Daily Banking: Friday, 13 November 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)
Ramsay Health Care Australia Pty Ltd v Compton (FCA) - bankruptcy - creditor’s petition - application to “go behind” judgment of Supreme Court of New South Wales dismissed
JM & PM Holdings Pty Ltd v Snap-on Tools (Australia) Pty Ltd (NSWCA) - contract - franchise agreement - “monthly cash flow projection” spreadsheet not relied on in decision to enter agreement - appeal dismissed
Gabo Island Investments Pty Ltd v Barea (NSWSC) - conveyancing - breach of covenant implied in Iease - relief against forfeiture refused - plaintiff granted judgment for possession and damages
Mealey v Power (NSWSC) - contract - offer and acceptance - conversation between two solicitors in context of personal injury action - no offer made capable of acceptance - solicitor fishing for a higher offer - summons dismissed
Surfstone Pty Ltd v Morgan Consulting Engineers Pty Ltd (QSC) - costs - rejection of offer to settle not unreasonable - indemnity costs refused - unsuccessful plaintiffs to pay defendant’s costs on standard basis
Meyer v Cool Chilli Pty Ltd (ACTSC) - work injury - negligence - worker injured in slip and fall from ladder - employer negligent - breaches of statutory duty by employer and third party - third party liable to employer for 25% contribution
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Summaries With Link (Five Minute Read)
Ramsay Health Care Australia Pty Ltd v Compton [2015] FCA 1207
Federal Court of Australia
Flick J
Bankruptcy - applicant petitioning creditor filed petition maintaining respondent owed it amount of judgment - respondent opposed petition on basis no debt “is or was really owed” to applicant and Court ought to exercise discretion to go behind judgment - whether just to permit judgment debtor to “go behind” judgment - held: Court concluded it should not go behind judgment either because the circumstances in which the discretion should be exercised were not enlivened; and/or as Court should not go behind judgment as a matter of discretion - application dismissed.
Ramsay
JM & PM Holdings Pty Ltd v Snap-on Tools (Australia) Pty Ltd [2015] NSWCA 347
Court of Appeal of New South Wales
Macfarlan & Leeming JJA; Emmett AJA
Contract - franchise agreement - first appellant franchisee entered franchise agreement with respondent franchisor which gave franchisee right to operate a “Snap-on” franchise - franchisee fell into arrears - agreement terminated - franchisor sued franchisee and second appellant director and shareholder of franchisee for recovery of debt - director sued on a guarantee - franchisor obtained judgment against appellants - appellants had cross-claimed based on contraventions of ss52 & 51AD Trade Practices Act 1974 (Cth) in relation to “monthly cash flow projection” spreadsheet (document) given to director before entry into agreement - primary judge found aspects of document misleading but found director did not rely on it when entering into agreement - appellants challenged dismissal of cross-claim - held: no appellable error demonstrated in primary judge’s findings that document not relied on in decision to enter agreement - appeal dismissed.
JM & PM Holdings
Gabo Island Investments Pty Ltd v Barea [2015] NSWSC 1675
Supreme Court of New South Wales
Adamson J
Conveyancing - relief against forfeiture - plaintiff sought possession of property leased to defendant and damages for breach of contract - premises located on larger property - defendant conceded he breached implied term of lease - construction of lease - how rent ought be calculated - whether defendant’s breach of covenant implied in lease entitled plaintiff to terminate - whether relief against forfeiture ought to be granted - amount of damages to which plaintiff entitled - ss116, 117, 125 & 129 Conveyancing Act 1919 (NSW) - held: defendant’s breach substantial and non-compliance deliberate - no basis established to conclude it would be unjust or unconscionable for plaintiff to insist on forfeiture - relief against forfeiture inappropriate in circumstances - judgment for possession granted - damages assessed.
Gabo
Mealey v Power [2015] NSWSC 1678
Supreme Court of New South Wales
Pembroke J
Contract - offer and acceptance - personal injury action - communications between solicitors - whether one solicitor’s statement should be properly characterised as an offer or whether communication more in nature of invitation seeking to elicit higher offer from other party - objective intention of parties - held: solicitor’s language did not amount to an offer - solicitor was fishing for a higher offer - no promise client would accept amount - solicitor never made offer capable of acceptance - other solicitor’s misconstruction founded in enthusiasm to resolve case for client - summons dismissed.
Mealey
Surfstone Pty Ltd v Morgan Consulting Engineers Pty Ltd [2015] QSC 322
Supreme Court of Queensland
P Lyons J
Indemnity costs - defendant established limitation clause formed part of contract between it and plaintiffs - defendant sought indemnity costs on basis of non-acceptance by plaintiffs of its offer to settle by discontinuance of action with no order as to costs - whether r361 Uniform Civil Procedure Rules 1999 (Qld) applied - held not a straightforward matter to determine whether limitation clause was included in contract - it was reasonable for plaintiffs not to accept defendant’s offer - order for indemnity costs refused - plaintiffs to pay defendant’s costs on standard basis.
Surfstone
Meyer v Cool Chilli Pty Ltd [2015] ACTSC 336
Supreme Court of the Australian Capital Territory
Mossop AsJ
Work injury - negligence - breach of statutory duty - apportionment - plaintiff worked in IT support role for defendant employer - plaintiff working at premises of third party - while plaintiff climbing ladder to get into ceiling space it slipped from beneath her and she injured herself - plaintiff sued employer in negligence - employer issued third-party notice against third party seeking contribution or indemnity - ss21 & 168 Civil Law (Wrongs) Act 2002 (ACT) - s24 Scaffolding and Lifts Act 1912 (ACT) - Workers Compensation Act 1951 (ACT) - ss6, 7, 73 & 80 Scaffolding and Lifts Regulation 1950 (ACT) - held: employer breached duty of care to plaintiff and was liable for damage caused by accident - no contributory negligence - third party claim failed insofar as relied on allegation of negligence - work being carried out was building work under Scaffolding and Lifts Act - both third party and employer breached s73 Scaffolding and Lifts Act when they carried out work in ceiling space - employer breached s80(7) Scaffolding and Lifts Act - appropriate contribution from third party was 25% - judgment for plaintiff against employer - judgment for employer against third party.
Meyer
Poem for Friday (Recitation here by Thomas Hellier)
The Lake Isle of Innisfree
BY WILLIAM BUTLER YEATS

I will arise and go now, and go to Innisfree,
And a small cabin build there, of clay and wattles made;
Nine bean-rows will I have there, a hive for the honey-bee,
And live alone in the bee-loud glade.

And I shall have some peace there, for peace comes dropping slow,
Dropping from the veils of the morning to where the cricket sings;
There midnight’s all a glimmer, and noon a purple glow,
And evening full of the linnet’s wings.

I will arise and go now, for always night and day
I hear lake water lapping with low sounds by the shore;
While I stand on the roadway, or on the pavements grey,
I hear it in the deep heart’s core.

WILLIAM BUTLER YEATS