Daily Banking: Tuesday, 10 November 2015
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AR Conolly Company Lawyers.
A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Daily Banking

Executive Summary (One Minute Read)
Corbett v Corbett Court Pty Ltd, in the matter of Corbett Court Pty Ltd (FCA) - corporations - oppression - share issue commercially unfair and contravened s232(e) Corporations Act 2001 (Cth) - share issue set aside
Shephard v Robson (FCA) - bankruptcy - trusts and trustees - part of settlement amount was damages or compensation for applicant’s personal injuries and therefore “exempt money”
Brinca Property Management Pty Ltd v Fibre Tek Global Pty Ltd (NSWSC) - landlord and tenant - valid termination of lease for non-payment of rent in breach of essential term
Caro by her Tutor NSW Trustee & Guardian v Caro (NSWSC) - default judgment - possession - self-represented litigant - application to set aside default judgment for possession refused
Bruce v Greentree (No 2) (NSWSC) - costs - unsuccessful family provision claim - plaintiffs to pay defendant’s costs on ordinary basis
Nichols v Earth Spirit Home Pty Ltd (QCA) - building contract - no error in decision that oral building contract was enforceable - leave to appeal granted - appeal dismissed
Summaries With Link (Five Minute Read)
Corbett v Corbett Court Pty Ltd, in the matter of Corbett Court Pty Ltd [2015] FCA 1176
Federal Court of Australia
Farrell J
Corporations - oppression - all shares in company held by eight siblings - whether issue of shares to second defendant sibling and wife, who were company directors at time of share issue, was contrary to interests of members as whole or oppressive, unfairly prejudicial to or unfairly discriminatory against plaintiff - share issue had effect of diluting interest of plaintiff and each of his six siblings - held: Court satisfied plaintiff made out claim under s232(e) Corporations Act 2001 (Cth) that share issue was oppressive, unfairly prejudicial and unfairly discriminatory against himself and the other minority shareholders - share issue set aside - cross-claim dismissed.
Corbett
Shephard v Robson [2015] FCA 1194
Federal Court of Australia
Murphy J
Bankruptcy - applicant bankrupt sought declarations trustee in bankruptcy - applicant sought that amount paid to him in settlement of court proceedings be declared “exempt money” under s116 Bankruptcy Act 1966 (Cth) on basis it was damages or compensation for personal injury or wrong - applicant also sought that 10/12th interest in property he purchased with part of settlement sum be declared exempt from division between creditors because it was purchased with exempt money - property had been sold at trustee’s direction - held: Court satisfied about 6% of settlement sum represented damages or compensation for applicant’s personal injuries and was exempt money, and that 6% of applicant’s outlay on property was exempt money - fair to attribute 6% of 10/12th part of net proceeds of sale of property to exempt money used in purchase -t amount was not divisible between creditors - trustee to file further evidence as to amount of net proceeds of sale.
Shephard
Brinca Property Management Pty Ltd v Fibre Tek Global Pty Ltd [2015] NSWSC 1628
Supreme Court of New South Wales
Ball J
Landlord and tenant - plaintiff sought declaration it was entitled to terminate lease of strata titled motel to first defendant, damages and order for writ of possession - plaintiff had purported to terminate lease for non-payment of rent - first defendant accepted it had not paid rent but contended plaintiff wrongfully failed to credit it for amounts plaintiff received from EFTPOS transactions using machine it installed in motel - whether breach by plaintiff of first defendant’s right to quiet enjoyment - held: even assuming plaintiff breached obligation of quiet enjoyment, Court not satisfied defendant suffered any substantial damages - first defendant in default with payment of rent in breach of essential term of lease - even if first defendant entitled to set off of amounts, first defendant in arrears at time plaintiff purported to terminate - payment of rent an essential term of the Lease - plaintiff entitled to terminate for breach of essential term - termination was valid - orders made
Brinca
Caro by her Tutor NSW Trustee & Guardian v Caro [2015] NSWSC 1645
Supreme Court of New South Wales
Campbell J
Default judgment - possession of land - self-represented litigant - defendant sought to set aside default judgment for possession obtained by plaintiff - defendant asserted he was never served with statement of claim or he had a right to possession based on equitable interest under resulting or constructive trust - plaintiff claimed basis for trust was that he paid proportion of purchase price for property - “relevant to the quality of the evidence that is required to show a defence on the merits” - held: Court not satisfied defendant was not personally served - Court not satisfied defendant pointed to material suggesting he could demonstrate an equitable interest giving rise to trust - application dismissed.
Caro
Bruce v Greentree (No 2) [2015] NSWSC 163
Supreme Court of New South Wales
Hallen J
Costs - family provision - Court dismissed plaintiffs’ claim for family provision - determination of costs of proceedings - held: plaintiffs chose proceed having been advised of risks - plaintiffs’ offer demonstrated plaintiffs prepared to take risk as to costs if unsuccessful - usual costs order not punitive but compensatory - not necessary for Court of express view whether reasonable for plaintiffs to bring claim - even if reasonable to bring claim that would not justify departure from usual order - defendant’s offers, if accepted, might have saved costs - overall justice required plaintiffs to pay defendant’s costs on ordinary basis - no other discretionary factors justifying departure from usual costs rule.
Bruce
Nichols v Earth Spirit Home Pty Ltd [2015] QCA 219
Court of Appeal of Queensland
M McMurdo P, Philipides JA & Boddice J
Building contract - applicant sought leave to appeal against Queensland Civil and Administrative Tribunal decision to uphold enforcement of oral building contract between applicant and respondent - respondent sought to support decision on basis it was entitled to recover judgment sum on restitutionary basis - whether wholly oral building contract enforceable under provisions of Queensland Building and Construction Commission Act 1991 (Qld) and public policy - ss67E(2) & 67G - held: Appellate Tribunal correctly found oral contract not unenforceable due to fact respondent committed offence by entering building contract which was not reduced to writing - Appeal Tribunal also correctly found nothing in s67E(2) required finding that contract was unenforceable - no good reasons of public policy to support conclusion contract unenforceable - leave to
Nichols