Daily Banking: Thursday, 10 December 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)
Fabtech Australia Pty Ltd v Laing O’Rourke Australia Construction Pty Ltd (FCA) - application for interlocutory injunction restraining respondent from having recourse to two bank guarantees refused
Pitt Street Pty Ltd v Universal 1919 Pty Ltd (NSWCA) - contract - landlord and tenant - independent valuer complied with lease - parties bound by determination - appeal and cross-appeal dismissed
ACN 005 057 349 Pty Ltd v Commissioner of State Revenue (VSCA) - taxation - limitations - refusal to refund excess payments made as result of assessments - dismissal of proceedings for judicial review and restitution at common law - appeal allowed in both proceedings
The MCF Group Pty Ltd v Coleman (QCA) - interlocutory injunction - refusal of relief in relation to claim for return of excavators - leave to appeal refused
Sentinel Countrywide Retail Ltd v PC Emerald (Qld) Pty Ltd (QSC) - leases and tenancies - equity - lessor refused mandatory injunction requiring proprietors of loss-making business to continue in business during “Trading Hours” under lease
Carbone Bros Pty Ltd v Shire of Harvey (WASCA) - environment and planning - Shire had power to impose conditions in planning consents requiring payment of road levies for use of land for 'extractive industries'
Benchmark Television
 
 
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Gabriel Wendler and Stephen Odgers SC on trial date delays in criminal matters
Gabriel Wendler and Stephen Odgers SC discuss Cheih-Wei Lin v R - in which the Court of Criminal Appeal held that a trial judge was wrong to postpone the trial as requested by the Crown.
Summaries With Link (Five Minute Read)
Fabtech Australia Pty Ltd v Laing O’Rourke Australia Construction Pty Ltd [2015] FCA 1371
Federal Court of Australia
Besanko J
Interlocutory injunction - applicant sought interlocutory injunction restraining respondent from having recourse to two bank guarantees - guarantees related to certain claims by applicant against respondent and provided pursuant to subcontract between parties - guarantees given by applicant’s banker - Australian Consumer Law - ss7, 8, 17, 21, 29, 99 & 100 Building and Construction Industry Payments Act 2004 (Qld) - Corporations Act 2001 (Cth) - held: Court not satisfied applicant established prima facie case - not unconscionable or breach of implied obligation to act in good faith for respondent to assert its legal rights under subcontract - application for interlocutory injunction refused.
Fabtech
122 Pitt Street Pty Ltd v Universal 1919 Pty Ltd [2015] NSWCA 390
Court of Appeal of New South Wales
Bathurst CJ; Macfarlan & Meagher JJA
Contract - landlord and tenant - lessor leased part of building to defendant lessee - lease was for term of 10 years with option for further 10 years - lessee exercised option - lease provided for market review of base rent upon exercise of option to renew - lessor proposed new base rent - lessee engaged rent dispute mechanism under lease resulting in appointment of independent valuer - valuer determined market rent approximately $500,000 less than figure proposed by lessor - if valuer complied with lease by disregarding value of fitout parties accepted they were bound by determination - primary judge found valuer complied with lease - lessor challenged determination - whether primary judge erred in finding that “to take into account an obligation about ‘Fitout Work’ did not involve taking anything into account about ‘fitout’” - whether primary judge erred in finding valuer disregarded value of the “fitout” - held: nothing in clause of lease or elsewhere in lease to suggest “the Tenant’s Fixtures or fitout” included reference not only to premises’ condition at relevant time but also to future work likely to be carried - lessor did not establish valuer took value of future work into account - appeal and cross-appeal dismissed.
122 Pitt Street
ACN 005 057 349 Pty Ltd v Commissioner of State Revenue [2015] VSCA 332
Court of Appeal of Victoria
Hansen & Tate JJA; Robson AJA
Taxation - limitation of actions - applications for leave to appeal dismissal of two proceedings brought by appellant - one proceeding was for judicial review of Commissioner’s determination not to refund excess payments made as result of assessments - other proceeding was for restitution at common law - question raised by appeal was whether, where Commissioner had raised land tax liability under Land Tax Act 1958 (Vic) twice for same landholding, excess payments could be recovered by proceeding for mandamus - held: Court answered question in affirmative - Commissioner’s statutory power to ensure assessments of land tax were complete and accurate gave rise to duty to direct excess payments be repaid which could be enforced by mandamus - any relevant limitation period satisfied - Court allowed appeal in both proceedings
ACN 005 057 349 Pty Ltd
The MCF Group Pty Ltd v Coleman [2015] QCA 268
Court of Appeal of Queensland
Fraser & Morrison JJA; Boddice J
Interlocutory injunction - primary judge dismissed applicant’s applications for relief in relation to claim for return of excavators it allegedly owned - primary judge ordered applicant to pay respondents’ costs of applications - applicant sought leave to appeal - whether leave should be granted pursuant to s118(3) District Court of Queensland Act 1967 (Qld) - whether primary Judge erred in concluding offered undertakings were of doubtful value - held: applicant did not demonstrate strong prospects of success - applicant did not establish substantial injustice - leave to appeal refused.
The MFC Group
Sentinel Countrywide Retail Ltd v PC Emerald (Qld) Pty Ltd [2015] QSC 348
Supreme Court of Queensland
Applegarth J
Equity - leases and tenancies - plaintiff was lessor of shopping centre - defendant was lessee of shop premises at centre - defendant operated store until it closed its loss-making business - defendant sought to negotiate surrender of the lease - plaintiff sought mandatory injunction requiring defendant to continue business during “Trading Hours” of Centre as provided for by lease - whether plaintiff established exceptional circumstances for Court to order proprietors of loss-making businesses to continue in business - s51 Retail Shop Leases Act 1994 (Qld) - held: no exceptional circumstances established - Court declined to make the order sought.
Sentinel
Carbone Bros Pty Ltd v Shire of Harvey [2015] WASCA 248
Court of Appeal of Western Australia
McLure P, Murphy JA & Corby J
Environment and planning - appeal concerned validity of conditions in planning consents requiring appellant to pay road levies for use of land in Shire for 'extractive industries' - appellant contended s6.15 Local Government Act 1995 (WA) (LGA) was exhaustive statement of local government’s source of power of to impose revenue or income raising obligation, that Shire's District Planning Scheme and Shire's Extractive Industries Local Law 2007 were not a source of power,that levies were fees or charges within Local Government Act to which s 6.17 applied, and that the levies were invalid because they were not struck in accordance with s6.17 - held: appellant’s contentions rejected - Shire had power to impose conditions under Scheme - power wide enough to allow Shire to impose conditions requiring financial contributions to its revenue or income - appeal dismissed.
Carbone