| JR Consulting & Drafting Pty Limited v Cummings (FCAFC) - contract - copyright - ownership and control of software used in design and manufacture of items used in construction of buildings - appeal dismissed - cross-appeal allowed in part
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| Seymour v Commissioner of Taxation (FCAFC) - taxation - AAT's decision to allow appellants in tax appeals to give evidence by video-link from overseas quashed - appeal dismissed
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| Wilmar Sugar Australia Limited v Queensland Sugar Limited, in the matter of Queensland Sugar Limited (No 2) (FCA) - corporations - oppression - leave to intervene in proceedings determining appropriate final relief
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| Mali, in the matter of Head Quarters (WA) Pty Ltd v Head Quarters (WA) Pty Ltd as trustee for the Three Flights Up Unit Trust (FCA) - corporations - director of company granted leave to bring proceedings on company's behalf upon giving appropriate undertakings
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| Jennings v Jennings (NSWCA) - contract - deed of release - appellant ordered to sign deed of release - summons for leave to appeal dismissed
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| Yule v Irwin (SASC) - bias - administration and probate - application for recusal by judge dismissed
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Dear Subscriber
1. This Benchmark Television broadcast is with Peter Tomasetti SC on inconsistencies between construction certificates and development consents with Scott Nash of counsel.
2. Peter and Scott were on opposite sides of the record in this case of Burwood Council.
3. Construction certificates may be valid even if inconsistent with development consents and in breach of environmental planning regulations.
4. For Benchmark CLE subscribers we have prepared notes which we will forward to them at their request.
5. Also for Benchmark CLE subscribers at their request we will forward them an advice notice evidencing when they accessed this production.
6. We also have a series of questions for Benchmark CLE subscribers which we will send to them at their request.
7. We will be in the next few days publishing some productions which are exclusively for Benchmark CLE subscribers.
8. You should watch on Wi-Fi to avoid excess data usage charges.
Warm regards
Alan Conolly for Benchmark
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| Peter Tomasetti SC with Scott Nash of counsel on inconsistencies between construction certificates and development consents |
| Peter Tomasetti SC and Scott Nash of counsel were on opposite sides of the record in this case of Burwood Council. Construction certificates may be valid even if inconsistent with development consents and in breach of environmental planning regulations. |
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| Summaries With Link (Five Minute Read) |
JR Consulting & Drafting Pty Limited v Cummings [2016] FCAFC 20
Full Court of the Federal Court of Australia
Bennett, Greenwood & Besanko JJ
Contract - proceedings relating to ownership and control of software used in design and manufacture of items used in construction of buildings - primary judge determined Deed of Agreement between first appellant and first respondent abandoned and termination of licence agreement between second appellant and second respondent invalid - construction of contract - doctrine of abandonment - principles in relation to copyright in computer software - ss236, 237 Australian Consumer Law - ss10(1), 13(2), 14(1), 22(1), 29(1) & (2), 31(1), 32(1) and (2), 36(1), 36(1A), 115 &135AQ(2) Copyright Act 1968 (Cth) - s126 Trade Marks Act 1995 (Cth) - appeal dismissed - cross-appeal allowed to extent of variation of restraint orders and declaration to be made.
JR Consulting |
Seymour v Commissioner of Taxation [2016] FCAFC 18
Full Court of the Federal Court of Australia
Siopis, Griffiths & Pagone JJ
Taxation - Commissioner sought judicial review of Administrative Appeals Tribunal's decision to allow appellants to give evidence in tax appeals by video link from outside Australia - primary judge quashed decision on basis AAT's interlocutory decision erroneous because AAT took irrelevant considerations in account, failed to apply s39 Administrative Appeals Tribunal Act 1975 (Cth) and denied Commissioner procedural fairness - held (by majority): no error in decision of primary judge - appeal dismissed.
Seymour |
Wilmar Sugar Australia Limited v Queensland Sugar Limited, in the matter of Queensland Sugar Limited (No 2) [2016] FCA 180
Federal Court of Australia
Yates J
Interlocutory application - corporations - oppression - interveners - Court declared resolution amending article of defendant's Constitution was oppressive to plaintiff member of defendant under s232(e) Corporations Act 2001 (Cth) - “Mill Owner Members” sought leave to intervene with further hearing of proceeding determining appropriate form of further final relief - whether leave should be granted - form of further orders - held: leave to intervene granted - Constitution returned to form prior to amendment - defendant granted order under s233(3)(a).
Wilmar |
Mali, in the matter of Head Quarters (WA) Pty Ltd v Head Quarters (WA) Pty Ltd as trustee for the Three Flights Up Unit Trust [2016] FCA 171
Federal Court of Australia
Edelman J
Corporations - fiduciary duties - applicant sought leave to commence proceedings on behalf of first respondent as trustee for trust in reliance on s237 Corporations Act 2001 (Cth) - applicant alleged his co-director in first respondent diverted valuable opportunity which first respondent had right to take benefit of - ss182(1), 183(1), 236, 236(1)(a), 236(1)(b), 237, 237(2)(a), 237(2)(b), 237(2)(c), 237(2)(e), 237(3), 237(3)(b), 237(3)(c)(ii) & 240 Corporations Act 2001 (Cth) - held: applicant granted leave to bring proceedings upon giving appropriate undertakings.
Mali |
Jennings v Jennings [2016] NSWCA 29
Court of Appeal of New South Wales
Ward & Leeming JJA; Emmett AJA
Contract - deed of release - primary judge ordered first applicant to execute deed of release - first applicant sought leave to appeal - first applicant contended primary judge should have found parties' objective intention was not to make concluded bargain unless formal contract executed, erred in finding parties bound by oral agreement, erred in finding parties proposed to substitute oral agreement with written document, and erred in finding third person entitled to benefits under agreement - held: proposed appeal was not reasonably arguable - summons for leave to appeal dismissed.
Jennings |
Yule v Irwin [2016] SASC 30
Supreme Court of South Australia
Nicholson J
Administration and probate - third defendant sought that judge recuse himself from further participation in matter due to apprehended bias - conflict of interest - due process - pre-judgment - abuse of process - s69 Administration and Probate Act 1919 (SA) - held: fair minded lay observer would not observe apprehended bias by judge - application for recusal dismissed.
Yule |
