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

Weekly Civil Law Review

Friday, 14 November 2014

Executive Summary (One Minute Read)
Katter v Melhem (No 2) (FCA) - bankruptcy - no basis for Court to go behind District Court judgment on which bankruptcy notice was based (B)
Goater v Commonwealth Bank of Australia (NSWCA) - mortgage - default judgment set aside after writ of possession entered (B)
Smith bht Smith v NRMA Insurance Ltd (NSWSC) - negligence - van collided with car, injuring passenger - Court not satisfied van driver conscious - NRMA not liable (I)
Thew v Woelms (NSWSC) - equity - breach of settlement deed by sale of property - constructive trust - equitable debt - damages (B)
Cunneen v Independent Commission Against Corruption (NSWSC) - administrative law - corrupt conduct - ICAC not restrained from investigating Deputy Senior Crown Prosecutor (G)
McFarlane v Nationwide News Pty Ltd (NSWSC) - defamation - three articles published in newspaper - plaintiff entitled to choose mode of pleading - strike-in of fourth article refused (I)
Pace v Calabro Real Estate Pty Ltd (NSWSC) - possession - competing orders of possession of same land - procedural fairness - stay of writ of execution (B)
Wade v Frost (SASC) - Wills - deceased had testamentary capacity when making Will - probate granted - terms of compromise approved (B)
Elton v Public Trustee (SASC) - costs - probate - testator's conduct caused litigation - both parties entitled to indemnity costs payable out of estate (B)
Kennett Pty Ltd v Janssen (SASC) - subcontract between builder and bricklayers - repudiation by bricklayers - builder entitled to damages (I B C)
Summaries With Link (Five Minute Read)

Katter v Melhem (No 2) [2014] FCA 1176
Federal Court of Australia
Wigney J
Bankruptcy - applicants sought order setting aside bankruptcy notice issued on basis of judgment of District Court of NSW - judgment had not been set aside or varied - applicants submitted Court should go behind the judgment and conclude they were not indebted to respondent - applicants also submitted judgment exceeded jurisdictional limit of District Court and was based on terms of settlement that operated as a penalty - applicants submitted judgment debt was not enforceable by way of bankruptcy notice - held: no substantial reasons for Court to go behind judgment - compelling discretionary reasons for not going behind judgment - judgment was satisfactory evidence of the debt - no other basis for setting aside bankruptcy notice - application dismissed.
Katter (B)
[From Benchmark 10 November 2014]

