Daily Banking
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Preview: Impugned Evidence – Orreal v The Queen [2021] HCA 44
with Stephen Keim SC and Peter Richards |
| In this edition of BenchTV, Stephen Keim SC (Senior Counsel, Higgins Chambers, Brisbane) and Peter Richards (Barrister, Brisbane) discuss the recent High Court decision of Orreal v The Queen [2021] HCA 44 and its implications for when, how and why ‘the proviso’ should be applied in criminal matters where there has been a miscarriage of justice.
Subscribers can watch the full video at:
Bench TV CPD
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IMPACT OF COVID-19 ON THE LEGAL PROFESSION
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The Law Society of NSW has created a dedicated COVID-19 page with updates for the legal profession on courts, CPD events, legislation and social distancing requirements -
click here
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Executive Summary and Podcast (One Minute Read)
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| Pirmax Pty Ltd v Kingspan Insulation Pty Ltd (FCA) - consumer law - misleading and deceptive conduct - representations by market participants about qualities of one participant's product - whether counter-marketing campaign was misleading, deceptive or false - relief - application dismissed, cross-claim upheld
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| Dennis v Commonwealth Bank of Australia (FCA) - banking - two appeals - alleged contraventions of provisions of the National Consumer Credit Protection Act 2009 (Cth) by the Bank - appeal dismissed - appeal from refusal of primary judge declining to dismiss respondent's claim for a breach of s160D NCCPA - appeal allowed
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| Baptcare Ltd v Thomas Ingpen & Anor (VSCA) - practice and procedure - amendment of pleadings - primary judge did not address competing interest of applicant in ventilating arguable defence - no consideration of prejudice to applicant by it being prevented from raising arguable grounds of defence - leave to appeal granted - appeal allowed
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Summaries With Link (Five Minute Read)
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Pirmax Pty Ltd v Kingspan Insulation Pty Ltd [2022] FCA 1340
Federal Court of Australia
Snaden J
Consumer law - applicant alleges respondent engaged in an unlawful campaign aimed at damaging its business by means of untrue, public representations about one of applicant's products - alleged representations to the effect that product failed to comply with National Construction Code (NCC) concerning fire hazard properties - applicant alleges respondent engaged in misleading or deceptive conduct in contravention of ss8 and 29(1)(g) of the Australian Consumer Law and committed tort of injurious falsehood - respondent alleges in cross-claim, the marketing and technical materials that applicant produced and publicly disseminated contained untrue representations that overstated the extent to which the product complied with those same requirements in the NCC - applicant moves court for declarations, injunctions, damages, interest and costs - respondent informed court that it would no longer pursue claim for damages - seeks only declarations, injunctions, and costs by way of relief in respect of its cross-claim - applicant objected to admissibility of expert witness evidence - objection based on alleged lack of independence of expert witness - expert witness was previously commissioned to produce a report by the respondent - expert witness's report was used to justify alleged representations - evidence admissible - whether general discretion to exclude evidence under s135 of the Evidence Act 1995 enlivened - evidence held probative value - no representations attended by malice - representations reflected views were genuinely held by respondent - whether declaratory relief warranted - whether injunctive relief should be granted - application dismissed and cross-claim upheld.
Pirmax Pty Ltd |
Dennis v Commonwealth Bank of Australia [2022] FCA 1338
Federal Court of Australia
Collier J
Banking - failure to make loan agreement - two appeals from a decision of the Federal Circuit Court - first appeal filed by Ms Dennis and second appeal filed by Commonwealth Bank of Australia - Ms Dennis appealed Primary Judge's decision to summarily dismiss her claims against the Bank relating to alleged contraventions by the Bank of certain provisions of the National Consumer Credit Protection Act 2009 (Cth) (NCCPA) and the Code of Banking Practice 2013 - Ms Dennis alleged bias on part of the primary Judge only after reasons delivered - no bias on part of the primary Judge demonstrated - whereas a lender is not obligated to provide additional finance to an individual - primary Judge did not err in summarily dismissing her action - primary Judge noted in primary decision the Bank did not engage in any conduct referable to Ms Dennis that would have enlivened the operation of s128 of the NCCPA - no obligation under the NCCPA for a lender to provide an individual with credit, or increase an existing credit limit under an existing contract - primary Judge's findings with respect to the application of s160D of the NCCPA form the basis of ground 3 of first appeal and second appeal of the Bank - s160D(1) of the NCCPA is enlivened only when a person gives relevant information or a document to another person in the course of engaging in a credit activity - Bank declined to provide Ms Dennis with additional finance - Bank did not engage in a credit activity for the purposes of the NCCPA by declining to provide Ms Dennis with additional finance - no statements made in connection with that decision enliven the operation of s160D of the NCCPA - Ms Dennis' appeal dismissed - Bank's appeal allowed.
Dennis |
Baptcare Ltd v Thomas Ingpen & Anor [2022] VSCA 250
Supreme Court of Victoria - Court of Appeal
MaCaulay JA and J Forrest AJA
Practice and procedure - amendment of pleadings - respondent executors of their mother’s estate instituted a proceeding in the County Court against applicant - the mother entered into leases for two units with Templestowe Baptist Church Community Centre Ltd - two loans advanced by the mother to Templestowe Baptist Church under lease terms - applicant assumed rights and liabilities of that company when it acquired relevant Retirement Village - leases terminated upon mother’s death - applicant took possession of the units - applicant gave notice of amendment to the defence given six weeks prior to County Court trial - executors opposed application to amend - amended defence does not enlarge scope of evidence - effect of Retirement Villages Act 1986 and the Retirement Villages (Contractual Arrangements) Regulations 2006 on construction of the terms of the lease and calculation of the repayable amount of the loans - applicant must establish a material error in the House v The King sense, by the judge in the exercise of his discretion; it must also demonstrate that it will suffer substantial injustice if the appeal is refused - draft amended defence contained substantial change to the way in which applicant proposed to resist the executors’ claim - several specific errors on the judge’s part which enliven House v The King principle - judge’s reasons focus on inadequacies of applicant’s conduct and its consequences, but do not address the competing interest of applicant in ventilating an arguable defence - no consideration of the prejudice to applicant by it being prevented from raising arguable grounds of defence - no substantive prejudice to the executors as a result of granting the application - leave to appeal granted - appeal allowed.
Baptcare Ltd |
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