| 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 |
| French v Fraser (No 3) (NSWSC) - damages - defamation - broader campaign of stalking harassment and intimidation - verdict in plaintiff’s favour for damages, including aggravated damages, of $300 000 |
| 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 |
| 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' |
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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. |
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| 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
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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
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French v Fraser (No 3) [2015] NSWSC 1807
Supreme Court of New South Wales
McCallum J
Damages - defamation - broader campaign of stalking harassment and intimidation - action arising out of defamatory publications concerning plaintiff - publications were website post, email and Facebook post - defendant had abandoned defence prior to hearing and consented to entry of judgment against him - ss34 & 35 Defamation Act 2005 (NSW) - assessment of damages - held: defendant would not have means to satisfy judgment debt but that was irrelevant to assessment of quantum - plaintiff suffered significant, lasting damage to reputation as result of publication of matters complained of and also suffered immense emotional pain - “primary vector” for compensation was damage from publication but it was permissible to have regard to defendant’s whole conduct to extent it aggravated hurt - Court awarded verdict for plaintiff for damages, including aggravated damages, in the sum of $300,000.
French
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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
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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
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