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


Thursday, 18 December 2014

Executive Summary (One Minute Read)
Shaw v Yarranova Pty Ltd (FCAFC) - bankruptcy - sequestration order - appeal dismissed
Zafiriou v Saint-Gobain Administration Pty Ltd (VSCA) - termination of employment contract - entitlement to redundancy payment - fresh evidence - retrial
Hitchcock v Goldspan Investments Pty Ltd [No 2] (WASC) - costs - freezing orders - exercise of discretion where no contested hearing
Summaries With Link (Five Minute Read)
Shaw v Yarranova Pty Ltd [2014] FCAFC 171
Full Court of the Federal Court of Australia
Bennett, Flick & Yates JJ
Bankruptcy - respondent as nominee for company (MAB) sold apartment to appellant - respondent assigned benefit of contract to another company - appellant failed to pay balance of purchase price - appellant’s claim for specific performance of contract dismissed - judgment entered in favour of respondent and MAB (‘judgment creditors’) - appellant contended judgment creditors suffered no loss or damage - appellant contended judgment creditors falsely represented they were part of group of companies owned by MAB and that they committed a “fraud” by falsely representing they had been held out of funds and unable to invest money - judgment creditors served bankruptcy notice on appellant - appellant appealed against sequestration order - ss43, 52 & 153B Bankruptcy Act 1966 (Cth) - absence of evidence of fraud - refusal to go behind judgment - refusal of disqualification application - held: grounds of appeal not made out - application to adduce further evidence dismissed - appeal dismissed.
Zafiriou v Saint-Gobain Administration Pty Ltd [2014] VSCA 331
Court of Appeal of Victoria
Osborn & Whelan JJA; Ginnane AJA
Evidence - contract - appellant formerly employed by respondent - appellant’s employment terminated - appellant claimed entitlement to amount under provision of written contract of employment which provided for a severance payment if his employment was terminated for reasons of redundancy/retrenchment - trial judge concluded employment not terminated for reasons of ‘redundancy/retrenchment’ and that primary claim should be dismissed - critical issue on appeal was whether fresh evidence had rendered trial judge’s conclusions unsafe - held: not realistically possible for Court to form concluded judgment on ultimate probative significance of fresh evidence - fresh evidence raised sufficient basis to require further trial - appeal allowed in part - certain claims dismissed - matter otherwise remitted for further hearing by different judge of trial division.
Hitchcock v Goldspan Investments Pty Ltd [No 2] [2014] WASC 465
Supreme Court of Western Australia
Allanson J
Costs - freezing orders - plaintiff was shareholder of company - plaintiff sued director of company and other defendants - plaintiff sought damages or equitable compensation - plaintiff sought freezing orders restraining director from dealing with assets generally, and wife in relation to dealing with piece of land - Court made freezing orders - consent orders made - exercise of discretion as to costs where no contested hearing - O52A, r8 Rules of the Supreme Court 1971 (WA) - held: no enforceable agreement as to costs - orders made reflected a compromise rather than total capitulation by either party - conduct of plaintiff was unreasonable, leading to costs being unnecessarily incurred by director and wife - plaintiff to pay costs of application.