| Moreton Bay Regional Council v Mekpine Pty Ltd (HCA) - real property - resumption of land - leases and tenancies - sub-division of land - extent of tenant's interest in land under lease of premises - appeal allowed
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| R v Independent Broad-based Anti-corruption Commissioner (HCA) - statutory interpretation - Independent Broad-based Anti-corruption Commission Act 2011 (Vic) authorised Independent Broad-based Anti-corruption Commission to examine police officers in relation to “Operation Ross” investigation into police officers' conduct - appeal dismissed
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| Woodlawn Capital Pty Ltd v Motor Vehicles Insurance Ltd (NSWCA) - contract - proceedings arising from termination of agreements for provision of investment and asset management services - appeal allowed in part - cross-appeal dismissed
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| Swift v Wearing-Smith (NSWCA) - negligence - respondent injured in fall from balcony when balustrade gave way - appellant owners not liable
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| McKeith v Royal Bank of Scotland Group PLC; Royal Bank of Scotland Group PLC v James (NSWCA) - contract - employment contract - Royal Bank breached contract by failure to apply redundancy policy to them - damages limited to severance payment
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| Vincent v Woolworths Ltd (NSWCA) - negligence - merchandiser injured in collision with trolley at supermarket - employer and occupier not liable - appeal dismissed
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| Sahade v Bischoff (No 2) (NSWCA) - costs - indemnity costs - joint offer of compromise not capable of acceptance by individual appellant - indemnity costs refused - costs orders made
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| Nitro Circus Touring Australia Pty Ltd v Ilaria Lenzoni (NSWSC) - service - contract - service on defendant in Italy - Italian Authority's certificate of service substantially complied with approved form - plaintiff entitled to default judgment
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| Linfield Developments Pty Ltd v Shuangxing Development Pty Ltd (NSWSC) - contract - development agreement - enforcement of call option - specific performance granted
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| Investec v Butterss (VSC) - banking - facility agreement - assignment - plaintiff entitled to judgment against first defendant for payment of amount owing pursuant to guarantee
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| Bergman v CGU Insurance Ltd (VSC) - insurance - landlord's insurance - fire at property - non-disclosure - misrepresentation - insurer's liability reduced to nil
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| Dual Homes Pty Ltd v Moores Legal Pty Ltd (VSC) - negligence - solicitors' duties - statutory demands - winding up - negligence and misleading and deceptive conduct - damages
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| Australian Dream Homes v Stojanovski (VSCA) - security for costs - termination of domestic building contract - evidence of impecuniosity not compelling - matters of public importance - security for costs of appeal refused
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| Wesfarmers Ltd v Lloyd (VSCA) - accident compensation - serious injury - employee entitled to sue for damages for pain and suffering - leave to appeal refused
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| Schneider v Smith (QSC) - damages - negligence - plaintiff injured in motorcycle accident - liability admitted - assessment of damages - judgment for plaintiff in sum of $447,969.94
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| Australia and New Zealand Banking Group Ltd v Manasseh (WASCA) - contract - guarantee - bank not entitled to payment of amount under guarantee - appeal dismissed
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| Tull v Wolfe (WASC) - summary judgment - defamation - plaintiff pursuing claims against defendants which were subject of absolute privilege - summary judgment granted to defendants
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Dear Subscriber
1. This Benchmark Television broadcast is with The Hon. Ian Coleman SC on inheritances & contributions in family law with Dasith Vithanage
2. Family law and protecting inheritance. This is our fourth session with Ian. Again it is important and will be of public interest as well. There is more to come - there is no better commentator on family law.
3. For Benchmark CLE subscribers we have prepared notes which we will forward to them at their request.
4. Also for Benchmark CLE subscribers at their request we will forward them an advice notice evidencing when they accessed this production.
