Banking Tuesday, 14 April 2015 View in browser

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


Executive Summary (One Minute Read)
Fletcher v Nextra Australia Pty Ltd (FCAFC) – consumer law – publication of article on internet blog was misleading and deceptive conduct – appeal dismissed
Perisher Blue Pty Ltd v Nair-Smith (NSWCA) – negligence – skier injured when ski-lift chair struck her – Perisher’s breach of care did not cause skier’s injuries - appeal allowed
Mouti v Nguyen (NSWCA) – contract – sale of half-share in business – irreconcilable findings – appeal allowed – matter remitted
Bong Bong Town Centre v Illawarra Clay Target Club (NSWSC) – contract – lease – lessee required to remove lead contamination from land and put it in condition suitable for development
The Estate of Selle, late of Kirribilli (NSWSC) – Wills and estates – new trustees appointed to trust created under Will for share of residue for beneficiary
Robbins v Hume (VSC) – succession – extension of time to bring family provision claim refused
Westpac Banking Corporation v Jamieson (QCA) – negligence – damages - investment advice – bank negligent and in breach of contract – appeal and cross-appeals dismissed
Summaries With Link (Five Minute Read)
Fletcher v Nextra Australia Pty Ltd [2015] FCAFC 52
Full Court of the Federal Court of Australia
Middleton, McKerracher & Davies JJ
Consumer law – appellant involved in newsagency industry – appellant appealed from primary judge’s decision that appellant’s publication of article on internet blog was misleading and deceptive conduct in contravention of s18 Australian Consumer Law – article criticised contents of flyer circulated by respondent – respondent was competitor of company of which appellant was director and 50% shareholder – appellant contended publishing blog not conduct in trade or commerce and that respondent did not establish representations – Sch 2 Competition and Consumer Act 2010 (Cth) - s52 Trade Practices Act 1974 (Cth) - held: publication of article occurred in trade or commerce - at least one representation correctly found to be representation of fact – representation false and misleading – appeal dismissed.
Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90
Court of Appeal of New South Wales
Barrett & Gleeson JJA; Tobias AJA
Negligence – causation - appellant operated ski fields– respondent injured when ski-lift chair struck her – respondent sued appellant for damages and breach of contract – primary judge upheld claim - appellant appealed – held: lift operator’s failure to observe condition of chair as it exited bullwheel constituted  breach of appellant’s duty of care - not open to primary judge to conclude appellant’s breach was necessary condition of occurrence of harm - respondent’s injuries not materialisation of inherent risk  - limitations on damages imposed by Pt 2 were invalid under s109 Constitution - limitations directly inconsistent with right to “full contractual liability” conferred by s74(1) Trade Practices Act 1975 (NSW) (TPA) - ticket contract was for supply of “recreational services” under s68(2) TPA - term of ticket contract which excluded liability for more than personal injury or death was void by operation of s68 TPA – appeal allowed.
Mouti v Nguyen [2015] NSWCA 93
Court of Appeal of New South Wales
Leeming JA, Bergin CJ in Eq & Sackville AJA
Contract – appellant owned business – respondent negotiated with appellant to purchase a fifty per cent share of business - respondent paid appellant portion of agreed sale price and also worked in business for period - parties’ relationship soured – appellant sold business – respondent sued for return of money – appellant cross-claimed for balance of purchase price – primary judge gave judgment for respondent and also found appellant’s cross-claim made out – primary judge set off  amount claimed to reduce judgment in  respondent’s favour - appellant appealed - respondent sought leave to appeal – whether agreement reached between parties - held: findings on main claim and cross-claim irreconcilable – primary judge erred in failing to resolve factual disputes which were pivotal to determination of parties’ intentions – primary judge made factual findings that were inconsistent with evidence – Court not satisfied it was possible or appropriate to make findings whether agreement reached – appeal allowed - matter remitted for new trial.
Bong Bong Town Centre v Illawarra Clay Target Club [2015] NSWSC 316
Supreme Court of New South Wales
McDougall J
Contract – remediation clause - plaintiff leased land to defendant club - two variations to lease – by second variation term of lease increased and new clause inserted – dispute concerned club’s obligations to remediate land under clause of lease read in conjunction with clause inserted by second variation – proper construction of remediation clause – validity of notice for purposes of clause inserted by second variation - held: club liable to remove lead contamination from and otherwise make good leased land, and in default to reimburse plaintiff for doing so.
The Estate of Selle, late of Kirribilli [2015] NSWSC 399
Supreme Court of New South Wales
Slattery J
Wills and estates - executors and trustees of Will of deceased sought judicial advice under s63 Trustee Act 1925 (NSW) or relief for appointment of new trustees under s70 to trust created under Will for share of residue for beneficiary – plaintiffs’ power to appoint substitute trustees to act as trustees for beneficiary’s interest – construction of Will - difficulty concerning operation of definition of ineligible person - held: most prudent course in circumstances was to appoint proposed trustees under s70 – judicial advice refused - new trustees appointed.
Robbins v Hume [2015] VSC 128
Supreme Court of Victoria
McMillan J
Wills and estates – family provision – deceased left property to defendant and personal estate equally between daughters – plaintiff daughter sought to restrain defendant from dealing with proceeds of sale of property and order pursuant to s99 Administration and Probate Act 1958 (Vic) extending time to commence application for provision – plaintiff contended defendant as executor and trustee of estate had fiduciary duty to safeguard her interests and had failed to do so – alternatively plaintiff claimed defendant had duty to be even-handed between all beneficiaries – held: defendant in personal capacity or as executor had no duty to safeguard plaintiff’s interests or duty of even-handedness of kind submitted by plaintiff - defendant’s executorial duties had finished with estate finally distributed – summons dismissed.
Westpac Banking Corporation v Jamieson [2015] QCA 50
Court of Appeal of Queensland
McMurdo P, Morrison JA & Applegarth J
Negligence – investment advice – damages -  primary judge found bank in breach of contract and negligent in provision of investment advice – primary judge also found bank’s conduct misleading or deceptive or likely to mislead or deceive in contravention of s12DA(1) Australian Securities and Investments Commission Act 2001 (Cth) – parties appealed and cross-appealed – held: bank’s appeal against finding of liability in respect of superannuation investment dismissed - respondents’ cross-appeal against decision to limit damages in relation to superannuation fund loan to two years’ interest payments dismissed – first respondent’s cross-appeal concerning methodology to gross-up his net loss dismissed.