Daily Banking: Thursday, 15 October 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)
Frugtniet v Tax Practitioners Board (FCA) - administrative law - bias - Administrative Appeals Tribunal affirmed Board’s termination of registration as tax agent - appeal allowed - application for review remitted for consideration by differently constituted Tribunal
Basetec Services Pty Ltd v Leighton Contractors Pty Ltd (No 4) (FCA) - security for costs - corporations - case no longer fell within s1335(1) Corporations Act 2001 (Cth) - application for further security refused
Bailey v Director-General, Department of Natural Resources NSW (NSWCA) - malicious prosecution - planning and environment - clearing of native vegetation without consent - malicious prosecution not established - no error in award of indemnity costs - appeal dismissed
Bronzewing Ammunition Pty Ltd v SafeWork New South Wales (NSWSC) - stay - administrative law - Administrative Appeals Tribunal affirmed decision to cancel plaintiffs’ licences under Explosives Act 2003 (NSW) - further stay pending appeal granted
In the matter of PPK Group Ltd (NSWSC) - corporations - statutory demand - genuine dispute and off-setting claim established - statutory demand set aside - indemnity costs
Sutherland & MacKinnon v Di Paolo (VSC) - trusts and trustees - judicial advice on mode of sale of industrial property - public auction appropriate
Camping Warehouse Australia Pty Ltd v Downer EDI Ltd (VSC) - group proceedings - defendant’s opt-out notice approved as basis for opt-out notice to be sent to members subject to expansion and modification
Summaries With Link (Five Minute Read)
Frugtniet v Tax Practitioners Board [2015] FCA 1066
Federal Court of Australia
Jessup J
Administrative law - bias - applicant appealed from decision of Administrative Appeals Tribunal affirming Board’s decisions to terminate his registration as tax agent and preclude him from applying for registration for five years - whether adverse findings against applicant in 2004 made by similarly constituted Tribunal relevant to exercise on which Tribunal embarked in present proceedings - whether applicant waived right to object to constitution of Tribunal - ss251BC(1) & 251J(3) Income Tax Assessment Act 1936 (Cth) - s39B Judiciary Act 1903 (Cth) - ss20-5(1), 20-15, 40-5(1), 60-95, 60-125, 60-195 & 90-1(1) Tax Agent Services Act 2009 (Cth) - held: denial of justice for Tribunal as constituted to have heard and determined applicant’s case amounting to error of law - applicant did not waive right to rely in an appeal on objection he had made to constitution of Tribunal in dealing with application - appeal allowed - application for review remitted.
Basetec Services Pty Ltd v Leighton Contractors Pty Ltd (No 4) [2015] FCA 1093
Federal Court of Australia
Besanko J
Security for costs - corporations - respondent sought further security for costs in proceedings - applicant submitted Court should not order further security because first element in s1335(1) Corporations Act 2001 (Cth) in respect of whether corporation would be able to pay defendant’s costs if successful, was no longer satisfied - consideration of financial statements - short period between application and any adverse costs order - cash reserves -undrawn overdraft facility - held: Court satisfied case no longer fell within s1335(1) - application for further security refused.
Bailey v Director-General, Department of Natural Resources NSW [2015] NSWCA 318
Court of Appeal of New South Wales
Basten, Gleeson & Leeming JJA
Malicious prosecution - planning and environment - appellants owned rural property - first appellant arranged for contractors to clear native vegetation - Director-General, Department of Land and Water Conservation issued summons in Land and Environment alleging breach of s21(2)(a) Native Vegetation Conservation Act 1997 (NSW) - first appellant contended clearing undertaken to construct “farm dam” which was purpose permitting clearing without development consent - charges dismissed - appellants sought damages from respondents for malicious prosecution, negligent misrepresentation, breach of duty and misfeasance in public office - trial judge dismissed proceedings and subsequently awarded costs in defendants’ favour on indemnity basis from date of offer of compromise - dismissal of malicious prosecution action challenged on appeal - held: at trial appellant had failed to establish fundamental propositions necessary to succeed on claim of malicious prosecution - appellant failed to establish any error on part of trial judge or basis for interfering with trial judge’s judgment in respect of costs - appeal dismissed.
Bronzewing Ammunition Pty Ltd v SafeWork New South Wales [2015] NSWSC 1494
Supreme Court of New South Wales
Davies J
Stay - administrative law - first plaintiff held two licences issued by defendant under Explosives Act 2003 (NSW) - defendant cancelled licences on basis first defendant breached conditions of its licenses and plaintiffs not fit and proper persons to hold licence or security clearance - plaintiffs sought continuation of stay of Appeal Panel of Civil and Administrative Tribunal New South Wales decision to affirm defendant’s decision pending appeal - public safety - length of existing stay - whether arguable grounds of appeal - impact on plaintiffs if stay not granted - balance of convenience - held: Court satisfied status quo should be preserved pending determination of appeal - further stay granted.
In the matter of PPK Group Ltd [2015] NSWSC 1498
Supreme Court of New South Wales
Black J
Corporations - statutory demand - plaintiff pursuant to s 459H Corporations Act 2001 (Cth) sought to set aside creditor's statutory demand served by first defendant - Sch2, ss18 & 236 Competition and Consumer Act 2010 (Cth) - ss459H, 459H(1), 459H(2), 459H(5) Corporations Act 2001 (Cth) - ss191 & 195 Work Health and Safety Act 2011 (NSW) - held: genuine dispute established in relation to amount claimed in demand - off-setting claim established - basis for indemnity costs established - creditor’s statutory demand set aside -defendants to pay costs on indemnity basis.
Sutherland & MacKinnon v Di Paolo [2015] VSC 552
Supreme Court of Victoria
Sifris J
Trusts and trustees - applicants appointed by Court as trustees of trust in substitution for previous trustee - appointment made in proceedings arising from dispute between respondents - respondents were beneficiaries of trust and directors of former trustee - trustees taking steps to liquidate the trust’s assets - dispute between beneficiaries as to manner in which industrial property should be sold - trustees sought judicial advice - O 54 Supreme Court (General Civil Procedure) Rules 2005 (Vic) - rival contentions concerning public auction and expression of interest or tender - transparency - held: public auction preferable - public auction sufficiently flexible to enable best price to be obtained in transparently competitive process within reasonable time - public auction entirely appropriate mode of sale of property.
Camping Warehouse Australia Pty Ltd v Downer EDI Ltd [2015] VSC 555
Supreme Court of Victoria
Sifris J
Group proceedings - opt-out notice - group proceeding commenced on behalf of persons who acquired shares in defendant who had claims for loss and damage caused by defendant’s conduct in relation to breach of continuous disclosure obligations under s674 Corporations Act 2001 (Cth) and alleged misleading or deceptive conduct - plaintiff and defendant put forward proposed opt-out notices for approval - nature and extent of earlier settlement and consequent further exposure of defendant - ss33X & 33Y Supreme Court Act 1986 (Vic) - held: plaintiff’s notice apt to mislead and should not be sent out - defendant’s proposed opt-out notice should form basis of opt-out notice to be sent to members, with some expansion and modification.