5. If you are not a CLE subscriber you can subscribe here: https://benchmarkinc.com.au/cle
6. We also have a series of questions for Benchmark CLE subscribers which we will send to them at their request.
7. We will be in the next few days publishing some productions which are exclusively for Benchmark CLE subscribers.
8. You should watch on Wi-Fi to avoid excess data usage charges.
Warm regards
Alan Conolly for Benchmark
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| The Hon. Ian Coleman SC on inheritances & contributions in family law with Dasith Vithanage |
| Family law and protecting inheritance. This is our fourth session with Ian. Again it is important and will be of public interest as well. There is more to come - there is no better commentator on family law. |
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| Summaries With Link (Five Minute Read) |
Moreton Bay Regional Council v Mekpine Pty Ltd [2016] HCA 7
High Court of Australia
French CJ; Kiefel, Bell, Gageler & Nettle JJ
Real property - resumption of land - leases and tenancies - respondent was tenant in shopping centre - respondent's lease was over premises on land (former lot 6) - lessor registered plan of subdivision under Land Title Act 1994 (Qld) (LTA) to amalgamate former lot 6 and an adjacent lot (former lot 1) to form a new lot (new lot 1) - appellant Council resumed part of land - respondent claimed compensation under Acquisition of Land Act 1967 (Qld) (ALA) - extent of respondent's interest in land under lease of premises - ss2 &12(5).ALA - Sched 2, ss12, 49, 49A, 50, 64, 65, 182, 183 & 184 LTA (Qld) - Pt 3 Div 2, ss 3, 5, 6, 7(1), 8, 19, 20, 38(2) & 40(1) Retail Shop Leases Act 1994 (Qld) held: respondent's interest was confined to part of new Lot 1 which previously was within former lot 6 - appeal allowed.
Moreton
[From Benchmark Friday, 11 March 2016] |
R v Independent Broad-based Anti-corruption Commissioner [2016] HCA 8
High Court of Australia
French CJ; Kiefel, Bell, Keane, Nettle & Gordon JJ
Statutory interpretation - appellant police officers summonsed to give evidence at public examination concerning “Operation Ross”, an investigation into conduct of police officers - appellants contended Independent Broad-based Anti-corruption Commission Act 2011 (Vic) (IBAC Act) did not authorise Independent Broad-based Anti-corruption Commission to conduct examination or compel answers to questions which might incriminate an examinee where reasonable grounds to suspect examinee guilty - whether Commission empowered by IBAC Act to conduct examination of persons who had not been, but might subsequently be, charged and put on trial for offence relating to examination - whether s144 IBAC Act abrogated examinee's privilege against self-incrimination - held: appellants' contentions failed - Commission authorised by IBAC Act to examine police officers - appeal dismissed.
IBAC
[From Benchmark Friday, 11 March 2016] |
Woodlawn Capital Pty Ltd v Motor Vehicles Insurance Ltd [2016] NSWCA 28
Court of Appeal of New South Wales
Macfarlan, Ward & Gleeson JJA
Contract - insurance - appellant provided investment and asset management services to respondent - appellant contended agreements' early termination entitled it to retain funds held on trust for respondent for repayment of early termination fees and accrued fees - primary judge held that while there was a statutory right of rescission in respondent's favour, respondent had lost statutory right by not exercising it within a reasonable time and by affirming agreements - primary judge also found agreements validly terminated for default and appellant entitled only to certain accrued fees - appellant challenged orders in relation to pre-judgment interest and costs - respondent contended it had not lost right to rescind agreements - held: appeal dismissed except in relation to operation of indemnity clause to release costs concerning certain issues - cross-appeal dismissed.
Woodlawn
[From Benchmark Thursday, 10 March 2016] |
Swift v Wearing-Smith [2016] NSWCA 38
Court of Appeal of New South Wales
Meagher, Hoeben & Simpson JJA
Negligence - respondent injured when he fell from balcony at rear of appellants' premises when balustrade gave way - respondent alleged appellants negligent by allowing access to balcony - respondent succeeded in claim against appellants - ss5B & 5D(1)(a) Civil Liability Act 2002 (NSW) - appellants' response to recommendations contained in building inspection report - causation - held: primary judge erred in mechanism of balustrade's failure - primary judge's findings as to content of duty of care went beyond appellants' duty to exercise reasonable care - to extent defect identified appellants had acted reasonably - no reason for appellants to believe further structural work required on balustrade - breach of duty not established - appeal allowed.
