| Australian Competition and Consumer Commission v Chrisco Hampers Australia Ltd (FCA) - consumer law - supply of Christmas hampers to customers - breaches of Australian Consumer Law established (I B) |
| The Owners – Strata Plan No 74602 v Brookfield Australia Investments Ltd (NSWSC) - leave to reopen - proceedings concerning alleged defects in strata title residential development - leave to reopen case to tender emails, photographs and documents refused (I B C) |
| Buses + 4WD Hire Pty Ltd v Oz Snow Adventures Pty Ltd (NSWSC) - negligence - bus crash - unusual order sought pursuant to r7.8 Uniform Civil Procedure Rules 2005 (NSW) refused (I B) |
| Stealth Enterprises Pty Ltd trading as The Gentleman’s Club v Calliden Insurance Ltd (No 2) (NSWSC) - costs - offer of compromise - indemnity costs ordered in favour of successful defendant (I) |
| GLS v Goodman Group Pty Ltd (VSC) - solicitor’s’ costs agreement - dismissal of application for costs review on basis of “accord and satisfaction - appeal dismissed (I) |
| Orbito Nominees Pty Ltd v Betts Nominees Pty Ltd (WASC) - subpoena - legitimate forensic purpose - abuse of process - application to set aside subpoenas dismissed (B) |
| Lazarus v Azize (ACTSC) - defamation - stay or dismissal of proceedings refused - leave granted to amend statement of claim (I) |
| Summaries With Link (Five Minute Read) |
Australian Competition and Consumer Commission v Chrisco Hampers Australia Ltd [2015] FCA 1204
Federal Court of Australia
Edelman J
Consumer law - applicant claimed respondent contravened Australian Consumer Law (ACL) in course of supplying customers with Christmas hampers - respondent’s contracts contained term (HeadStart term) requiring customers to allow it to withdraw funds from customer’s bank account even after full payment made for goods - term applied unless opted out of - whether HeadStart term “unfair term” under s24 ACL - whether HeadStart term caused significant imbalance in parties’ rights and obligations under contract - duty in s97(3) ACL on supplier who was party to lay-by agreement to “ensure” amount of termination charge not more than supplier’s reasonable costs - whether Chrisco contravened s29(1)(m) ACL by making false or misleading representation that consumer could not cancel lay-by agreement once order fully paid and before delivery of goods - held: term was unfair - ACCC did not prove respondent contravened s97(3) by agreements’ cancellation charges - respondent’s representation in website terms and conditions and Order Confirmation that “your order cannot be cancelled once it is fully paid for” contravened s29(1)(m) ACL - parties to confer on programme for hearing of issues on penalty and consequential orders.
ACCC (I B)
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The Owners – Strata Plan No 74602 v Brookfield Australia Investments Ltd [2015] NSWSC 1682
Supreme Court of New South Wales
Stevenson J
Leave to reopen - alleged defects in strata title residential development - plaintiff was owners corporation - plaintiff sued builder and builder’s sub-contractor - plaintiff sought leave to reopen its case to tender emails, documents and photographs - relevance of material - explanation for failure to adduce evidence - prejudice - possibility of need to reconvene hearing - Evidence Act 1995 (NSW) - held: Court not prepared to allow owners corporation to reopen its case - motion dismissed.
The Owners (I B C)
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Buses + 4WD Hire Pty Ltd v Oz Snow Adventures Pty Ltd [2015] NSWSC 1687
Supreme Court of New South Wales
Schmidt J
Negligence - bus accident in which bus hired by first plaintiff to first and/or second defendant, driven by second plaintiff crashed through guardrail and rolled down embankment injuring passengers - proceedings commenced in District Court and transferred to Supreme Court - plaintiffs sought unusual order pursuant to r7.8 Uniform Civil Procedure Rules 2005 (NSW) that senior associate of law firm be appointed to conduct issues between first plaintiff and first and second defendants - motion supported by plaintiffs’ solicitor who was acting for statutory insurer under policy issued to first plaintiff - defendants and senior associate opposed order - law firm acted for property insurer of bus and senior associate had carriage of matter - held: Court not satisfied order sought could justly be made given senior associate’s interest in proceedings flowed only from employment by law firm and current retainer with insurer - problems lying between first plaintiff, insurer of bus and the defendants must be resolved in some other way - motion dismissed.
Buses (I B)
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Stealth Enterprises Pty Ltd trading as The Gentleman’s Club v Calliden Insurance Ltd (No 2) [2015] NSWSC 1691
Supreme Court of New South Wales
Schmidt J
Costs - judgment given for defendant in proceedings - defendant sought indemnity costs on basis of offer of compromise - defendant contended offer of compromise did not reflect genuine compromise - whether rejection of offer unreasonable - whether judgment no less favourable than terms of offer - rr42.15A & 101(4) Uniform Civil Procedure Rules 2005 (NSW) - held: there was real compromise by defendant - by refusing offer of compromise, plaintiff took risk it would be ordered to pay defendant’s costs on indemnity basis if it failed to establish case - no basis on which Court could justly order otherwise - indemnity costs ordered.
Stealth (I)
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GLS v Goodman Group Pty Ltd [2015] VSC 627
Supreme Court of Victoria
Macaulay J
Solicitor’s costs agreement - firm charged client amount in legal fees and disbursements for legal services - client sought review of costs under Div 7, Pt 3.4 Legal Profession Act 2004 (Vic) - firm sought summary dismissal of application on basis parties reached accord and satisfaction in respect of outstanding fees - Court dismissed application - client appealed - r77.06 Supreme Court (General Civil Procedure) Rules 2005 (Vic) - evidence - agency - whether conveyancer was client’s agent with authority to bind client - held: no legal error in holding parties reached accord and satisfaction in relation to legal fees and rights of review - appeal in relation to agency and ‘contracting out’ issues failed - appeal dismissed.
GLS (I)
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Orbito Nominees Pty Ltd v Betts Nominees Pty Ltd [2015] WASC 431
Supreme Court of Western Australia
Master Gething
Subpoena - plaintiff sought to set aside subpoenas on ground of abuse of process - application made in context of application pursuant to s77 Trustees Act 1962 (WA) (TA) to remove trustee of unit trust - plaintiff submitted each subpoenas sought material which had no apparent relevance to issues or legitimate forensic purpose - O36B Rules of the Supreme Court 1971 (WA) - held: application to set aside subpoenas failed - application dismissed.
Orbito (B)
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Lazarus v Azize [2015] ACTSC 344
Supreme Court of the Australian Capital Territory
Mossop AsJ
Stay - dismissal - pleadings - defamation - first, second, fourth and fifth defendants sought dismissal or stay of plaintiff’s action - plaintiff sought leave to amend statement of claim - s139E Civil Law (Wrongs) Act 2002 (ACT) - ss16 & 21 Human Rights Act 2004 (ACT) - ss56 & 60 Civil Procedure Act 2005 (NSW) - rr430 & 433 Court Procedures Rules 2006 (ACT) - r13.4 Uniform Civil Procedure Rules 2005 (NSW) - held: proportionality did not indicate present case was abuse of process - dismissal or permanent stay refused - plaintiff granted leave to amend statement of claim.
Lazarus (I)
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