| McAdam v Chylos Pty Ltd (FCAFC) - corporations - respondent entitled to set off disputed loans to appellants against dividends declared and payable to appellants - appeal dismissed (I B) |
| Alqudsi v Commonwealth of Australia; Alqudsi v R (NSWCA) - constitutional law - external affairs power - provisions of Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) validly enacted pursuant to s51(xxix) of the Constitution - appeal dismissed (I B C G) |
| New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (NSWCA) - Aboriginal land rights - rejection of claim in respect of two parcels of land on basis of lawful occupation and use by Corrective Services NSW - appeal dismissed (I B C G) |
| Chel v Fairfax Media Publications Pty Ltd (NSWSC) - defamation - defendants not estopped from withdrawing or revoking election for trial by jury - order permitting trial by jury refused - notice of motion dismissed (I) |
| Schuller v S J Webb Nominees Pty Ltd (SASCFC) - negligence - intoxicated appellant dancing on chair at hotel injured when she fell from the chair - no duty of care owed to appellant by hotel - appeal dismissed (I) |
| Regional Development Australia Murraylands and Riverland Inc v Smith (SASCFC) - contract - repudiation of employment contract - failure to mitigate loss - appeal against award of damages allowed (I B C) |
| George 218 Pty Ltd v Bank of Queensland Ltd (WASC) - loans and mortgages - plaintiffs obliged to make payment to bank under guarantees - declaration refused - claim dismissed - judgment for defendant on counterclaim (B) |
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| Summaries With Link (Five Minute Read) |
McAdam v Chylos Pty Ltd [2015] FCAFC 161
Full Court of the Federal Court of Australia
Griffiths, Farrell & Gleeson JJ
Corporations - primary judge found respondent entitled to set off disputed loans to appellants against dividends declared and payable to appellants - appellants contended primary judge erred in finding loans recorded in respondent’s accounts existed irrespective whether primary judge correct to conclude appellants carried onus of proving their non-existence - s 1305 Corporations Act 2001 (Cth) - s140 Evidence Act 1995 (Cth) - s24 Federal Court of Australia Act 1976 (Cth) - Div 7A Income Tax Assessment Act 1936 (Cth) - held: appellants failed to establish any appellable error by primary judge - appeal dismissed.
McAdam (I B)
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Alqudsi v Commonwealth of Australia; Alqudsi v R [2015] NSWCA 351
Court of Appeal of New South Wales
Basten & Leeming JJA; McCallum J
Constitutional law - applicant charged with offences under s7(1)(e) Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) alleging performance of services for another named individual with intention of supporting or promoting that person’s entry into Syria with intent to engage in armed hostilities - applicant changed constitutional validity of provisions - Commonwealth provisions contended provisions validly enacted pursuant to 51(xxix) of the Constitution being “laws for the peace, order, and good government of the Commonwealth with respect to … external affairs”. - whether power to legislate with respect to external affairs sustained s7(1)(e) of the Act - held: primary judge correct to conclude s7(1)(e) in its application to s6(1)(a) read with s6(3)(aa) was law with respect to geographically external affairs because it criminalised conduct intended to support or promote persons entering foreign countries with hostile intent - appeal dismissed. .
Alqudsi (I B C G)
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New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2015] NSWCA 349
Court of Appeal of New South Wales
Beazley P; Macfarlan & Leeming JJA
Aboriginal land rights - appellant lodged claim in respect of two adjacent parcels of Crown land pursuant to s36 Aboriginal Land Rights Act 1983 (NSW) - claimed land subject to three dedications made under predecessors of Crown Lands Act 1989 (NSW) - Minister rejected appellant’s claim on basis land lawfully used and occupied by Corrective Services NSW (CSNSW) - primary judge rejected appeal - held: ground of appeal in relation to evidential burden and erroneous findings of fact failed - primary judge correct in approach to assessing whether there was occupation in fact - primary judge’s failure to address buildings erected on claimed land individually when that submission not raised at trial was not an error of law - s2 New South Wales Constitution Act 1855 (18 & 19 Vict c 54) did entail statutory authorisation required in order for occupation of Crown land to be lawful and did not abrogate Crown prerogative power - appeal dismissed.
