| Lucisano v Westpac
Banking Corporation (FCA) - injunction - possession - bank not restrained from taking
possession of property (B) |
| The Nominal Defendant
v Aychahawchar (NSWCA) - motor accidents compensation - appeal against assessment of
damages allowed (I) |
| QBE Insurance
(Australia) Ltd v Jovanovic (NSWSC) - motor accidents compensation -
decisions of proper officer and claims assessor set aside (I G) |
| Citigroup Pty Ltd v
Middling (No. 4) (NSWSC) - contract - mortgage - agency - contracts between borrower and lender
not unjust (I B) |
| Gann v Hosny (VSCA) - damages -
assault - appeal on sole basis judgment procured by fraud - issue of fraud remitted to County Court (I) |
| City of Subiaco v
Homebase Management Pty Ltd (WASCA) - lease - construction of ‘Fair Market
Rent’ - appeal allowed (B C) |
| Parker v BHP Billiton
Iron Ore Pty Ltd (WASC) - application to set aside
subpoena refused - application for further and better particulars granted -
corporation joined as defendant to counterclaim (I B C) |
| Summaries With Link (Five Minute Read) |
Lucisano
v Westpac Banking Corporation
[2015] FCA 243
Federal Court of Australia
Gordon J
Injunction - possession - applicant
sought to restrain bank from taking steps to take possession of applicant’s
property - serious question to be tried - balance of convenience - held: facts
and matters set out in affidavits and draft fast track statement did not raise
any question of contravention of National
Consumer Credit Protection Act 2009 (Cth) which would enliven power in s177
and provide foundation for interim
relief - in any event Court not persuaded balance of convenience lay in favour
of Court making interim order of kind sought - application refused.
Lucisano (B)
|
The
Nominal Defendant v Aychahawchar
[2015] NSWCA 58
Court of Appeal of New South Wales
Basten & Gleeson JJA; Adamson J
Damages - motor accidents compensation -
appellant challenged assessment of damages on basis awards of non-economic loss
and past economic loss were excessive - appellant contended primary judge failed
adequately to take into account respondent’s lack of attempts to find work and utilize
alternate work skills - appellant also contended primary judge failed to find respondent
had failed to mitigate loss - ss39(2) & 39(1A) Motor
Accidents Act 1988 (NSW) - ss126, 131, 134 &136 Motor Accidents Compensation Act 1999 (NSW) - statutory
interpretation - held: no basis to
disturb assessment of damages for non-economic loss - primary judge failed to
identify rational basis for expectation of total incapacity - primary judge
made inadequate allowance for failure to mitigate and limited effect of psychiatric
evidence - damages for past and future economic loss recalculated - appeal
allowed.
Nominal (I)
|
QBE
Insurance (Australia) Ltd v Jovanovic
[2015] NSWSC 241
Supreme Court of New South Wales
Garling J
Motor accidents compensation - QBE
sought declarations and orders with respect to conduct of Motor Accidents
Authority of NSW and various officers -
first defendant alleges injuries as result of motor vehicle accident and made
claim pursuant to Motor Accidents
Compensation Act 1999 (NSW) - QBE submitted decision of proper officer to
refer impairment dispute for further assessment affected by legal and
jurisdictional error, and that decision of claims assessor to refer treatment
dispute to similarly flawed - shortly
before hearing Court informed that defendants consented to orders in nature of
those claimed - whether Court had jurisdiction to make orders sought -
requirements of administrative decision-maker - held: QBE’s arguments correct -
decision to refer impairment dispute for further medical assessment wholly
irrational - claims assessor’s decision also set aside as it depended on decision
of proper officer.
QBE (I G)
|
Citigroup
Pty Ltd v Middling (No. 4)
[2015] NSWSC 221
Supreme Court of New South Wales
Adamson J
Contract - loan agreement - agency -
plaintiff claimed possession of property of which defendant borrower was
registered proprietor - borrower filed cross-claim to which earlier lender (Perpetual)
and plaintiff were cross-defendants - defendant granted leave to amend defence
and cross-claim to include claims for relief under Contracts Review Act 1980 (NSW) - proceedings between plaintiff and
borrower resolved by deed of release - remaining
matter for determination was cross-claim against Perpetual - held: Court not
satisfied contracts between borrower and Perpetual were unjust - mortgage
originator which prepared and submitted loan application to Perpetual’s
mortgage manager (Challenger) not acting as agent for Perpetual or Challenger -
dishonest conduct of mortgage originator could not be imputed to Perpetual - judgment
for Perpetual.
Citigroup (I B)
|
Gann
v Hosny
[2015] VSCA 43
Court of Appeal of Victoria
Whelan & Ferguson JJA
Fraud - damages - assault - applicant granted
extension of time to appeal from judgment on sole ground judgment procured by
fraud - issue whether judgemnet procured by fraud to be contested - appellant sought order that appeal be allowed
to extent of remitter - respondent contended appeal should be dismissed and appellant
should be required to issue new proceeding - held: inappropriate for Court of
Appeal to determine issues involving oral evidence and cross-examination - appeal
allowed to extent that issue whether judgment procured by fraud of respondent
referred to County Court for hearing and
determination - appeal otherwise dismissed without an adjudication on the
merits.
Gann (I)
|
City
of Subiaco v Homebase Management Pty Ltd
[2015] WASCA 54
Court of Appeal of Western Australia
Martin CJ; Newnes & Murphy JJA
Contract - lease - rent review clause - appellant landowner granted lease to
respondent lessee - lease provided for review of rental payable - rent payable
be the highest of number of alternatives one of which was amount equal to ’Fair
Market Rent’ - parties each engaged valuers to provide advice with respect to amount
equal to Fair Market Rent - dispute arose as to proper construction and effect
of the relevant provisions - primary judge made declarations with respect to
principles applicable to determination of Fair Market Rent - appellant appealed
- proper construction of ‘Fair Market Rent’ - whether it must be taken into account
that notional lessee must construct premises on land to enable it to be put to use
to which lessee put Leased Premises - length of term of notional lease to be entered
into at Review Date - commercial purpose - held: assessment of Fair Market Rent
carried out on erroneous basis - primary judge’s decision set aside - appeal allowed.
City (B C)
|
Parker
v BHP Billiton Iron Ore Pty Ltd
[2015] WASC 95
Supreme Court of Western Australia
Edelman J
Discovery - pleadings - joinder - three
applications - application to set aside subpoena to produce or restrict
inspection of documents produced - application for further and better
particulars of amended defence and counterclaim - application to join corporation
as defendant to counterclaim - held: subpoena issued for legitimate forensic
purpose and was not oppressive - application to set aside dismissed -
defendants to replead paragraphs to provide required particulars - joinder of corporation
would not have any substantial detrimental effect upon management and progress
of proceeding - corporation joined.
Parker (I B C)
|
