| TMA Australia Pty Ltd v Indect Electronics & Distribution GmbH (NSWCA) - contract - estoppel - consumer law - no entitlement to ongoing supply of parts or support arising from implied term or estoppel - appeals dismissed |
| Haixing Group Pty Ltd v Chan (NSWSC) - real property - contract - no serious question to be tried that plaintiff validly exercised call option under deed - no order for extension of operation of caveat - leave not granted to lodge further caveat |
| Minh Tan Tran v Nicols (NSWSC) - corporations - cause not shown for removal of liquidator - applications dismissed |
| Semmler v Todd (No 2) (VSC) - costs - family provision - unsuccessful application not without merit - estate to pay own costs despite result favourable to it |
| Re Hammond (VSC) - real property - modification of restrictive covenant to remove singular expression and replace it plurally |
| Nicholson Street Pty Ltd (Receivers & Managers Appointed) (In Liq) v Letten (VSC) - pleadings - trusts and trustees - breach of trust - accessorial liability - transparent protection of beneficiaries - inadequacy of pleadings - leave to file amended statement of claim refused |
| Alagiah v Crouch as administrator of the estate of Ratnam Alagiah (deceased) (QSC) - costs - unsuccessful claim for provision from estate of former husband - respondent to pay applicant’s costs out of deceased’s estate |
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| Summaries With Link (Five Minute Read) |
TMA Australia Pty Ltd v Indect Electronics & Distribution GmbH [2015] NSWCA 343
Court of Appeal of New South Wales
Macfarlan & Meagher JJA; Bergin CJ Eq
Contract - estoppel - consumer law - appellants (TMA) purchased car parking guidance systems from Indect - Indect advised TMA that TMA would no longer distribute its products, directly supply equipment, parts or services, and that TMA would need to obtain parts and services from Indect distributor - TMA claimed Indect’s inclusion of authenticity check feature in systems involved breach of supply contract and unconscionable conduct. - TMA claimed entitlement to receive ongoing supply of parts and support from Indect for systems it resold and installed on basis of contractual implied term, equitable estoppel and unconscionable conduct by Indect - primary judge fund in Indect’s favour - held: no breach of contract or unconscionable conduct - proposed term not necessary for effective operation of supply contracts - estoppel claim failed - primary judge erred in formulation of unconscionability under s21 Competition and Consumer Act 2010 (Cth) - TMA did not engage in conduct against good conscience - appeals dismissed.
TMA
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Haixing Group Pty Ltd v Chan [2015] NSWSC 1637
Supreme Court of New South Wales
Darke J
Real property - contract - parties entered Deed of Put and Call Option in respect of property - defendant registered proprietor entered deed as grantor - plaintiff entered deed as grantee - deed provided call option granted by defendant to plaintiff in respect of property in consideration of call option fee - after deed made plaintiff lodged caveat over the Property claiming an interest as grantee of option - plaintiff purported to exercise the call option - defendant disputed plaintiff validly exercised call option - defendant served notice of proposed lapsing of caveat - plaintiff sought declaratory relief that it validly exercised call option and defendant bound by contract attached to deed - plaintiff also sought extension of operation of caveat or leave to lodge further caveat claiming interest as holder of purchaser’s lien - whether serious question to be tried that plaintiff validly exercised call option - s74K Real Property Act 1900 (NSW) - construction of deed - held: there was not a serious question to be tried that plaintiff validly exercised call option - Court not satisfied plaintiff’s claimed interest in property as grantee had or may have substance within meaning of s74K(2) - no order for extension of operation of caveat - leave not granted to lodge further caveat.
Haixing
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Minh Tan Tran v Nicols [2015] NSWSC 1635
Supreme Court of New South Wales
Bergin CJ in Eq
Corporations - applicants sought pursuant to s473(1) Corporations Act 2001 (Cth) that liquidator appointed by Court be removed and that another liquidator be appointed - basis for application related to liquidator’s conduct in repossessing two motor vehicles and retaining certain funds in company’s account - “on cause shown” - Income Tax Assessment Act 1997 (Cth) - Road Transport Act 2013 (NSW) - held: Court not satisfied cause was shown for removal of liquidator - applications dismissed.
Minh Tan Tran
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Semmler v Todd (No 2) [2015] VSC 609
Supreme Court of Victoria
Zammit J
Costs - succession - family provision - plaintiff applied unsuccessfully under Pt IV Administration and Probate Act 1958 (Vic) for provision out of former domestic partner’s estate - Court did not consider application was without merit - defendant sought that plaintiff should pay 50% of estate’s costs in proceedings on basis of Calderbank letters rejected by plaintiff - s24(1) Supreme Court Act 1986 (Vic) - r63 Supreme Court (General Civil Procedure) Rules 2005 (Vic) - nature of plaintiff’s relationship with deceased - held: not unreasonable for plaintiff to have rejected Calderbank offers - it would be unjust for plaintiff to have to pay significant proportion of costs of estate - just for estate to pay own costs irrespective of result - plaintiff to pay own costs.
Semmler
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Re Hammond [2015] VSC 608
Supreme Court of Victoria
Mukhtar AsJ
Real property - restrictive covenant - purchaser of land in residential subdivision made restrictive covenant not to erect any building on land other than ‘a’ private dwelling house - plaintiff successors to covenantor sought under s 84(1)(c) Property Law Act 1958 (Vic) to modify covenant to remove singular expression and replace it plurally with ‘any buildings other than private dwelling houses’ - plaintiffs contended modification would not substantially injure persons entitled to restriction’s benefit - held: no substantial injury would be caused by covenant being modified - order made modifying covenant by replacing the expression ‘any building other than a private dwelling house of stone or brick’ with the expression ‘any buildings other than private dwelling houses’ - application granted.
Re Hammond
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Nicholson Street Pty Ltd (Receivers & Managers Appointed) (In Liq) v Letten [2015] VSC 583
Supreme Court of Victoria
Judd J
Pleadings - trusts and trustees - breach of trust - accessorial liability - plaintiffs sought to file further amended statement of claim in proceedings - defendants contended pleadings deficient and trustees not competent to prosecute in absence of beneficiaries or representative beneficiary under each trust - proper plaintiff - adequacy of pleading of fraud and dishonesty - Barnes v Addy - held: interests of beneficiaries must be transparently protected so long as plaintiffs maintaining case based on second limb of Barnes v Addy - plaintiffs failed to make sufficiently precise allegations of conduct against second defendant - leave to file amended statement of claim refused.
Nicholson Street
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Alagiah v Crouch as administrator of the estate of Ratnam Alagiah (deceased) [2015] QSC 313
Supreme Court of Queensland
A Lyons J
Costs - succession - family provision - applicant unsuccessfully applied pursuant to s41(8) Succession Act 1981 (Qld) for extension of time to make claim for family provision from former husband’s estate - rr658 &700A(2)(b)(iii) Uniform Civil Procedure Rules 1999 (Qld) - held: even though applicant unsuccessful Court was satisfied her costs should be paid from late husband’s estate - applicant in dire financial need as result of circumstances not entirely of applicant’s making - adequate explanation for delay - applicant did not have claim under Succession Act but other options needed to be pursued to enforce property rights and claims against estate - respondent to pay applicant’s costs of originating application filed and subsequent application from deceased’s estate.
Alagiah
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