Insurance, Banking, Construction & Government: Thursday, 16 July 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 Composite

Insurance, Banking, Construction & Government

Executive Summary (One Minute Read)
R (on the application of Evans) and another (Respondents) v Attorney General (Appellant) (UKSC) - administrative law - freedom of information - communications between HRH The Prince of Wales and government department ministers - certificate issued by HM Attorney General quashed - appeal dismissed (I G)
J Cummins Pty Ltd v F & D Bonaccorso (NSWCA) - contract - option agreement - no common intention deposit to be treated as paid - appeal dismissed (I B C)
Tabbaa v TCN Channel Nine Pty Ltd (NSWSC) - defamation - District Court proceedings transferred to Supreme Court (I)
Gazzana v Santamaria (NSWSC) - partnership - dissolution and winding up - determination of separate questions (I B C)
Fauth v Director of Housing (VSC) - administrative law - residential tenancies - possession order - appeal against VCAT’s decision refused (I G)
Greenmint Pty Ltd v O'Keeffe (VSC) - corporations - statutory demand - deed of loan - valid service - no genuine dispute - application to set aside demand dismissed (B)
Fitzgerald v Tin Shed Distilling Co Pty Ltd (SASC) - corporations - company wound up on just and equitable ground (B)
Davis Samuel Pty Ltd v Commonwealth of Australia (ACTCA) - security for costs - Court not persuaded to make order for security for costs - fifth appellant removed (I B)
Summaries With Link (Five Minute Read)
R (on the application of Evans) and another (Respondents) v Attorney General (Appellant) [2015] UKSC 21
Supreme Court of the United Kingdom
Lord Neuberger, President; Lady Hale, Deputy President; Lord Mance, Lord Kerr, Lord Wilson, Lord Reed & Lord Hughes
Administrative law - freedom of information - appeal concerning whether communications passing between HRH The Prince of Wales and ministers in various government departments should be disclosed pursuant to a request of  journalist who worked on Guardian newspaper - HM Attorney General appealed against Court of Appeal’s decision to quashing certificate he issued pursuant to section 53(2) Freedom of Information Act 2000 (FOI 2000) and regulation 18(6) Environmental Information Regulations 2004 (re. 18(6) - Court of Appeal quashed certificate on grounds Attorney General’s reasons were not capable of constituting “reasonable grounds” and that insofar as advocacy correspondence concerned with environmental issues the certificate was incompatible with Council Directive 2003/4/EC (2003 Directive) - held (by majority): Attorney General not entitled to issue certificate under s53 (FOIA 2000) in manner in which it was issued - certificate invalid - reg.18(6) was incompatible with 2003 Directive and must also be treated as invalid with result certificate invalid in any event to extent it related to environmental information - appeal dismissed.
R (I G)
J Cummins Pty Ltd v F & D Bonaccorso [2015] NSWCA 200
Court of Appeal of New South Wales
Beazley P; Ward & Leeming JJA
Contract - evidence - credit - appellant sought rectification of option agreement it entered with respondent, and order for specific performance of rectified agreement - agreement preceded by an earlier option agreement not exercised prior to its expiry - second option agreement provided for higher purchase price - whether common intention at time second option agreement entered that stated deposit to be treated as if paid - trial judge found no such common intention established - held: trial judge justified in not accepting evidence of appellant’s principal of an arrangement outside formal contract documents - evidence did not support principal’s version of events - there was evidence that developer interested in property at higher price than in either option agreement - appellant’s contention rejected that price in second agreement was commercially irrational - appeal dismissed.
JCummins (I B C)
Tabbaa v TCN Channel Nine Pty Ltd [2015] NSWSC 920
Supreme Court of New South Wales
McCallum J
Transfer of proceedings - defamation - plaintiff commenced proceedings arising from broadcast of segment on ‘60 Minutes’ programme on Channel Nine television concerning alleged forced marriage - plaintiff commenced separate proceeding in District Court in respect of short segment on Channel Nine early news reporting abridged version of same story and also sued on further segment - Channel Nine entities sought to have District Court proceedings transferred to Supreme Court pursuant to s140 Civil Procedure Act 2005 (NSW) - held: Court concluded District Court proceedings should be transferred to Supreme Court - efficiencies of cost and time - prospects of overlap in defences - at least on the cards that defendant would seek to justify imputations and in order to do so it would be necessary to call plaintiff’s daughter as witness - extremely undesirable for daughter to have to give evidence twice - no prejudice to plaintiff - proceedings transferred.
Tabbaa (I)
Gazzana v Santamaria [2015] NSWSC 916
Supreme Court of New South Wales
Ball J
Partnership - dissolution and winding up - separate questions - proceedings concerning winding up of partnership carried on by plaintiff and first defendant - separate determination of questions concerning assets and liabilities of partnership and whether partners reached agreement on their division - ownership of equipment - whether certain work did not fall within terms of partnership - s42 Partnership Act 1892 (NSW) - separate questions answered.
Gazzana (I B C)
Fauth v Director of Housing [2015] VSC 320
Supreme Court of Victoria
Derham AsJ
Administrative law - plaintiff signed Residential Tenancy Agreement with Director of Housing to live at property - Victorian Civil and Administrative Tribunal reheard application by Director for possession order and confirmed original order - plaintiff sought leave to appeal - plaintiff submitted VCAT did not have jurisdiction because reasons in notice to vacate were not valid, and that VCAT not entitled to make possession order because danger to safety of occupiers not continuing at time notice to vacate issued - ss244, 319 & 322 Residential Tenancies Act 1997 (Vic) - held: notice contained sufficient particulars - second ground of appeal not valid ground of appeal - not open to applicant for leave to appeal to challenge findings of fact - leave to appeal refused.
Fauth (I G)
Greenmint Pty Ltd v O'Keeffe [2015] VSC 326
Supreme Court of Victoria
Gardiner AsJ
Corporations - statutory demand - plaintiff sought pursuant to s459G Corporations Act 2001 (Cth) to set aside statutory demand served on it by defendant - plaintiff contended there was genuine dispute in respect of demand - whether service of application in compliance with s459G(1) - whether genuine dispute - held: service was valid - legal question whether interest provision in deed of loan constituted a penalty was not arguable so as to give rise to a genuine dispute - application to set aside statutory demand dismissed.
Greenmint (B)
Fitzgerald v Tin Shed Distilling Co Pty Ltd [2015] SASC 97
Supreme Court of South Australia
Master Dart
Corporations - winding up - three couples went into venture together and conducting business through vehicle of small proprietary company - relationship broke down - second plaintiff shareholder sought to wind up company on just and equitable ground under s461(1)(k) Corporations Act 2001 (Cth) - held: all facts and circumstances were such that it was appropriate to wind company up on just and equitable ground - company wound up.
Fitzgerald (B)
Samuel Pty Ltd v Commonwealth of Australia [2015] ACTCA 30
Court of Appeal of the Australian Capital Territory
Burns J
Security for costs - appellants appealed from orders holding them liable to repay large sums on money to the Commonwealth of Australia - Commonwealth sought that fifth appellant be removed as appellant and security for costs - held: Court ultimately persuaded it should not make order for security for costs -  appellants’ impecuniosity arose from orders under appeal - appellants’ right to proceed should not be effectively denied to them by order for security for costs - some appeal grounds arguable - appellants did not object to removal of fifth appellant - appellant removed.
Davis (I B)