| Fletcher v Nextra
Australia Pty Ltd (FCAFC) – consumer law – publication of article on internet blog was
misleading and deceptive conduct – appeal dismissed (I B) |
| 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 (I B) |
| Mouti v Nguyen (NSWCA) – contract – sale
of half-share in business – irreconcilable findings – appeal allowed – matter remitted (I B) |
| 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 (I B C) |
| 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 (B) |
| Robbins v Hume (VSC) – succession – extension
of time to bring family provision claim refused (B) |
| Westpac Banking
Corporation v Jamieson (QCA) – negligence – damages - investment advice – bank negligent and in
breach of contract – appeal and cross-appeals dismissed (I B) |
| 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.
Fletcher
(I B)
|
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.
Perisher
(I B)
|
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.
Mouti
(I B)
|
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.
BongBong
(I B C)
|
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.
Selle
(B)
|
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.
Robbins
(B)
|
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.
Westpac
(I B)
|