Goater v Commonwealth Bank of Australia [2014] NSWCA 382
Court of Appeal of New South Wales
Basten & Gleeson JJA; Sackville AJA
Contract - loan agreement - borrowers defaulted on their mortgage to Bank - borrowers lodged complaint with Financial Ombudsman Service - complaint terminated by agreement between borrowers and Bank - borrowers required to comply with schedule of repayments - Bank to be informed about payments to local council - Bank sent notice to borrowers that they had breached agreement and that proceedings were to be commenced - borrowers did not immediately respond or seek advice resulting in failure to file defence - default judgment entered - writ of possession issued and executed - borrowers evicted - borrowers sought to set aside the default judgment - application rejected as there was no power to set aside judgment once writ of possession executed - held: Court had power to set aside default judgment when orders had taken effect - default judgment should be set aside - breach of agreement by the borrowers relied on by bank was non-payment of water rates, which was arguably not an obligation under the agreement - in any case, there was evidence rates had been paid - bank did not comply with its procedural obligations - delay by borrowers insufficient to deny relief where the borrowers had reasonably arguable defences - default judgment set aside.
Goater (B)
[From Benchmark 11 November 2014]
Smith bht Smith v NRMA Insurance Ltd [2014] NSWSC 1518
Supreme Court of New South Wales
Button J
Negligence - plaintiff child was passenger in motor vehicle - van drove onto wrong side of road colliding with motor vehicle - plaintiff injured - van driver pronounced dead at scene of accident having suffered heart attack - plaintiff sued NRMA as insurer of van driver - separate determination of liability - parties agreed that if van driver was conscious and in control of the van at the time of the collision, he was undoubtedly negligent, and, if unconscious or otherwise very incapacitated, he was not negligent - time at which van driver suffer the heart attack - held: Court not satisfied on balance of probabilities that van driver was conscious and driving at time of collision - separate question of liability determined in favour of NRMA.
Smith bht Smith (I)
[From Benchmark 13 November 2014]
Thew v Woelms [2014] NSWSC 1554
Supreme Court of New South Wales
Rein J
Equity - plaintiff made claim under Property (Relationships) Act 1984 (NSW) against defendant following termination of their relationship - plaintiff claimed defendant sold property in breach of deed of settlement - plaintiff sought determination of amount due from defendant to plaintiff - defendant did not file defence - held: Court satisfied defendant had not only been served in accordance with the orders for substituted service but had notice of proceedings and hearing - defendant had sold property to third party for amount received by conveyancer retained by defendant - defendant had acted in significant breach of orders - plaintiff had not received money from sale - plaintiff entitled to order that defendant pay him his half share of net proceeds - all funds had been disbursed by defendant - plaintiff entitled to order for payment of equitable debt as result of breach of constructive trust imposed on the defendant by virtue of deed and court orders, or damages for breach of contract constituted by the deed.
Thew (B)
[From Benchmark 7 November 2014]
Cunneen v Independent Commission Against Corruption [2014] NSWSC 1571
Supreme Court of New South Wales
Hoeben CJ at CL
Administrative law - ICAC decided to investigate Deputy Senior Crown Prosecutor - Prosecutor sought to restrain ICAC - held: failure to give reasons did not invalidate decision to investigate - s111 Independent Commission Against Corruption Act 1988 (NSW) - no general duty at common law to give reasons for administrative decisions - no right of alleged wrongdoers to have alleged crimes investigated only by police - definition of corrupt conduct in s8(2) Independent Commission Against Corruption Act – in that definition, conduct “that could adversely affect … the exercise of official functions by a public official” may be the same conduct “which could involve … perverting the course of justice” - ICAC had not taken irrelevant considerations into account - ICAC may consider the status of a person alleged to have engaged in corrupt conduct, even where the alleged corrupt conduct allegedly occurred in a private capacity - alleged conduct was capable of constituting perversion of the course of justice - it could not be said that no rational or reasonable decision maker could have decided to investigate the Prosecutor by way of public hearing - ICAC not restrained.
Cunneen (G)
[From Benchmark 12 November 2014]
McFarlane v Nationwide News Pty Ltd [2014] NSWSC 1574
Supreme Court of New South Wales
McCallum J
Defamation - strike-in application - action arising out of publication of series of three articles in newspaper on same day - defendant contended that a further article appearing on the same page as a number of the articles sued on ought also be included as part of the matter complained of - defendant sought order striking that material in - defendant contended additional article would have been read by ordinary reasonable reader in conjunction with matter complained of - defendant also submitted additional article was capable of affecting the sense of the matter complained of - plaintiff's entitlement to choose mode of pleading - held: it would have been open to plaintiff to add additional article to matter complained of as a single publication but it could not be concluded that plaintiff's chosen mode of pleading only three of the four articles was untenable - plaintiff could not be compelled to include article in the matter complained of - strike-in application refused.
McFarlane (I)
[From Benchmark 12 November 2014]
Pace v Calabro Real Estate Pty Ltd [2014] NSWSC 1166
Supreme Court of New South Wales
McCallum J
Possession - stay - competing orders for possession - land subject of possession claim registered in plaintiffs' name - land subject of contract for sale with defendant - stalling of completion of contract - defendant in occupation of premises as licensee - licensee sought stay of execution of writ - at time contract entered, plaintiffs in default of loan agreement secured by mortgage over the property and mortgagee had commenced proceedings against plaintiffs for possession - terms of agreement for sale with defendant enabled plaintiffs to make sufficient payment to mortgagee to forestall execution of an order for possession - plaintiffs entered into licence agreement with defendant pursuant to which regular payments were made by defendant to mortgagee - held: there ought to be opportunity to address Court as to potential conflict between there being an order for possession in favour of mortgagee against plaintiffs and a later writ of possession in favour of plaintiffs against licensee - not possible for two competing orders for possession to co-exist in respect of same property - in order to afford procedural fairness to mortgagee in what appeared to be a potential legal act which could be to its detriment, it was appropriate to grant stay.
Pace (B)
[From Benchmark 13 November 2014]

