Daily Construction: Thursday, 12 November 2015
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AR Conolly Company Lawyers.
A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Daily Construction

Executive Summary (One Minute Read)
North Australian Aboriginal Justice Agency Limited v Northern Territory (HCA) - statutory interpretation - constitutional law - challenge to validity of Div 4AA of Pt VII Police Administration Act (NT) failed - matter remitted to single Justice for further directions
The White Ant Co Pty Ltd v Robson (NSWCA) - contract - deed of arrangement - liability term not enlivened - appeal allowed
Hunter Development Corporation v Save Our Rail NSW Incorporated (NSWCA) - administrative law - acquisition of land - assets did not vest in appellant under Transport Administration Act 1988 (NSW) - appellant was not a “rain infrastructure owner” - appeal allowed
In the matter of Asciano Ltd (No 2) (NSWSC) - corporations - schemes of arrangement - postponement of scheme of arrangement granted
Summaries With Link (Five Minute Read)
North Australian Aboriginal Justice Agency Limited v Northern Territory [2015] HCA 41
High Court of Australia
French CJ; Kiefel, Bell, Gageler, Keane, Nettle & Gordon JJ
Statutory interpretation - constitutional law - first plaintiff corporation provided legal services to Aboriginal and Torres Strait Islanders - second plaintiff was Aboriginal person resident in Northern Territory arrested by officer or officers of Police Force and taken into custody under s133AB Police Administration Act (NT) - second plaintiff held in custody and issued with infringement notice which recorded offences and provided for payment of fines - plaintiffs alleged Div 4AA of Pt VII in which s133AB appeared was invalid, contending it purported to confer on Executive of the Northern Territory power to detain which was penal or punitive in character and beyond powers of Legislative Assembly of Northern Territory to pass - plaintiffs also contended Division 4AA conferred on Executive of Northern Territory power of detention which undermined or interfered with courts’ institutional contrary to Constitution - second plaintiff also alleged false imprisonment - separate questions - issues of validity - costs of the proceedings - orders to be made in light of answers - held (by majority): plaintiffs' challenge to validity of Div 4AA failed - questions in Special Case answered accordingly - matter remitted to single Justice for further directions.
North Australian
The White Ant Co Pty Ltd v Robson [2015] NSWCA 345
Court of Appeal of New South Wales
Macfarlan & Gleeson JJA; Emmett AJA
Contract - appellant contractor and respondents (homeowner) made deed of arrangement relating to termite infestation in house Homeowner constructed on property - homeowner claimed contractor liable under deed to pay reasonable costs of rectification of damage - District Court judge gave judgment for homeowner - contractor contended primary judge erred in drawing inference there was evidence of actual damage caused by termites and in finding contractor liable under deed - construction of deed - whether clause of deed (liability term) enlivened other than by operation of deed’s other provisions - held: primary judge’s conclusion that contractor was liable had been based not on operative provisions of deed but on estoppels binding contractor as consequence of entering deed - homeowner’s construction of deed rejected - clause of deed (liability term) was not enlivened - leave to appeal revoked insofar it related to quantification of damages - appeal allowed.
The White Ant
Hunter Development Corporation v Save Our Rail NSW Incorporated [2015] NSWCA 34
Court of Appeal of New South Wales
Beazley ACJ; Macfarlan & Meagher JJA
Administrative law - appellant entered agreements for acquisition of land and assets from RailCorp - first respondent sought to restrain RailCorp, Transport NSW and appellant from acting contrary to law in disposing of land or undertaking proposed removal works - first respondent relied on s99A Transport Administration Act 1988 (NSW) which provided that a “rail infrastructure owner” must not close railway line unless authorised by Act of Parliament - no such Act at time of proceedings below or on appeal - appellant appealed against trial judge’s declaration that assets had “vested by or under” Act and appellant had become a “rail infrastructure owner - first respondent cross-appealed against trial judge’s finding that land transfer did not constitute closure of a railway line and RailCorp had not “otherwise disposed of” under s99A - held: Ministerial direction to RailCorp under s3B required it to sell assets but did not effect a transfer to or vesting of assets in appellant - assets vested in appellant pursuant to Asset Sale Agreement - assets did not “vest” in appellant “by or under” Act -appellant was not a “rail infrastructure owner” - appeal allowed - cross-appeal dismissed.
Hunter -
In the matter of Asciano Ltd (No 2) [2015] NSWSC 1651
Supreme Court of New South Wales
Brereton J
Corporations - schemes of arrangement - application for postponement of scheme meeting - whether Court should exercise power to postpone meeting to enable shareholders to have adequate time to consider new information - interests of shareholders in context of proposed scheme - maximisation of realisable value of shares - ss411 & 1319 Corporations Act 2001 (Cth) - held: current state of affairs was fluid - scheme appeared prima facie fair and reasonable and in shareholders’ interests but there were signs that alternative offers or proposals may emerge - orders made postponing meeting.