Swift
[From Benchmark Monday, 14 March 2016] |
McKeith v Royal Bank of Scotland Group PLC; Royal Bank of Scotland Group PLC v James [2016] NSWCA 36
Court of Appeal of New South Wales
Macfarlan JA; Tobias & Emmett AJJA
Contract - employment contract - appellant (McKeith) and respondent (James) were employees of ABN AMRO Group (ABN) who were retrenched in context of third parties' competing takeover offers for ABN - one offeror was Consortium including first respondent Royal Bank - ABN made public statements that if Royal Bank's offer successful, ABN would ensure continuation of its redundancy policy - employees sued ABN and Royal Bank for non-payment of severance and ex gratia payments under policy - James succeeded - McKeith failed - unsuccessful parties appealed - held: ABN did not make contractual promises in relation to continuation of redundancy policy - Royal Bank breached contractual promise to McKeith and James that ABN would continue to apply policy to them - damages limited to severance payment - no breach by Royal Bank by failure to pay ex gratia payment to either McKeith or James.
McKeith
[From Benchmark Tuesday, 15 March 2016] |
Vincent v Woolworths Ltd [2016] NSWCA 40
Court of Appeal of New South Wales
McColl, Macfarlan & Ward JJA
Negligence - appellant part-time merchandiser sued Woolworths and employer in separate proceedings for injuries suffered in course of employment in collision with trolley at supermarket - Woolworths and employer cross-claimed against the other - primary judge found employer not negligent and held there was no breach of duty of care by Woolworths as occupier - primary judge found collision occurred because neither customer or appellant looked where they were going as ordinary care usually required - primary judge found accident resulted from failure of appellant and customer to see each other - held: challenges to findings on negligence and causation failed - not necessary to consider cross-appeals concerning apportionment and contributory negligence - appeal dismissed.
Vincent
[From Benchmark Thursday, 17 March 2016] |
Sahade v Bischoff (No 2) [2016] NSWCA 45
Court of Appeal of New South Wales
Basten & Gleeson JJA; Beech-Jones J
Costs - indemnity costs - appellants' appeal unsuccessful - cross-summons seeking leave to cross-appeal dismissed - ss3, 59 & 60 Civil Procedure Act 2005 (NSW) - Pt 52A r 22 Supreme Court Rules 1970 (NSW) - respondents sought indemnity costs on basis of offer of compromise - rr9, 20, 41, 42, 51 Uniform Civil Procedure Rules 2005 (NSW) - held: respondents' joint offer was not capable of acceptance by only one appellant - terms of r42.15A(1) not engaged - same reasoning if offer treated as Calderbank offer - appellants to pay respondents' costs of appeal - cross-applicants to pay the cross-respondents' costs of the cross-summons - parties to pay own costs of costs application.
Sahade
[From Benchmark Friday, 18 March 2016] |
Nitro Circus Touring Australia Pty Ltd v Ilaria Lenzoni [2016] NSWSC 178
Supreme Court of New South Wales
Hammerschlag J
Service - default judgment - contract - plaintiff sued defendant for amount owing under agreement in which plaintiff granted defendant right to present and promote show - plaintiff sought default judgment - defendant resided in Italy - whether defendant validly served with process by post effected by Italian Authority - Arts 3 - 6 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters - s80 Interpretation Act 1987 (NSW) - s17 Civil Procedure Act 2005 (NSW) - Pt 6 r 6.9(1), Pt 11 rr 11A.1, 11A.3(1), 11A.4(1), (2), 11A.5(1), 11A.6(1), (2), (3), 11A.8, 11A.10 Uniform Civil Procedure Rules 2005 (NSW) - held: certificate of service provided by Italian Authority diverged from approved form but substantially complied with it - process validly served - plaintiff entitled to default judgment.
