| Stuart Olson Dominion Construction Ltd. v. Structal Heavy Steel (SCC) - trusts - liens - interaction between statutory remedies of construction liens and statutory trusts in provincial legislation - trust and lien provisions existed separately and could be concurrently pursued - appeal dismissed |
| North Australian Aboriginal Justice Agency Limited v Northern Territory (HCA) - statutory interpretation - constitutional law - challenge to validity of Div 4AA of Pt VII Police Administration Act (NT) failed - matter remitted to single Justice for further directions |
| TriCare (Hastings) Ltd v Allen (NSWCA) - competency of appeal - appeal misconceived and incompetent because brought against reasons, not “judgment or order” - appeal dismissed |
| The White Ant Co Pty Ltd v Robson (NSWCA) - contract - deed of arrangement - liability term not enlivened - appeal allowed |
| Hunter Development Corporation v Save Our Rail NSW Incorporated (NSWCA) - administrative law - acquisition of land - assets did not vest in appellant under Transport Administration Act 1988 (NSW) - appellant was not a “rain infrastructure owner” - appeal allowed |
| JM & PM Holdings Pty Ltd v Snap-on Tools (Australia) Pty Ltd (NSWCA) - contract - franchise agreement - “monthly cash flow projection” spreadsheet not relied on in decision to enter agreement - appeal dismissed |
| Haixing Group Pty Ltd v Chan (NSWSC) - real property - contract - no serious question to be tried that plaintiff validly exercised call option under deed - no order for extension of operation of caveat - leave not granted to lodge further caveat |
| Re Hammond (VSC) - real property - modification of restrictive covenant to remove singular expression and replace it plurally |
| Nichols v Earth Spirit Home Pty Ltd (QCA) - building contract - no error in decision that oral building contract was enforceable - leave to appeal granted - appeal dismissed |
| Meyer v Cool Chilli Pty Ltd (ACTSC) - work injury - negligence - worker injured in slip and fall from ladder - employer negligent - breaches of statutory duty by employer and third party - third party liable to employer for 25% contribution |
| Summaries With Link (Five Minute Read) |
Stuart Olson Dominion Construction Ltd. v. Structal Heavy Steel, 2015 SCC 43
Supreme Court of Canada
McLachlin C.J. and Rothstein, Cromwell, Moldaver, Wagner, Gascon & Côté JJ
Trusts - liens - appellant was general contractor - respondent was subcontractor for construction project - respondent filed builder’s lien against property on which work being done - appellant filed lien bond in amount of respondent’s claim and sought declaration it had satisfied its trust obligations - respondent sought payment of its past-due invoices upon appellant receiving funds from owner - Court of Appeal overturned decision of motion judge that security in form of lien bond extinguished appellant’s trust obligations pursuant to Manitoba Builders’ Liens Act - Court of Appeal concluded subcontractors had two rights to sue for breach of contract beyond common law right: right to statutory trust and right to file lien - interaction of statutory remedies of construction liens and statutory trusts in provincial legislation - held: trust and lien provisions independent and could be pursued concurrently under s66 - lien bond secured contractor’s or subcontractor’s lien claim and did not extinguish obligations under statutory trust - filing of lien bond did not affect existence and application of trust remedy - appeal dismissed.
Stuart Olson Dominion
[From Benchmark Wednesday, 11 November 2015]
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North Australian Aboriginal Justice Agency Limited v Northern Territory [2015] HCA 41
High Court of Australia
French CJ; Kiefel, Bell, Gageler, Keane, Nettle & Gordon JJ
Statutory interpretation - constitutional law - first plaintiff corporation provided legal services to Aboriginal and Torres Strait Islanders - second plaintiff was Aboriginal person resident in Northern Territory arrested by officer or officers of Police Force and taken into custody under s133AB Police Administration Act (NT) - second plaintiff held in custody and issued with infringement notice which recorded offences and provided for payment of fines - plaintiffs alleged Div 4AA of Pt VII in which s133AB appeared was invalid, contending it purported to confer on Executive of the Northern Territory power to detain which was penal or punitive in character and beyond powers of Legislative Assembly of Northern Territory to pass - plaintiffs also contended Division 4AA conferred on Executive of Northern Territory power of detention which undermined or interfered with courts’ institutional contrary to Constitution - second plaintiff also alleged false imprisonment - separate questions - issues of validity - costs of the proceedings - orders to be made in light of answers - held (by majority): plaintiffs' challenge to validity of Div 4AA failed - questions in Special Case answered accordingly - matter remitted to single Justice for further directions.
