A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.


Tuesday, 17 February 2015

Executive Summary (One Minute Read)
Lavin v Toppi (HCA) - guarantee - sureties entitled to recover contribution from co-sureties despite creditor’s covenant not to sue co-sureties - appeal dismissed
Sydney Night Patrol & Inc Co v Absolom (NSWSC) - worker’s compensation - jurisdictional error by Medical Appeal Panel - decision quashed
Falkingham v Peninsula Kingswood Country Golf Club (VSCA) - corporations - oppressive conduct - laches - acquiescence - delay - appeal dismissed
Di Paolo v Salta Constructions Pty Ltd (VSC) - choice of law - workplace injury - limitations - uniform cross-border compensation legislation
James as Administrator of ZYL LTD (WASC) - corporations - resolution appointing administrator without statutory minimum number of directors - appointment confirmed
Stewart v Ackland (ACTCA) - negligence - student injured performing backward somersault on jumping pillow on farm – occupiers of farm who conducted amusement park business liable - appeal dismissed
Summaries With Link (Five Minute Read)
Lavin v Toppi [2015] HCA 4
High Court of Australia
French CJ; Kiefel, Bell, Gageler & Keane JJ
Guarantee - contribution in equity - bank consolidated loans into loan to company - parties were guarantors of loan - bank made demands on guarantors - demand not met - bank sued guarantors - appellants and bank entered deed of release and settlement  - bank covenanted not to sue appellants if first appellant paid minor portion of debt - first appellant paid portion - respondents paid remaining debt - respondents claimed contribution from appellants in respect of payment in excess of their proportionate share of debt - coordinate liabilities - held: Court of Appeal of New South Wales correct to hold bank’s covenant not to sue did not extinguish appellants’ liability under guarantee - respondents’ entitlement in equity to contribution from time parties were called upon to satisfy guarantee could not be defeated by bank giving appellants covenant - appeal dismissed.
Sydney Night Patrol & Inc Co v Absolom [2015] NSWSC 60
Supreme Court of New South Wales
Harrison AsJ
Workers compensation - plaintiff sought judicial review of decision of Medical Appeal Panel due to its failure to convene open oral assessment hearing - plaintiff sought to quash decision on basis Appeal Panel failed to take into account a matter it was required to take into account when determining not to hold hearing on erroneous understanding that parties consented to matter being determined on the papers - held: Appeal Panel failed to take into account mandatory consideration whether or not to conduct hearing where party could make oral submissions - jurisdictional error established - decision quashed.
Sydney Night Patrol & Inc Co
Falkingham v Peninsula Kingswood Country Golf Club [2015] VSCA 16
Court of Appeal of Victoria
Warren CJ; Whelan & Beach JJA
Corporations - oppression - members of golf club passed ordinary resolution directing and empowering board of directors to give effect to merger of their club with another club - appellant member of golf club sought relief and declarations under oppression provisions of Corporations Act 2001 (Cth) - trial judge found board exercised its power to admit new members for purpose other than that for which power had been conferred and that the conduct was oppressive - Court however refused relief and dismissed proceeding because of laches, acquiescence and delay - ss232 & 233 - held: parties accepted that decision on laches, acquiescence and delay was a discretionary judgment - appellant failed to establish error to overturn judgment - trial judge correct in finding board exercised its power for purpose other than that for which it was conferred by the Constitution - appeal dismissed.
Di Paolo v Salta Constructions Pty Ltd [2015] VSC 31
Supreme Court of Victoria
Ginnane J
Choice of law - limitations - plaintiff sued defendants for workplace injuries sustained in Perth - plaintiff was resident of the State of Victoria and working in Perth at time of accident - plaintiff contended law of Victoria governed proceeding -  effect of national uniform legislation for coverage of workers operating temporarily in another jurisdiction - limitation period governing claims - ss80, 129MA & 129MB Accident Compensation Act 1985 (Vic) – ss20, 93AA, 93AB Workers’ Compensation and Injury Management Act 1981 (WA) (WCIMA) - held: plaintiff’s claims governed by substantive law, including applicable limitation periods, of common law of Western Australia, unmodified by Div 1a Pt IV Workers’ Compensation and Injury Management Act 1981 (WA).
Di Paolo
James as Administrator of ZYL LTD [2015] WASC 57
Supreme Court of Western Australia
Master Sanderson
Corporations - plaintiff appointed administrator of company by resolution of company pursuant to s436A Corporations Act 2001 (Cth) - plaintiff sought orders addressing uncertainty he considered existed in relation to validity of resolution and appointment - ss201A, 447A, 447C, 1311 & 1312 - requisite number of directors under s201A(2) - held: Court satisfied there was breach of s201A(2) - it was arguable resolution passed was invalid - pt 5.3A of the Act operated to effect that notwithstanding non-compliance with s201A(2) plaintiff was validly appointed as administrator of company pursuant to s436A -  directors had acted bona fide - no-one was prejudiced by decision - appointment of administrator confirmed.
Stewart v Ackland [2015] ACTCA 1
Court of Appeal of New South Wales
Penfold J; Walmsley & Robinson AJJ
Negligence - appellants were owner/occupiers of farm on which they conducted business involving amusement park - respondent university student injured when performing aerial backward somersault on jumping pillow owned by owner/occupiers - trial judge found owner/occupiers liable for respondent’s injuries - held: trial judge correctly decided activity in which respondent was engaged when injured was a dangerous recreational activity - no error in finding that risk was not obvious - open to trial judge to find breach of duty by appellants and that causation established - appeal dismissed.