Nitro Circus
[From Benchmark Thursday, 10 March 2016] |
Linfield Developments Pty Ltd v Shuangxing Development Pty Ltd [2016] NSWSC 68
Supreme Court of New South Wales
Pembroke J
Contract - specific performance - plaintiff sought to enforce a call option contained in development agreement - first defendant was in administration - first defendant agreed to purchase land and entered development agreement with third party plaintiff - development agreement contained call option in plaintiff's favour - event of default occurred - plaintiff called for land under option - main dispute was between plaintiff and sixth defendant - sixth defendant claimed its interest as equitable mortgagee had priority over plaintiff's interest in respect of call option - Australian Consumer Law - Contracts Review Act 1980 (NSW) - credit - contractual construction - contemporaneous notes and documents - held: no genuine dispute about circumstances of plaintiff's exercise of call option - arguments about exercise of option not supportable - plaintiff entitled to relief sought - specific performance granted - judgment for plaintiff.
Linfield
[From Benchmark Wednesday, 16 March 2016] |
Investec v Butterss [2016] VSC 80
Supreme Court of Victoria
Digby J
Banking - facility agreement - plaintiff sought recovery from first defendant under guarantee and indemnity - novation of facility agreement - assignment of facility agreement, novated facility agreement and guarantee from company to plaintiff - held: plaintiff's demand made to first defendant in accordance with guarantee was properly made - first defendant had failed to make payment in accordance with demand - judgment for plaintiff.
Investec
[From Benchmark Thursday, 10 March 2016] |
Bergman v CGU Insurance Ltd [2016] VSC 81
Supreme Court of Victoria
Hargrave J
Insurance - non-disclosure - misrepresentation - plaintiff obtained landlord's insurance for property he purchased - building on property damaged by fire - .property was vacant in preparation for demolition before commencing building works - plaintiff sought cost of rebuilding or repairing damaged portions of buildings - insurer refused payment on basis plaintiff failed to disclose intention to demolish, gave false answer to specific question and suffered no loss because he intended to demolish buildings - held: plaintiff breached s 21(1) Insurance Contracts Act 1984 (Cth) by not disclosing matters relevant to risk - plaintiff's answer to question concerning demolition was false and contained misrepresentation-insurer's liability reduced to nil by s28 - unnecessary to decide whether plaintiff suffered loss - judgment for insurer.
Bergman
[From Benchmark Monday, 14 March 2016] |
Dual Homes Pty Ltd v Moores Legal Pty Ltd [2016] VSC 86
Supreme Court of Victoria
J Dixon J
Negligence - solicitors' duties -proportionate liability - first plaintiff builder and developer was trustee of The Roiniotis Family Trust - second and third plaintiffs were family members and creditors/shareholders of first plaintiff - defendants were solicitor and two firms of which solicitor had been principal or employee - plaintiffs sued defendants for breach of retainer, and misleading or deceptive conduct in breach of s18 Australian Consumer Law in relation to conduct concerning creditor's statutory demands served on first plaintiff and winding up application against first plaintiff - first plaintiff had been wound up in insolvency as a result of application, which was undefended - first plaintiff alleged it was solvent at all times - Court terminated winding up - first plaintiff claimed it suffered loss in relation to winding up - held: liability imposed for wrongful conduct in respect of second statutory demand - advice in relation to winding up application negligent and involved misleading and deceptive conduct - advocate's immunity had some application but defendants not protected from award of damages - damages assessed - liability apportioned - judgment for plaintiffs.
Dual Homes
[From Benchmark Tuesday, 15 March 2016] |
Australian Dream Homes v Stojanovski [2016] VSCA 38
Court of Appeal of Victoria
Santamaria & McLeish JJA
Security for costs - builder sought to appeal decision in which primary found it was not open to Tribunal to hold owners acted unreasonably in terminating domestic building contract - contract was in form of Master Builders Association of Victoria New Homes Contract (HC-6 Edition 1-2007) - owners sought security for costs - Domestic Building Contracts Act 1995 (NSW) - termination provisions of contract - r64.38(2) Supreme Court (General Civil Procedure) Rules 2015 (Vic) - held: evidence of builder's impecuniosity not compelling - there had been delay in seeking security - appeal concerned matters of public importance - security for costs refused.