New South Wales Aboriginal Land Council (I B C G)
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Chel v Fairfax Media Publications Pty Ltd [2015] NSWSC 1707
Supreme Court of New South Wales
Adamson J
Defamation - plaintiff sought declaration that defendants were estopped from withdrawing or revoking election for trial by jury, or order dispensing with r29.2A(2) Uniform Civil Procedure Rules 2005 (NSW) - plaintiff also sought leave to serve notice of intention to elect for proceedings to be tried by jury; leave to file and order that trial of proceedings be by jury - s21 Defamation Act 2005 (NSW) - s72 Jury Act 1977 (NSW) - s85 Supreme Court Act 1970 (NSW) - held: Court satisfied that defendants’ vested and accrued right to have proceedings tried by jury could be waived.- Court not satisfied it would be unconscionable for defendants to waive accrued vested right which they had due to filing of notice of election - Court did not have power to permit plaintiff to permit election for trial by jury when plaintiff had not followed procedure under the Act and Rules - party who wished to preserve right to a trial by jury in defamation action must protect position by filing notice of intention and notice of election - notice of motion dismissed.
Chel (I)
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Schuller v S J Webb Nominees Pty Ltd [2015] SASCFC 162
Full Court of the Supreme Court of South Australia
Gray, Stanley & Lovell JJ
Negligence - intoxicated appellant injured when she fell from a chair on which she was dancing at hotel - appellant sued proprietors of hotel in negligence and for breach of statutory duty - primary judge held hotel did not owe appellant a duty of care, no relevant causative breach of duty, and appellant’s fall solely her own fault - primary judge held that in any event hotel had good defence on basis of voluntary assumption of risk - primary judge found that if Court wrong in finding respondent not liable, contributory negligence was to be assessed at 90% and damages assessed at $129,380 - appellant appealed - ss3(1), 36, 37 & 58(3); Civil Liability Act 1936 (SA) - ss5F & 5G Civil Liability Act 2002 (NSW) - held: primary judge did not err in finding no duty of care existed - primary judge’s reasons for finding an absence of duty of care were adequate - if duty of care had existed defence of voluntary assumption of risk established - appeal dismissed.
Schuller (I)
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Regional Development Australia Murraylands and Riverland Inc v Smith [2015] SASCFC 160
Full Court of the Supreme Court of South Australia
Gray, Sulan & Nicholson JJ
Contract - employment dispute - primary judge found respondent entitled to damages following repudiation of his fixed term employment contract as employer’s CEO - before contract due to expire employer amalgamated with board to form appellant - position of CEO abolished - respondent had sued appellant for damages on basis that liability for repudiation by employer had transferred to appellant under 22(6) Associations Incorporation Act 1985 (SA) - appellant contended contract had been frustrated or appellant failed to mitigate his loss - held: contract had not been frustrated - primary judge correct to find liability for damages following repudiation -respondent unreasonably failed to accept position which appellant offered and thereby failed to mitigate loss - if respondent had accepted alternate position, loss claimed and awarded by primary judge would have been eliminated - appeal allowed.
Regional (I B C)
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George 218 Pty Ltd v Bank of Queensland Ltd [2015] WASC 434
Supreme Court of Western Australia
Mitchell J
Loans and mortgages - guarantee - company (Success) borrowed money from lender (Statewest) to assist with purchase of land on security of mortgage over land - plaintiffs executed deeds of guarantee and indemnity in favour of Statewest - loan to Success repaid using money Success borrowed from lender Home Building Society Ltd (Home) - guarantees continued to confer rights on Statewest in relation to future lending to Success - Statewest's rights under guarantees transferred to defendant - Home’s rights under existing loan agreements between Home, Success and plaintiffs also transferred to defendant - defendant agreed to lend Success money to pay out existing facilities secured by mortgages over properties (2010 loans) - money lent secured by guarantees - plaintiffs signed Deed of Consent manifesting common understand that guarantees secured 2010 loans - Success defaulted on repayment of 2010 loans - defendant demanded plaintiffs pay shortfall under guarantees - plaintiffs sought declaration defendant not entitled to payment under guarantees - ss22 & 43 Financial Sector (Business Transfer and Group Restructure) Act 1999 (Cth) - Code of Banking Practice - estoppel - held: guarantees required plaintiffs to pay amount owed to defendant without set off - claimed breaches of duty in relation to appointment of receiver and sale of mortgaged properties did not affect obligation to make payment - declaration refused.
George 218 Pty Ltd (B)
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