Weekly Law Review: Friday, 22 May 2015 View in browser

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

Weekly Law Review

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CIVIL (Insurance, Banking, Construction & Government)
Executive Summary (One Minute Read)
Selig v Wealthsure Pty Ltd (HCA) - corporations - proportionate liability regime in Div 2A Corporations Act 2001 (Cth) limited to claims of misleading or deceptive conduct based on contravention of s1041H - appeal allowed - costs ordered against non-party professional indemnity insurer (I B)
Central Queensland Development Corporation Pty Ltd v Sunstruct Pty Ltd (FCAFC) - corporations - deed of company arrangement - costs - two related appeals - judgment against company varied - director’s appeal allowed (B C)
Hudson v Arap 1 (NSW) Pty Ltd (NSWCA) - contract - Tribunal did not have jurisdiction to order termination of tenancy or possession of premises - orders quashed (B G)
Lachlan v HP Mercantile Pty Ltd (NSWCA) - deed of release and assignment - assignee entitled to amounts owing under loan agreements - appeal dismissed (I B)
Verryt v Schoupp (NSWCA) - negligence - motor accidents compensation - “skitching” accident - contributory negligence established - damages reduced - appeal allowed in part (I)
Casey v Pel-Air Aviation Pty Ltd; Helm v Pel-Air Aviation Pty Ltd (NSWSC) - negligence - damages - doctor and nurse injured in plane crash - nurse’s PTSD was “bodily injury” compensable under Civil Aviation (Carriers Liability) Act 1959 (Cth) (I)
Sanna v Wyse and Young International Pty Ltd (No.1) (NSWSC) - legal practitioners - motion to restrain barrister from appearing in matter refused (I)
Central Cleaning Supplies (Aust) Pty Ltd v Elkerton (VSCA) - contract - securities - supplier of cleaning equipment entitled to enforce retention of title clause - appeal allowed (B)
Vic Hotel Pty Ltd v DC Payments Australasia Pty Ltd (VSCA) - legal professional privilege - waiver - application of wrong test - appeal allowed (I)
Stellard Pty Ltd v North Queensland Fuel Pty Ltd (QSC) - contract for sale of roadhouse constituted by email exchange - judgment for purchasers (B)
Johnson v Hallam (WASC) - contract - no concluded agreement for purchase of property by tenant from owner - summary judgment for owner (B)
Summaries With Link (Five Minute Read)
Selig v Wealthsure Pty Ltd [2015] HCA 18
High Court of Australia
French CJ; Kiefel, Bell, Gageler & Keane JJ
Corporations - appellants invested in “Ponzi scheme” on second respondent’s advice - second respondent was  representative of first respondent - appellants lost initial investment and suffered loss -  appellants claimed first and second respondents contravened various provisions of Corporations Act 2001 and Australian Securities and Investments Commission Act 2001 - first and second respondents submitted that Div 2 Corporations Act and corresponding provisions of ASIC Act limited their liability to proportion of appellants’ loss and damage - whether Div 2A limited in its application to claims based on contraventions of s 1041H - held: ‘apportionable claim’ for purposes of Div 2A was a claim based on contravention of s1041H Corporations Act - proportionate liability regime did not apply to other statutory or common law causes of action - reasoning applied equally to analogue provisions of ASIC Act - costs awarded against first respondent’s professional indemnity insurer - insurer had conduct of defence at trial and decided to appeal to Court below -  decision to appeal meant money which it would have been obliged to pay appellants was diverted to meet insurer’s legal costs - insurer had acted for itself in seeking to better position by bringing appeal - no reason it should be regarded as immune from costs order - appeal allowed.
Selig (I B)
[From Benchmark Thursday, 14 May 2015]
Central Queensland Development Corporation Pty Ltd v Sunstruct Pty Ltd [2015] FCAFC 63
Full Court of the Federal Court of Australia
Besanko, Gilmour & Ranghia JJ
Corporations - deed of company arrangement - costs - two related appeals - first appeal brought by appellant company concerning effect of Deed of Company Arrangement (DOCA) between it and its creditors on amount of judgment entered on counterclaim, and its effect on proper construction on costs orders made against it in relation to counterclaim - second appeal by company’s  sole director who was non-party - director was ordered with company to pay costs of proceedings - director  complained he was denied procedural fairness - held: DOCA was a bar to bringing any claim for unsecured amount - judgment for only secured amount ought to have been entered - first respondent’s costs of prosecuting counterclaim against company were not compromised by the DOCA having regard to s444D Corporations Act 2001 nor first respondent’s costs defending company’s claims - discretion of primary judge miscarried in relation to costs order against director - there was denial of procedural fairness - judgment against company varied - company’s appeal in relation to costs orders dismissed - director’s appeal allowed.
Central (B C)
[From Benchmark Monday, 18 May 2015]
Hudson v Arap 1 Pty Ltd [2015] NSWCA 126
Court of Appeal of New South Wales
Bathurst CJ; Emmett JA & Bergin CJ in Eq