North Australian
[From Benchmark Thursday, 12 November 2015]
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TriCare (Hastings) Ltd v Allen [2015] NSWCA 344
Court of Appeal of New South Wales
Ward & Simpson JJA; Tobias AJA
Competency of appeal - NSW Civil and Administrative Tribunal (NCAT) terminated residential site agreements concerning respondent’s relocatable dwellings under s113 Residential Parks Act 1998 (NSW) (the Act) and granted appellant vacant possession of land on which dwellings located - NCAT awarded respondents compensation pursuant to s128 - respondents sought judicial review of NCAT’s findings - appellant sought to challenge primary judge’s obiter observations concerning construction of s130A regarding valuation of dwellings - appellant also sought variation of primary judge’s remittal order in light of its construction of s130A - s101(1)(a) Supreme Court Act 1970 (NSW) - held: appeal misconceived and incompetent because it was brought against reasons not “judgment or order” - appeal dismissed as incompetent.
TriCare
[From Benchmark Wednesday, 11 November 2015]
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The White Ant Co Pty Ltd v Robson [2015] NSWCA 345
Court of Appeal of New South Wales
Macfarlan & Gleeson JJA; Emmett AJA
Contract - appellant contractor and respondents (homeowner) made deed of arrangement relating to termite infestation in house Homeowner constructed on property - homeowner claimed contractor liable under deed to pay reasonable costs of rectification of damage - District Court judge gave judgment for homeowner - contractor contended primary judge erred in drawing inference there was evidence of actual damage caused by termites and in finding contractor liable under deed - construction of deed - whether clause of deed (liability term) enlivened other than by operation of deed’s other provisions - held: primary judge’s conclusion that contractor was liable had been based not on operative provisions of deed but on estoppels binding contractor as consequence of entering deed - homeowner’s construction of deed rejected - clause of deed (liability term) was not enlivened - leave to appeal revoked insofar it related to quantification of damages - appeal allowed.
The White Ant
[From Benchmark Thursday, 12 November 2015]
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Hunter Development Corporation v Save Our Rail NSW Incorporated [2015] NSWCA 34
Court of Appeal of New South Wales
Beazley ACJ; Macfarlan & Meagher JJA
Administrative law - appellant entered agreements for acquisition of land and assets from RailCorp - first respondent sought to restrain RailCorp, Transport NSW and appellant from acting contrary to law in disposing of land or undertaking proposed removal works - first respondent relied on s99A Transport Administration Act 1988 (NSW) which provided that a “rail infrastructure owner” must not close railway line unless authorised by Act of Parliament - no such Act at time of proceedings below or on appeal - appellant appealed against trial judge’s declaration that assets had “vested by or under” Act and appellant had become a “rail infrastructure owner - first respondent cross-appealed against trial judge’s finding that land transfer did not constitute closure of a railway line and RailCorp had not “otherwise disposed of” under s99A - held: Ministerial direction to RailCorp under s3B required it to sell assets but did not effect a transfer to or vesting of assets in appellant - assets vested in appellant pursuant to Asset Sale Agreement - assets did not “vest” in appellant “by or under” Act -appellant was not a “rail infrastructure owner” - appeal allowed - cross-appeal dismissed.
Hunter
[From Benchmark Thursday, 12 November 2015]
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JM & PM Holdings Pty Ltd v Snap-on Tools (Australia) Pty Ltd [2015] NSWCA 347
Court of Appeal of New South Wales
Macfarlan & Leeming JJA; Emmett AJA
Contract - franchise agreement - first appellant franchisee entered franchise agreement with respondent franchisor which gave franchisee right to operate a “Snap-on” franchise - franchisee fell into arrears - agreement terminated - franchisor sued franchisee and second appellant director and shareholder of franchisee for recovery of debt - director sued on a guarantee - franchisor obtained judgment against appellants - appellants had cross-claimed based on contraventions of ss52 & 51AD Trade Practices Act 1974 (Cth) in relation to “monthly cash flow projection” spreadsheet (document) given to director before entry into agreement - primary judge found aspects of document misleading but found director did not rely on it when entering into agreement - appellants challenged dismissal of cross-claim - held: no appellable error demonstrated in primary judge’s findings that document not relied on in decision to enter agreement - appeal dismissed.
