Daily Construction: Thursday, 22 October 2015
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AR Conolly Company Lawyers.
A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Daily Construction

Executive Summary (One Minute Read)
Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (No 7) (FCA) - contempt - Court had jurisdiction to order early release of person imprisoned for contempt - countervailing circumstances warranting early release - application for early release granted subject to conditions
Moira Shire Council v Sidebottom Group Pty Ltd (VSC) - enforcement order - storage of materials and use of and for recycling materials in contravention of planning scheme - extension of time for compliance with order granted
Nolan v Nolan (QCA) - equity - trusts and trustees - farming enterprise was common endeavour - constructive trust imposed - primary judge erred in apportionment of assets and awarding interest - appeal allowed
Mineral Resources Engineering Services Pty Ltd as T’ee for Meakin Investment Trust v Commonwealth Bank of Australia; Hay v Commonwealth Bank of Australia (No 2) (QCA) - pleadings - unconscionable conduct - pleadings deficient - paragraphs of further amended statement of claim struck out
Summaries With Link (Five Minute Read)
Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (No 7) [2015] FCA 1103
Federal Court of Australia
Logan J
Contempt - fourth respondent presently serving term of imprisonment for contempt of Court - fourth defendant sought early release from prison - whether and in what circumstances Court may order early release of person imprisoned for contempt - not in public interest to disclose particular circumstances of case - part of hearing conducted in camera - s14(1) Contempt of Court Act 1981 (UK) - s16 Crimes Act 1914 (Cth) - ss23, 31, 31(1) Federal Court of Australia Act 1976 (Cth) - s24 Judiciary Act 1903 (Cth) - s53 Sentencing Act 1989 (NSW) - held: :Court had jurisdiction to order early release - there were countervailing considerations, required to remain confidential, which warranted fourth defendant’s early release from prison subject to continued contingency of his being required to serve 18 month balance of original three year imprisonment term
ACCC
Moira Shire Council v Sidebottom Group Pty Ltd [2015] VSC 577
Supreme Court of Victoria
Zammit J
Enforcement order - Council sought order pursuant to r66.05 Supreme Court (General Civil Procedure) Rules 2005 (Vic) for enforcement of order made by Victorian Civil and Administrative Tribunal in relation to storage of materials and use of land for recycling materials in contravention of planning scheme - not disputed there had been substantial non-compliance by respondents - deadlines for compliance had passed - financial limitations of first respondent - constraints of tyre recycling market - truck capacity limitations - fire risk - held: breaches were serious and ongoing and posed serious fire safety issues - it was incumbent on first respondent to explore ways to comply with enforcement order - in circumstances Court provided first respondent with greater period of time to comply with enforcement order than that sought by Council.
Moira Shire Council
Nolan v Nolan [2015] QCA 199
Court of Appeal of Queensland
Gotterson & Morrison JJA; Boddice J
Equity - trusts and trustees - primary Judge found appellants and respondent carried on farming enterprise as common endeavour and that constructive trust could be imposed in respect of its assets - respondent awarded sum representing 25% net sum of assets to be paid by applicants - primary judge further ordered interest on sum and payment of respondent’s costs on indemnity basis - no challenge to findings parties conducted farming enterprise as common endeavour - issue concerned findings as to what constituted appropriate division of property, entitlement to interest and costs - unconscionability - apportionment - held: primary judge erred in findings as to appropriate apportionment - respondent’s contribution to common endeavour is to be reflected by awarding sum equivalent to 17.5% of net assets of enterprise - primary judge failed to have regard to competing factors in relation to interest - respondent declined award of interest on sum before entry of judgment - question of costs required to needed to be addressed afresh - appeal allowed - cross-appeal dismissed.
Nolan
Mineral Resources Engineering Services Pty Ltd as T’ee for Meakin Investment Trust v Commonwealth Bank of Australia; Hay v Commonwealth Bank of Australia (No 2) [2015] QSC 288
Supreme Court of Queensland
P McMurdo J
Pleadings - Court previously struck out part of statement of claim in proceedings and allowed other parts to stand - present judgment dealt with more recent versions of statements of claim - defendant sought to strike out some part of pleadings relating to complaints defendant engaged in unconscionable conduct in equity and contravention ss12CA or 12CB Australian Securities and Investments Commission Act 2001 (Cth) or ss51AA, 51AB, or 51AC Trade Practices Act 1974 (Cth) - held: pleadings were deficient - paragraphs of further amended statement of claim struck out.
Mineral Resources