Contract - parties entered contract whereby appellant agreed to sell premises to respondent - at same time as entering contract, parties entered call option agreement whereby respondent granted appellant option to repurchase - on completion of purchase respondent as landlord and appellant as tenant entered residential tenancy agreement - NSW Civil and Administrative Tribunal (NCAT) ordered tenancy terminated and ordered appellant to give possession of premises to respondent - appellant sought to quash NCAT’s orders - whether NCAT had jurisdiction to make order for termination of tenancy under Tenancy Agreement -  whether Tenancy Agreement arose under term of mortgage - ss8(1)(f), 8(1)(g) & 84 Residential Tenancies Act 2010 - held: property transferred as security for amount paid to pursuant to contract and additional amount to which respondent was entitled under Option Agreement and the Tenancy Agreement - Tenancy Agreement arose under terms of mortgage - Tribunal did not have jurisdiction to make orders - orders quashed.
Hudson (B G)
[From Benchmark Monday, 18 May 2015]
Lachlan v HP Mercantile Pty Ltd [2015] NSWCA 130
Court of Appeal of New South Wales
Bathurst CJ, Beazley P & McColl JA
Contract - appellant entered four loan agreements with company - respondent was assignee of company’s rights - respondent sought to recover amounts outstanding on loans - parties entered Deed of Release and Assignment which provided appellant pay respondent amount in instalments and that respondent entitled to enter judgment for “judgment debt’ under deed if unrectified default - consent orders made - appellant defaulted on final instalment and failed to rectify - appellant sought extension of time to pay final instalment - appellant submitted finding in Paino v Hoffbauer 13 NSWLR 193 in error and should not be followed, and that clause of deed which provided for payment of “judgement debt” unenforceable as it amounted to penalty - held: Paino v Hoffbauer did not impermissibly fetter Court’s general discretion, and  trial judge did not err in having regard to it -  primary judge did not exercise discretion in manner manifestly unreasonable or plainly unjust in refusal of extension of time - clause of deed not a penalty as appellant implicitly acknowledged in deed that “judgment debt” debt was present debt - appeal dismissed.
Lachlan (I B)
[From Benchmark Tuesday, 19 May 2015]
Verryt v Schoupp [2015] NSWCA 128
Court of Appeal of New South Wales
Meagher & Gleeson JJA; Sackville AJA
Negligence - damages - respondent was child who sustained serious head injuries in ‘skitching’ (riding skateboard while towed by vehicle) - accident was a “motor accident” under Motor Accidents Compensation Act 1999 - respondent claimed damages for negligence - appellant driver frankly conceded blame - primary judge rejected contributory negligence defence - judgment entered for respondent in amount of $2,204,150.47 - held: it was just and equitable that  respondent bear small proportion of responsibility for damage resulting from accident - sufficient allowance for respondent’s lack of care for own safety was reflected in a reduction of his damages by 10% - reductions made to certain heads of damages - appeal allowed in part.
Verryt (I)
[From Benchmark Tuesday, 19 May 2015]
Casey v Pel-Air Aviation Pty Ltd; Helm v Pel-Air Aviation Pty Ltd [2015] NSWSC 566
Supreme Court of New South Wales
Schmidt J
Negligence - damages - nurse and doctor employed by company - company sent nurse and doctor from Sydney to help transport seriously ill patient and husband from Samoa to Melbourne - plane operated by Pel-Air Aviation Pty Ltd (Pel-Air) - plane crashed during leg of flight - doctor and nurse seriously injured - doctor and nurse sought to recover damages from Pel-Air - Pel-Air accepted crash caused by negligence of  pilot and co-pilot for which it had vicarious liability - not in issue that doctor and nurse injured - nurse suffered psychiatric injury - Pel-Air did not concede nurse’s PTSD compensable under Civil Aviation (Carriers Liability) Act 1959 (Cth) - held: s9E provided rights to compensation for “bodily injury” under Art 17 Montreal Convention - nurse’s PTSD compensable because it was a “bodily injury” - nurse also entitled to recover economic and non-economic losses under Civil Liability Act 2002 - doctor entitled to payment for future economic losses up to retirement age of 70 and for future care needs from ages 40 to 75 - judgment for doctor and nurse.
Casey (I)
[From Benchmark Tuesday, 19 May 2015]
Sanna v Wyse and Young International Pty Ltd [2015] NSWSC 580
Supreme Court of New South Wales
Darke J
Legal practitioners - defendants and their sole director sought to restrain barrister from appearing in proceedings as counsel for plaintiff - barrister had previously acted for director and had been on friendly terms with him - held: Court not persuaded barrister possessed any confidential information that was or may be relevant to the issues - Court not persuaded it was appropriate case to exercise inherent jurisdiction to restrain legal practitioner from acting - Court did not think a fair-minded reasonably informed member of public would conclude proper administration of justice required barrister should not appear - no reason to think that barrister would be unable to discharge obligations with independence and objectivity - motion refused.
Sanna (I)
[From Benchmark Wednesday, 20 May 2015]
Central Cleaning Supplies (Aust) Pty Ltd v Elkerton [2015] VSCA 92
Court of Appeal of Victoria
Maxwell P, Tate & Beach JJA
