Insurance, Banking, Construction & Government: Wednesday, 13 May 2015 View in browser

A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Daily Composite

Insurance, Banking, Construction & Government

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Executive Summary (One Minute Read)
Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 2) (FCA) - dispute concerning control of port terminal facilities - inspection of port and associated mine infrastructure granted (I B C)
Rumble v Liverpool Plains Shire Council (NSWCA) - contempt - failure to comply with judicial orders - appeal dismissed (I B)
Adrenaline Pty Ltd v Bathurst Regional Council (NSWCA) - contract - restitution - Council’s general power to contract - good consideration for fees paid - appeal dismissed (I B)
L Q Quarries Pty Ltd v Barraport Investments Pty Ltd (VSC) - corporations - statutory demand - no genuine dispute - demand not set aside (B C)
Growthpoint Properties Ltd v Commissioner of State Taxation (SASCFC) - taxation - stamp duty payable on transaction which effected entity’s transformation into a land rich entity and conferred special interest - appeal dismissed (B)
Commonwealth Bank of Australia v Psevdos (SASC) - real property - mortgage - bank’s mortgage over property had priority over defendant’s equitable interest (B)
Bickford v Benson (WASC) - Wills and estates - beneficiary unable to be located - orders for distribution of estate (B)
Summaries With Link (Five Minute Read)
Mineralogy Pty Ltd v Sino Iron Pty Ltd [2015] FCA 429
Federal Court of Australia
Edelman J
Inspection - dispute concerning control possession and ownership of port terminal facilities - respondents currently controlling and operating terminal - applicants sought that Court conduct inspection/’view’ of port and associated mine infrastructure - held: inspection would assist Court’s understanding of photograph and documentary exhibits - little or no danger inspection might result in undue waste of time - little danger of confusion arising from material alterations to site - inspection would assist Court to understand dispute - inspection should be held - application allowed.
Mineralogy (I B C)
Rumble v Liverpool Plains Shire Council [2015] NSWCA 125
Court of Appeal of New South Wales
Beazley P; McColl & Basten JJA
Contempt - applicants owned used car business - cars and parts stored on property owned by first applicant  - Land and Environment Court judge issued orders for removal of cars and parts with exception for cars own by residents of property - applicants did not comply - primary judge found applicants in contempt of court - applicants sought leave out of time to appeal - applicants contended Land and Environment Court judge erred finding both applicants “owned and occupied” property whereas second applicant neither owned it nor lived there - applicants sought to challenge convictions on basis orders not served properly and primary judge erred in finding business run at property - applicants challenged constitutional validity of laws establishing local government in NSW and Council’s powers to restrain use of private property and sought referral of constitutional matters to High Court - held: once order made, liability depended on the judicial order and not its legal basis - even if orders set aside, failure to comply with them was contempt - no basis to impugn constitutional basis or validity of Local Government Act 1993 - appeal dismissed.
Rumble (I B)
Adrenaline Pty Ltd v Bathurst Regional Council [2015] NSWCA 123
Court of Appeal of New South Wales
Macfarlan, Ward & Leeming JJA
Contract - restitution - statutory interpretation - appellant conducted annual motor racing event at circuit under five year agreement with respondent Council - each year appellant paid fee for right to use circuit and ancillary services - appellant claimed it was entitled to be repaid amounts because it had mistakenly believed Council complied with statutory obligations in setting fee - primary judge found in favour of Council on  basis fees paid by appellant stood outside regimes established by Local Government Act 1993 governing fixing of fees, with which it had not complied - held: primary judge wrong to regard Council’s ‘general power to contract’ as permitting it to stand outside of Pt 10 Ch 15 - however appellant had received good consideration for fees it paid - appeal dismissed.
Adrenaline (I B)
L Q Quarries Pty Ltd v Barraport Investments Pty Ltd [2015] VSC 191
Supreme Court of Victoria
Efthim AsJ
Corporations - plaintiff sought to set aside statutory demand served on it by defendant - plaintiff denied any advanced funds were due and owing to defendant - whether there was genuine dispute - limitations defence - Graywinter principle - held: plaintiff’s affidavit did not relate to legal argument involving whether debt statute barred - Court did not have to decide whether principle in Graywinter breached because there was acknowledgement of the debt - there was no genuine dispute - statutory demand not set aside.
LQQuarries (B C)
Growthpoint Properties Ltd v Commissioner of State Taxation [2015] SASCFC 65
Full Court of the Supreme Court of South Australia
Kourakis CJ; Blue & Bampton JJ
Taxation - stamp duty - trustee of trust issued 50.1% of total units in trust to appellant - appellant increased holdings to 76.18% - Commissioner charged appellant with stamp duty on transaction - Treasurer disallowed objection - primary judge dismissed appeal against Treasurer’s decision - whether land rich entity provisions contained in Pt 4 Stamp Duties Act 1923 (SA) applied to transaction whereby person acquired a majority interest in company or unit trust that was not a land rich entity before acquisition but became land rich entity as result of transaction - held : manifest purpose of Pt 4 was to charge with stamp duty a person who had been left with significant interest in private land rich entity as result of transaction  - purpose of s95 to demarcate between acquisitions which would be levied at applicable rate to market securities and chargeable at significantly higher rate applicable to conveyances of land - transaction which at same time effected entity’s transformation into land rich entity and conferred a significant interest in that entity fell within s95 - appeal dismissed.
Growthpoint (B)
Commonwealth Bank of Australia v Psevdos [2015] SASC 66
Supreme Court of South Australia
Parker J
Real property - bank loaned money to registered proprietor of land -  registered proprietor granted mortgage over land to bank - defendant then loaned money to registered proprietor - registered proprietor granted defendant mortgage in registrable form - defendant lodged caveat claiming equitable interest as mortgagee over land - bank became aware of caveat and amended mortgage to be subject to defendant’s caveat to enable registration - bank’s mortgage registered subject to caveat - bank sought declaration  its equitable interest  had priority over any equitable interest which defendant held - held: bank’s mortgage had priority - better equity lay with bank - caveat’s lodgement and registration of bank’s mortgage subject to caveat did not disturb priority - costs to be paid by defendant on indemnity basis.
Commonwealth (B)
Bickford v Benson [2015] WASC 161
Supreme Court of Western Australia
Jenkins J
Wills and estates - application by executor pursuant to s66 Trustees Act 1962 to enable distribution of estate of deceased in different manner to that set out in Will by not distributing bequest to named beneficiary - executor had partially distributed estate - held: executor had made extensive inquiries as to identity and whereabouts of beneficiary - despite efforts beneficiary had not been located - given remaining beneficiaries’ rights and size of estate as compared with size of bequest to beneficiary appropriate to grant orders to distribute estate as if beneficiary did not exist or died before deceased - order would not affect beneficiary’s right to take action if she was alive to trace proceeds subject to limitation period.
Bickford (B)