| Kennedy (Appellant) v Cordia (Services) LLP (Respondent) (Scotland) (UKSC) - negligence - home-carer injured when she slipped on snow-covered icy foot path outside client's house - employer's failure to provide footwear attachments was breach of Personal Protective Equipment at Work Regulations 1992 and negligence at common law - appeal allowed
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| Bartlett v Australia & New Zealand Banking Group Ltd (NSWCA) - contract - employment contract - wrongful dismissal - bank not entitled to terminate appellant's contract for alleged serious misconduct - appeal allowed
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| Pavlovic v Universal Music Australia Pty Ltd (No 2) (NSWCA) - costs - remitter - appeal allowed against determination of separate questions - costs to be payable forthwith - remaining issues to be heard by differently constituted Court
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| Palmer Petroleum Pty Ltd v BGP Geoexplorer Pte. Ltd (QSC) - corporations - statutory demand - no genuine dispute or other reason to set aside statutory demand established - application dismissed
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| Pedler v Trustee for the Salvation Army (South Australia) PropertyTrust (SASC) - Wills and estates - probate - testamentary capacity - Will not executed with formalities of Wills Act 1936 (SA) admitted to probate
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Dear Subscriber
1. This Benchmark Television broadcast is with Michael Pearce SC on the appointment of provisional liquidators and winding up on the just and equitable ground with Ian Benson, Solicitor.
2. Michael is the consultant editor of the Victorian Reports. It is an interesting discussion. The decision of Austin J in the New South Wales case of Cadwallader was reversed on appeal although the principles of law, as enunciated by Austin J, were confirmed.
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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| Michael Pearce SC on the appointment of provisional liquidators and winding up on the just and equitable ground with Ian Benson |
| Michael is the consultant editor of the Victorian Reports. It is an interesting discussion. The decision of Austin J in the New South Wales case of Cadwallader was reversed on appeal although the principles of law, as enunciated by Austin J, were confirmed. |
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| Summaries With Link (Five Minute Read) |
Kennedy (Appellant) v Cordia (Services) LLP (Respondent) (Scotland) [2016] UKSC 6
Supreme Court of the United Kingdom
Lady Hale, Deputy President; Lord Wilson, Lord Reed, Lord Toulson & Lord Hodge
Negligence - appellant employed by respondent as home carer - appellant injured wrist when she slipped on sloping public footpath covered in snow overlying ice outside client's house - appellant was wearing flat boots with ridged soles when she slipped and fell - employer's duty of care - risk assessments - precautions - causation - admissibility of expert evidence on health and safety practice - held: employer's failure to provide footwear attachments to appellant constituted both a breach of Personal Protective Equipment at Work Regulations 1992 and negligence at common law - appeal allowed.
Kennedy |
Bartlett v Australia & New Zealand Banking Group Ltd [2016] NSWCA 30
Court of Appeal of New South Wales
Macfarlan, Meagher & Simpson JJA
Contract - employment contract - wrongful dismissal - bank purported to terminate appellant's employment without notice on basis of serious misconduct - appellant sued bank for damages for breach of contract alleging he was not guilty of serious misconduct and that bank was not entitled to terminate his employment without notice - primary judge found appellant sent doctored email to journalist and that bank was entitled to terminate contract without notice on that basis- s140 Evidence Act 1995 (NSW) - s100 Supreme Court Act 1970 (NSW) - onus - held: bank failed to discharge onus to prove alleged misconduct - bank required to act reasonably - bank failed to act reasonably due to its deficiencies in investigating alleged misconduct - bank not entitled to summarily terminate appellant's employment - appellant entitled to damages for wrongful dismissal in sum of $110,000 with interest.
Bartlett |
Pavlovic v Universal Music Australia Pty Ltd (No 2) [2016] NSWCA 31
Court of Appeal of New South Wales
Bathurst CJ, Beazley P & Meagher JA
Costs - remitter - contract - joint venture - Court allowed an appeal against Sacker J's determination of separate questions in proceedings - appellants sought that costs of appeal and at first instance be payable forthwith and that matter be remitted to judge other than Sackar J - r42.7 Uniform Civil Procedure Rules 2005 (NSW) - “strong findings about the credibility of a party” - held: costs to be payable forthwith - appropriate to remit matter for determination by differently constituted Court.
Pavlovic |
Palmer Petroleum Pty Ltd v BGP Geoexplorer Pte. Ltd [2016] QSC 33
Supreme Court of Queensland
Boddice J
Corporations - statutory demand - applicant sought to set aside respondent's statutory demand pursuant to s459G Corporations Act 2001 (Cth) - whether genuine dispute or “some other reason” to set aside demand - ss459H & 459J - held: genuine dispute about existence or amount of debt not established - applicant's failure to comply with demand was due to financial inability to do so - no other reason to set aside demand - application dismissed.
Palmer |
Pedler v Trustee for the Salvation Army (South Australia) PropertyTrust [2016] SASC 33
Supreme Court of South Australia
Gray J
Wills and estates - succession - informal Will - testamentary capacity - executor sought admission to probate of informal Will pursuant to s12(2) Wills Act 1936 (SA) which deceased had instructed solicitors to prepare - Will was unexecuted but deceased had signed an acknowledgment at the base of a disclosure document in relation to appointment of executor - held: deceased had testamentary capacity at time he instructed solicitor to make new Will - when deceased signed acknowledgment he intended draft Will to be his Will - Will expressed deceased's testamentary intentions - Will admitted to probate.
Pedler |
