Daily Construction: 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 Construction

Executive Summary (One Minute Read)
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
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
Summaries With Link (Five Minute Read)
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.
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.