Contract - securities - appellant supplied cleaning equipment - company (Swan) was customer - appellant supplied cleaning equipment to Swan - appellant invoiced Swan for each supply of equipment - invoice contained retention of title (ROT) clause - Swan went into liquidation - respondent was liquidator - there were unpaid invoices for equipment supplied - appellant sought to enforce  ROT clause - liquidator resisted claim - appellant did not register security interest in respect of any of the equipment supplied - claim to recover equipment could only succeed if its interest was covered by transitional provisions of  Personal Property Securities Act 2009 - whether appellant’s security interest in equipment supplied after 30 January 2012 was ‘provided for’ by arrangement entered into between appellant and Swan in September 2009 for  supply of equipment 30 day credit - held: primary judge erred in holding credit arrangement did not ‘provide for’ granting of the security interests in the future - terms on which appellant agreed  to provide credit to Swan included provision for ROT clause as standard term of each future supply of equipment - appeal allowed.
Central (B)
[From Benchmark Thursday, 14 May 2015]
Vic Hotel Pty Ltd v DC Payments Australasia Pty Ltd [2015] VSCA 101
Court of Appeal of Victoria
Mandie & Beach JJA; Dixon AJA
Legal professional privilege - inducing breach of contract - trial judge determined preliminary point in respondent’s favour concerning waiver of legal professional privilege - applicants sought leave to appeal from orders maintaining legal professional privilege in communications - O47 Supreme Court (General Civil Procedure) Rules 2005 - held: there were real prospects of success on proposed appeal - Court accepted applicants’ submission that judge applied wrong test - Court satisfied that respondent, by its pleading, acted inconsistently with objection to fourth applicant adducing evidence that would result in disclosure of confidential communication for dominant purpose of provision of legal advice - respondent had waived privilege - leave to appeal granted - appeal allowed.
VicHotel (I)
[From Benchmark Friday, 15 May 2015]
Stellard Pty Ltd v North Queensland Fuel Pty Ltd [2015] QSC 119
Supreme Court of Queensland
Martin J
Contract - defendant was owner of roadhouse - defendant appointed agent to sell freehold and business - expressions of interest sought -  negotiations took place by email with parties’ representatives - plaintiffs claimed contract for sale of roadhouse to them was constituted by email exchange between them and owner - defendant claimed there was no intention to be legally bound by exchange and that in any event there was no sufficient written memorandum or note to satisfy s59 Property Law Act 1974 Property Law Act - Electronic Transactions (Queensland) Act 2001 - held: there was contract with defendant for sale of roadhouse - defendant’s contention that there was no sufficient writing to satisfy s59 Property Law Act failed - judgment for plaintiffs.
Stellard (B)
[From Benchmark Tuesday, 19 May 2015]
Johnson v Hallam [2015] WASC 149
Supreme Court of Western Australia
Master Gething
Summary judgment - contract - owners of property leased property  to tenants - tenants in default of lease - tenant claimed he and owner agreed to forgive tenants’  obligations to pay arrears of rent provided tenant submitted to owner an offer in writing to purchase property - tenant claimed he submitted offer but owner refused to complete transaction in breach of agreement - tenant claimed damages for loss of opportunity to exploit intellectual property rights - owner claimed there was no agreement, and counterclaimed for arrears and possession - owner sought summary judgment - held: parties did not enter concluded agreement for sale of property - summary judgment ordered in favour of owner against tenant’s claim
Johnson (B)
[From Benchmark Thursday, 14 May 2015]
Executive Summary
Pate (a pseudonym) v The Queen (VSCA) - criminal law - sexual penetration of child under 16 - appeal against sentence - forensic disadvantage direction deficient - appeal allowed - retrial
Summaries With Link
Pate (a pseudonym) v The Queen [2015] VSCA 110
Court of Appeal of Victoria
Weinberg & Priest JJA; Dixon AJA
Criminal law - appellant convicted of two charges of sexually penetrating child under 16 - appellant sentenced to 4 years’ imprisonment with non-parole period of 2 years and 6 months - appellant appealed against sentence - appellant contended there had been substantial miscarriage of justice because of admission of certain hearsay  evidence, that trial judge erred in failing to exclude certain evidence, and that trial judge failed to adequately direct jury as to significant forensic disadvantages suffered by accused - held : forensic disadvantage direction was deficient  - appeal allowed - retrial.
Among the Rocks
By Robert Browning

Oh, good gigantic smile o’ the brown old earth,
      This autumn morning! How he sets his bones
To bask i’ the sun, and thrusts out knees and feet
For the ripple to run over in its mirth;
      Listening the while, where on the heap of stones
The white breast of the sea-lark twitters sweet.

That is the doctrine, simple, ancient, true;
      Such is life’s trial, as old earth smiles and knows.
If you loved only what were worth your love,
Love were clear gain, and wholly well for you:
      Make the low nature better by your throes!
Give earth yourself, go up for gain above!

Robert Browning