JM & PM Holdings
[From Benchmark Friday, 13 November 2015]
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Haixing Group Pty Ltd v Chan [2015] NSWSC 1637
Supreme Court of New South Wales
Darke J
Real property - contract - parties entered Deed of Put and Call Option in respect of property - defendant registered proprietor entered deed as grantor - plaintiff entered deed as grantee - deed provided call option granted by defendant to plaintiff in respect of property in consideration of call option fee - after deed made plaintiff lodged caveat over the Property claiming an interest as grantee of option - plaintiff purported to exercise the call option - defendant disputed plaintiff validly exercised call option - defendant served notice of proposed lapsing of caveat - plaintiff sought declaratory relief that it validly exercised call option and defendant bound by contract attached to deed - plaintiff also sought extension of operation of caveat or leave to lodge further caveat claiming interest as holder of purchaser’s lien - whether serious question to be tried that plaintiff validly exercised call option - s74K Real Property Act 1900 (NSW) - construction of deed - held: there was not a serious question to be tried that plaintiff validly exercised call option - Court not satisfied plaintiff’s claimed interest in property as grantee had or may have substance within meaning of s74K(2) - no order for extension of operation of caveat - leave not granted to lodge further caveat.
Haixing
[From Benchmark Monday, 9 November 2015]
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Re Hammond [2015] VSC 608
Supreme Court of Victoria
Mukhtar AsJ
Real property - restrictive covenant - purchaser of land in residential subdivision made restrictive covenant not to erect any building on land other than ‘a’ private dwelling house - plaintiff successors to covenantor sought under s 84(1)(c) Property Law Act 1958 (Vic) to modify covenant to remove singular expression and replace it plurally with ‘any buildings other than private dwelling houses’ - plaintiffs contended modification would not substantially injure persons entitled to restriction’s benefit - held: no substantial injury would be caused by covenant being modified - order made modifying covenant by replacing the expression ‘any building other than a private dwelling house of stone or brick’ with the expression ‘any buildings other than private dwelling houses’ - application granted.
Re Hammond
[From Benchmark Monday, 9 November 2015]
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Nichols v Earth Spirit Home Pty Ltd [2015] QCA 219
Court of Appeal of Queensland
M McMurdo P, Philipides JA & Boddice J
Building contract - applicant sought leave to appeal against Queensland Civil and Administrative Tribunal decision to uphold enforcement of oral building contract between applicant and respondent - respondent sought to support decision on basis it was entitled to recover judgment sum on restitutionary basis - whether wholly oral building contract enforceable under provisions of Queensland Building and Construction Commission Act 1991 (Qld) and public policy - ss67E(2) & 67G - held: Appellate Tribunal correctly found oral contract not unenforceable due to fact respondent committed offence by entering building contract which was not reduced to writing - Appeal Tribunal also correctly found nothing in s67E(2) required finding that contract was unenforceable - no good reasons of public policy to support conclusion contract unenforceable - leave to
Nichols
[From Benchmark Tuesday, 10 November 2015]
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Meyer v Cool Chilli Pty Ltd [2015] ACTSC 336
Supreme Court of the Australian Capital Territory
Mossop AsJ
Work injury - negligence - breach of statutory duty - apportionment - plaintiff worked in IT support role for defendant employer - plaintiff working at premises of third party - while plaintiff climbing ladder to get into ceiling space it slipped from beneath her and she injured herself - plaintiff sued employer in negligence - employer issued third-party notice against third party seeking contribution or indemnity - ss21 & 168 Civil Law (Wrongs) Act 2002 (ACT) - s24 Scaffolding and Lifts Act 1912 (ACT) - Workers Compensation Act 1951 (ACT) - ss6, 7, 73 & 80 Scaffolding and Lifts Regulation 1950 (ACT) - held: employer breached duty of care to plaintiff and was liable for damage caused by accident - no contributory negligence - third party claim failed insofar as relied on allegation of negligence - work being carried out was building work under Scaffolding and Lifts Act - both third party and employer breached s73 Scaffolding and Lifts Act when they carried out work in ceiling space - employer breached s80(7) Scaffolding and Lifts Act - appropriate contribution from third party was 25% - judgment for plaintiff against employer - judgment for employer against third party.
Meyer
[From Benchmark Friday, 13 November 2015]
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