Australian Dream Homes
[From Benchmark Wednesday, 16 March 2016] |
Wesfarmers Ltd v Lloyd [2016] VSCA 41
Court of Appeal of Victoria
Tate, Osborn & Santamaria JJA
Accident compensation - appellant's employee injured when co-worker accidentally caused forklift to move and crush him - appellant's injuries resolved except back pain - employee sought leave to sue for damages for pain and suffering under s134AB(16)(b) Accident Compensation Act 1985 (Vic) - claim for pecuniary loss not contemplated - primary judge found employee entitled to leave - meaning of “serious injury” in 134AB(37) - held: no error of conclusion of fact to be drawn from evidence or judge's reasoning - trial judge's decision not plainly wrong that ongoing pain and consequences had very considerable dramatic effect on amenity of life - leave to appeal refused.
Wesfarmers
[From Benchmark Thursday, 17 March 2016] |
Schneider v Smith [2016] QSC 47
Supreme Court of Queensland
McMeekin J
Damages - negligence - plaintiff injured in motorcycle accident - liability admitted - assessment of damages - credit - decision to resign from employment - whether plaintiff suffering from psychiatric disorder which impacted on earning capacity - gratuitous care - preconditions of s59 Civil Liability Act 2003 (Qld) - plaintiff's cannabis use - held: damages assessed - judgment for plaintiff in sum of $447,969.94.
Schneider
[From Benchmark Friday, 18 March 2016] |
Australia and New Zealand Banking Group Ltd v Manasseh [2016] WASCA 41
Court of Appeal of Western Australia
McLure P; Buss & Murphy JJA
Contract - guarantee - respondent's husband borrowed money on behalf of company from bank - respondent provided guarantee secured by mortgage - bank contended guarantee continued for subsequent credit contracts offered or made to company - bank sued on one of the subsequent contracts (November 2009 credit contract) - respondent claimed liability came to an end on termination date of extension to guarantee to which she had agreed - respondent did not agree to guarantee November 2009 credit contract - primary judge held there was no misleading or deceptive conduct by bank and that respondent's obligation could only end when company had performed all of its obligations to bank and discharged its liability in full - primary judge held November 2009 credit contract was in substance a replacement agreement which adversely affected respondent's liability under guarantee - respondent would only become liable if she consented or entered into new guarantee - primary judge dismissed bank's claims under guarantee and mortgage dismissed - construction of guarantee - ‘Ankar' principle - held: bank' appeal dismissed.
Australia and New Zealand Banking Group
[From Benchmark Monday, 14 March 2016] |
Tull v Wolfe [2016] WASC 65
Supreme Court of Western Australia
K Martin J
Defamation - two summary judgment applications by defendants in actions brought by common plaintiff - defendants were company and employee of company - actions arising from statement by statements allegedly made by employee - defendants contended actions were hopeless and unarguable - absolute privilege - s27 Defamation Act 2005 (WA) - plaintiff's grievance concerned defendant employee's witness statement prepared for use in unfair dismissal proceedings brought by plaintiff against defendant company in Fair Work Commission - held: Fair Work Commission was an “Australian Tribunal” under s4 - plaintiff was hopelessly pursuing claims which were subject of absolute privilege under s27 - summary judgment granted.
Tull
[From Benchmark Thursday, 10 March 2016] |
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Poem for Friday (Recitation here by Thomas Hellier)
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I would not paint — a picture — (348)
BY EMILY DICKINSON
I would not paint — a picture —
I'd rather be the One
It's bright impossibility
To dwell — delicious — on —
And wonder how the fingers feel
Whose rare — celestial — stir —
Evokes so sweet a torment —
Such sumptuous — Despair —
I would not talk, like Cornets —
I'd rather be the One
Raised softly to the Ceilings —
And out, and easy on —
Through Villages of Ether —
Myself endued Balloon
By but a lip of Metal —
The pier to my Pontoon —
Nor would I be a Poet —
It's finer — Own the Ear —
Enamored — impotent — content —
The License to revere,
A privilege so awful
What would the Dower be,
Had I the Art to stun myself
With Bolts — of Melody!
EMILY DICKINSON |
