Banking Thursday, 19 March 2015 View in browser

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


Executive Summary (One Minute Read)
McIntyre v Fish (VSC) - judicial review - adequate reasons for opinion of medical panel - judicial review refused 
Commissioner of Taxation v McGrouther (FCAFC) - taxation - taxpayers could withdraw notices given to Commissioner - Commissioner’s appeal allowed 
Sung v Malaxos (NSWSC) - succession - family provision order in favour of de facto wife of deceased refused 
Wong v Maroubra Automotive Refinishers Pty Ltd; Ayres v Maroubra Automotive Refinishers Pty Ltd (No 2) (NSWSC) - detinue - repairer not entitled to withhold possession of cars until payment of towing and storage fees - damages 
122 Pitt Street Pty Ltd ACN 104 825 961 v Universal 1919 Pty Ltd (NSWSC) - landlord and tenant - independent valuer complied with lease - parties bound by valuation 
Idameneo (No 123) Pty Ltd v Suszko (SASC) - pleadings - dismissal of application to amend defence and plead set-off and counterclaim - fresh evidence not admitted - recall of order refused 
Summaries With Link (Five Minute Read)
McIntyre v Fish [2015] VSC 82
Supreme Court of Victoria
Zammit J
Judicial review - plaintiff sought review of opinion of medical panel concerning injury suffered during course of her employment - medical panel found plaintiff suffering from condition not relevant to claimed injury and that plaintiff had no ability to return to preinjury employment - plaintiff sought to quash opinion on basis of inadequate reasons - ss65 & 68 Accident Compensation Act 1985 (Vic) - held: reasons adequately demonstrated Panel’s path of reasoning - Panel not required to embark on explanation of which medical opinions it agreed or disagreed with - judicial review refused.
Commissioner of Taxation v McGrouther [2015] FCAFC 34
Full Court of the Federal Court of Australia
Allsop CJ; Pagone & Davies JJ
Taxation - respondents gave Commissioner notices requiring him to make objection decision - notices given two days after Commissioner served first respondent with notice under s264 Income Tax Assessment Act 1936 (Cth) requiring him to attend examination - respondents “withdrew” their notices before end of 60 day period referred to in s14ZYA(3) as condition of Commissioner agreeing to adjourn examination of first respondent - despite withdrawal, respondents commenced appeal under Pt IVC against the disallowance of objections after expiry of 60 day period - Commissioner sought to strike out or dismiss appeal on basis there was no objection decision - respondents contended that once election made by taxpayer to give notice it could not be withdrawn by taxpayer and objections were deemed to have been disallowed - primary judge found in favour of respondents - statutory construction - quilibet potest renunciare juri pro se introducto - whether rights given to taxpayer under s14ZYA capable of waiver held: primary judge erred in finding notice could not be withdrawn - leave to appeal granted - appeal allowed.
Sung v Malaxos [2015] NSWSC 186
Supreme Court of New South Wales
Pembroke J
Succession - family provision - claim by plaintiff de facto wife of testator - deceased left Will dividing estate between daughter and plaintiff - adequate and proper provision - freedom of testamentary disposition - held: manner in which testator divided estate was carefully considered and appropriate - totality of evidence supported testator’s wisdom and justice of testator’s apportionment - to grant litany of plaintiff’s requirements would flout reasonable, fair and rational scheme of testamentary disposition and seriously disadvantage testator’s daughter and husband - plaintiff’s claim not justified by statutory criteria in Ch 3 Succession Act 2006 (NSW) - claim dismissed.
Wong v Maroubra Automotive Refinishers Pty Ltd; Ayres v Maroubra Automotive Refinishers Pty Ltd (No 2) [2015] NSWSC 222
Supreme Court of New South Wales
McCallum J
Detinue - two separate proceedings concerning a repairer’s entitlement to withhold possession of cars until payment by owner or NRMA of towing and storage fees -  each plaintiff was owner of a car insured by NRMA  - each car damaged in accident - in each case tow truck driver nominated the premises of particular repairer as a destination to which car could be towed -  owners consented to course and did not request repairer to make repairs - plaintiffs contended repairer wrongly refused to deliver up possession of the cars upon demand and was  liable in detinue - repairer sought payment of disputed towing and storage fees from each plaintiff or NRMA - s53 Fair Trading Act 1987 (NSW) - s62 Tow Truck Industry Act 1998 (NSW) - held: no contract of bailment for reward or work and labour came into existence - defendant’s reliance on Motor Vehicle Insurance and Repair Industry Code of Conduct misconceived - defence to claim in detinue failed - cross-claim dismissed - amounts paid into Court released to plaintiff.
122 Pitt Street Pty Ltd ACN 104 825 961 v Universal 1919 Pty Ltd [2015] NSWSC 234
Supreme Court of New South Wales
Kunc J
Landlord and tenant - plaintiff lessor leased part of building to defendant lessee - lease was term of 10 years with option for further 10 years - lessee exercised option - lease provided for market  review of base rent upon exercise of option to renew - lessor proposed new base rent  - lessee engaged rent dispute mechanism under lease resulting in appointment of independent valuer - valuer determined market rent approximately $500,000 less than figure proposed by lessor - if valuer complied with lease by disregarding value of fitout parties accepted they were bound by determination - held: valuer complied with lease - valuation binding on parties - summons and cross-summons dismissed
Idameneo (No 123) Pty Ltd v Suszko [2015] SASC 39
Supreme Court of South Australia
Stanley J
Pleadings - defendant sought recall of order dismissing application to amend defence and to plead set-off and counterclaim in reliance on “fresh” evidence - Court’s power to recall order previously made -  test for reception of fresh evidence - held: Court did not consider evidence would probably have had important influence on outcome of application - fresh evidence not admitted - application to recall order refused.