| Fistar v Riverwood Legion and Community Club Ltd (NSWCA) - equity - fraud - club and appellant were both victims of fraudster - club could not recover amount from appellant - appeal allowed
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| Palermo Seafoods Pty Ltd v Lunapas Pty Ltd (NSWCA) - pleadings - leases and tenancies - failure to address case pleaded by appellant - substantial miscarriage of justice - new trial - appeal allowed
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| Probuild Constructions (Aust) Pty Ltd v DDI Group Pty Ltd (NSWSC) - security of payments - no denial of procedural fairness by adjudicator in relation to determination whether plaintiff entitled to claimed set-off - application dismissed
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| Application of Harnett and Cutts (NSWSC) - Wills and estates - executors of deceased's estate granted Benjamin order
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| Hendrex v Keating (TASSC) - negligence - contract - plaintiff injured in fall from ladder while working on defendants' house - defendants liable
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| Clarkson Williams Partners Pty Ltd v Vaughan (No 2) (ACTCA) - costs - successful appellant succeeded on only one of five grounds of appeal - failed grounds significantly added to costs of appeal - no order as to costs of appeal
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| Benchmark Television |
Dear Subscriber
1. This Benchmark Television broadcast is with Glenn Fredericks on adverse action claims by employees, in discussion with Ian Benson.
2. Adverse action claims involve an employee claiming to have been treated adversely by the employer because of the existence or exercise of a workplace right.
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.
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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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| Glenn Fredericks on Adverse Action |
| Barrister Glenn Fredericks discusses adverse action claims – where an employee claims to have been treated adversely because of the exercise of a workplace right. He discusses the issues that commonly arise in such claims and what evidence is usually required as to the reason for the employer’s action. |
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| Summaries With Link (Five Minute Read) |
Fistar v Riverwood Legion and Community Club Ltd [2016] NSWCA 81
Court of Appeal of New South Wales
Bathurst CJ, Leeming JA & Sackville AJA
Equity - fraud - appellant gave cheque to fraudster who was sole director of company and held herself out as financial adviser who could invest money - most funds provided by appellant dissipated - CEO of respondent club transferred amount from club's bank account to fraudster's company account - fraudster procured bank cheque made out to vendor of property and provided it to appellant's solicitors - solicitors delivered cheque to vendor's representatives - club sued fraudster, fraudster's company, CEO of club and appellant - appeal was against judgment obtained by club against appellant - appellant claimed personal action for money had and received could not be maintained and also challenged findings whether she was recipient of funds and volunteer - whether respondent club could recover against appellant where both were fraudster's victims - whether personal action for money had an received would “outflank” knowing receipt claim under Barnes v Addy - held: club's claim turned on whether appellant was a volunteer - appellant did not receive bank cheque as volunteer - appellant by solicitors had received bank cheque as repayment by fraudster's company of existing enforceable debt - appeal allowed.
Fistar |
Palermo Seafoods Pty Ltd v Lunapas Pty Ltd [2016] NSWCA 82
Court of Appeal of New South Wales
Simpson JA; Sackville & Emmett AJJA
Pleadings - leases and tenancies - self-represented litigant - appellant claimed declarations and orders arising out of lease of first respondent's premises - appellant claimed first respondent wrongfully prevented its access to premises - in first judgment primary judge answered certain questions and identified questions not properly addressed, calling for further submissions - in second judgment primary judge found appellant entitled to judgment against second respondent - second judgment was subject of appeal - grounds of appeal related to claim concerning alleged use of and refusal to return its goods - held: primary judge failed to address case which appellant pleaded and presented resulting in substantial wrong or miscarriage of justice - new trial necessary in interests of justice - appeal allowed.
Palermo |
Probuild Constructions (Aust) Pty Ltd v DDI Group Pty Ltd [2016] NSWSC 462
Supreme Court of New South Wales
Meagher JA
Security of payments - procedural fairness - plaintiff head contractor sought to quash adjudication determination made under Building and Construction Industry Security of Payment Act 1999 (NSW) concerning first defendant's payment claim - plaintiff contended it was denied procedural fairness - plaintiff contended adjudicator rejected set-off claim on bases not contended for - held: no denial of procedural fairness by adjudicator as to whether plaintiff entitled to claimed set-off - application dismissed.
Probuild |
Application of Harnett and Cutts [2016] NSWSC 427
Supreme Court of New South Wales
Pembroke J
Wills and estates - Benjamin order - application for Benjamin order by executors of deceased's estate arising from their inability to locate estate's “last known beneficiary” - executors sought to be excused from further attempts to locate beneficiary - held: Court satisfied all reasonable searches had been made- it would be expensive and time consuming to burden of further searches on executors - estate's size was modest and search for beneficiary had begun in 1998 - Benjamin order granted.
Harnett and Cutts |
Hendrex v Keating [2016] TASSC 20
Supreme Court of Tasmania
Blow CJ
Negligence - contract - damages - defendants were married and living together in house - defendant husband arranged for removal and replacement of roof cladding and for friends to help - plaintiff was one of the friends - defendant arranged to pay plaintiff for his work - defendant set up ladder for workers to use to travel to and from roof via roof of carport - plaintiff injured when he fell from ladder - plaintiff sued for negligence, breach of contract and breach of statutory duties under Workplace Health and Safety Act 1995 (Tas) and Workplace Health and Safety Regulations 1998 (Tas) - ss11 & 12(a) Civil Liability Act 2002 (Tas) - held: claim for breach of statutory duties failed - defendants breached duty to take reasonable care to protect plaintiff from harm - damages reduced by 60% for contributory negligence - judgment for plaintiff in sum of $1,126,904.
Hendrex |
Clarkson Williams Partners Pty Ltd v Vaughan (No 2) [2016] ACTCA 8
Court of Appeal of the Australian Capital Territory
Penfold, Burns & Rangiah JJ
Costs - misleading and deceptive conduct - damages - appellant succeeded on appeal and sought that respondent pay its costs - appellant succeeded on only one of five grounds of appeal - respondent sought that there be no order for costs on basis appellant failed on most grounds and that the costs of appeal were increased by the failed grounds - rr1705 & 1721 Court Procedures Rules 2006 (ACT) - held: failed grounds had added to costs of appeal significantly enough to displace rule that costs follow event - no order for costs of appeal.
Clarkson |