Wade v Frost [2014] SASC 162
Supreme Court of South Australia
Gray J
Wills - probate - testamentary capacity - plaintiffs appointed executors under Will made in November 2005 - first defendant was appointed executor under Will made in 1990 - second, third and fourth defendants were deceased's grandchildren - defendants alleged deceased did not have testamentary capacity at the time of making 2005 Will - parties reached compromise - allegation withdrawn - held: notwithstanding parties had reached compromise, Court must be satisfied deceased had testamentary capacity at time of making 2005 Will and of formal validity of 2005 Will itself before making a grant of probate - held: Court satisfied Will valid and that deceased had testamentary capacity when making her 2005 Will - Court satisfied 2005 Will was last Will and testament of deceased - terms of compromise approved.
Wade (B)
[From Benchmark 13 November 2014]

Elton v Public Trustee [2014] SASC 169
Supreme Court of South Australia
Stanley J
Costs - probate - plaintiff sought orders revoking grant of probate of deceased's Will and admitting reconstruction of document to probate as last Will and Testament of deceased - plaintiff's claim dismissed - plaintiff and the defendant both sought order that costs be paid out of estate - parties sought orders on an indemnity basis - Public Trustee opposed plaintiff's application for costs - Public Trustee sought that plaintiff pay costs on a party/party basis - alternatively Public Trustee contended there should be no order in relation to plaintiff's costs - held: Public Trustee entitled to payment of its costs out of estate as successful party to litigation - estate should pay Public Trustee's costs on indemnity basis - plaintiff's action caused by testator's conduct in creating uncertainty and confusion as to his testamentary intentions so as to instil in plaintiff a bona fide belief that he had been left an interest in testator's property - deceased had by his own conduct caused the litigation – application of recognised exception entitling unsuccessful plaintiff to costs out of the estate - plaintiff's costs to be paid from deceased's estate on indemnity basis.
Elton (B)
[From Benchmark 12 November 2014]
Kennett Pty Ltd v Janssen [2014] SASC 164
Supreme Court of South Australia
Blue J
Contract - builder (Kennett) entered subcontract with bricklayers (Janssen) to undertake bricklaying for facility - Janssen wrote to Kennett alleging it was in breach of contract by not paying progress and variation claims and changing scope of work - Janssen stated it had suspended work and would only resume after all invoices paid and revised scope of work and variations were agreed - Kennett issued notice terminating subcontract for repudiation - Kennett sued Janssen for damages for breach of contract - held: repudiatory conduct may be comprised of acts or omissions in breach of contract or of statements of intention as to future acts or omissions, provided that the conduct evinced an unwillingness or inability to render substantial performance of the contract - adoption by one party of an erroneous view as to the construction of a contract or another relevant matter apparent to a reasonable observer in the position of the other party was one factor to be taken into account in assessing whether a party's conduct was repudiatory - objectively from perspective of reasonable observer in the position of Kennett, Janssen's conduct was repudiatory - judgment for Kennett.
Kennett Pty Ltd (I B C)
[From Benchmark 10 November 2014]

By John Clare

I love the fitfull gusts that shakes
The casement all the day
And from the mossy elm tree takes
The faded leaf away
Twirling it by the window-pane
With thousand others down the lane

I love to see the shaking twig
Dance till the shut of eve
The sparrow on the cottage rig
Whose chirp would make believe

That spring was just now flirting by
In summers lap with flowers to lie

I love to see the cottage smoke
Curl upwards through the naked trees
The pigeons nestled round the coat
On dull November days like these
The cock upon the dung-hill crowing
The mill sails on the heath agoing

The feather from the ravens breast
Falls on the stubble lea
The acorns near the old crows nest
Fall pattering down the tree
The grunting pigs that wait for all
Scramble and hurry where they fall

John Clare