)