Daily Banking: Thursday, 13 August 2015 View in browser
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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)
Tomlinson v Ramsey Food Processing Pty Ltd (HCA) - issue estoppel - no issue estoppel arising from earlier Federal Court proceedings on which respondent could rely in common law proceedings - appeal allowed
The Australian Special Opportunity Fund LP v Equity Trustees Wealth Services Ltd (NSWCA) - equity - trusts and trustees - security trust deed - negligent failure to appoint controller - appeal allowed in part
Arida v Arida (No 2) (NSWCA) - judgments and orders - interest - appellant paid money to respondent pursuant to Court order later set aside on appeal - respondent to pay interest on amount to be repaid
Petan Pty Ltd v Schult (TASFC) - conveyancing - entry of property in Heritage Register gave rise to legal restriction on property which may hinder purchaser's use - appeal dismissed
Summaries With Link (Five Minute Read)
Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28
High Court of Australia
French CJ; Bell, Gageler, Keane & Nettle JJ
Issue estoppel - employment law - work injury damages - appellant worker employed by respondent to work in abattoir - appellant sued respondent for injury suffered while working at abattoir - respondent contended appellant could not sue it for damages - respondent’s argument depended on fact it was appellant’s employer at time of injury - Court of Appeal of New South Wales held respondent had benefit of issue estoppel, that the issue whether appellant was employed by respondent at time of injury was principal issue determined in earlier Federal Court proceedings, and that while worker was not a party to Federal Court proceedings, the Fair Work Ombudsman was his privy for purposes of determining the issue - held: Court of Appeal erred in concluding Ombudsman was appellant's privy in Federal Court proceedings - claiming and making of declarations and orders created no issue estoppel for want of sufficient connection in interest between Fair Work Ombudsman and appellant - appeal allowed.
The Australian Special Opportunity Fund LP v Equity Trustees Wealth Services Ltd [2015] NSWCA 225
Court of Appeal of New South Wales
Bathurst CJ; Macfarlan & Emmett JJA
Equity - trusts and trustees - respondent was trustee for note holders under Convertible Notes Trust Deed and security trustee for secured note holders under Security Trust Deed in respect of notes issued by company - appellant held approximately 86% of secured notes and small number of convertible notes - appellant held fixed and floating charge over assets of company in order to secure its obligations under secured notes - company placed into voluntary administration - s441A Corporations Act 2001 (Cth) provided that if property of company under administration subject to security interest and secured party enforced security interest before or during the “decision period”, provisions of Act preventing or limiting enforcement of such rights did not apply - respondent did not enforce security by appointing controller during decision period - deed of company arrangement executed - appellant directed respondent to release and discharge its security over assets of company - appellant claimed respondent breached obligations by not appointing a controller during decision period and failing to comply with direction - .primary judge found in favour of respondent - appellant appealed - held: Security Trust Deed obliged respondent to appoint controller - appellant did not waiver respondent’s breach of trust or right to sue for breach - respondent was negligent in failing to appoint controller - respondent not exempt from liability for failure to appoint controller - respondent not required to comply with direction - appeal allowed in part.
Arida v Arida (No 2) [2015] NSWCA 226
Court of Appeal of New South Wales
Bathurst CJ, Macfarlan JA & Sackville AJA
Judgments and orders - interest - Court allowed appeal in proceedings - parties disputed whether respondent should be required to pay interest on sum to be repaid - appellants relied on general principle that party who had paid money pursuant to judgment or court order later set aside had a common law right to restitution of money paid, with interest - held: respondent did not advance any cogent reason why he should not be required to pay interest - orders should provide for the payment of interest by respondent on amount to be repaid - orders made.
Petan Pty Ltd v Schult [2015] TASFC 10
Full Court of the Supreme Court of Tasmania
Blow CJ; Porter & Wood JJ
Conveyancing - respondent contracted to purchase residential property from appellant containing three apartments - contract subject to condition precedent that there were no legal restrictions on use of property that may hinder or prevent purchaser from using property for residential use - respondent sought Court's determination under s39 Conveyancing and Law of Property Act 1884 (Tas) whether heritage restriction under Historic Cultural Heritage Act 1995 (Tas) gave rise to any legal restriction that may hinder applicant from using it as residential dwelling within meaning of contract - primary judge answered question in affirmative - appellant appealed - construction of 'use' in condition precedent - whether condition precedent included registration of property on Heritage Register - whether routine maintenance and repair usually subject to legal restriction - whether heritage listing amounted to 'a significant limitation' in respect of routine maintenance and repair work - held: primary judge correct to answer question in affirmative - appeal dismissed.