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

Insurance, Banking, Construction & Government

Tuesday, 24 February 2015

Executive Summary (One Minute Read)
Rio Tinto Services Ltd v Commissioner of Taxation (FCA) - goods and services tax - acquisitions not for creditable purpose - input tax credit claims dismissed (B C G)
Tran v Pu (FCA) - bankruptcy - review of sequestration order - deed of settlement failure to carry out de novo hearing - appeal allowed - matter remitted (B G)
Ke Qin Ren v Hong Jiang; Yi Cheng Jiang v Wan Ze Property Development (Aust) Pty Ltd (in liq) (NSWCA) – costs – Calderbank offer – offer to consent to dismiss abuse of process motion – indemnity costs granted (I C)
Mordue v QBE Insurance (Australia) Ltd (NSWSC) – motor accident compensation – QBE bound by admission of liability despite withdrawal – Assessor’s exemption of claim quashed (I G)
Dimarti v Dimarti (NSWSC) – contract of compromise – no unconscionable conduct or unjust contract – application to set aside contract of compromise dismissed (B)
Gibb v Gibb (VSC) – testator’s family maintenance – solicitors’ duties – misconceived application for removal of estate’s trustees dismissed – adjournment to determine whether costs order to be made against solicitors (I B)
Dean v Collins (WASCA) – succession –dismissal of family provision application – security for costs of appeal refused (I B)
Summaries With Link (Five Minute Read)
Rio Tinto Services Ltd v Commissioner of Taxation [2015] FCA 94
Federal Court of Australia
Davies J
Taxation - goods and services tax - applicant was representative member for Rio Tinto Ltd GST group - applicant claimed it was entitled to input tax credits for acquisitions made by group members in providing and maintaining residential accommodation by way of lease for workforce - Commissioner denied input tax credit claims on basis they fell within terms of s11-15(2)(a) A New Tax System (Goods and Services Tax) Act 1999 (Cth) because they related to making supplies that would be input taxed - held: acquisitions fell within terms of s11-15(2)(a) - acquisitions not made for a creditable purpose - application dismissed.
Rio Tinto Services Ltd (B C G)
Tran v Pu [2015] FCA 97
Federal Court of Australia
Beach J
Bankruptcy - appellant’s estate sequestrated pursuant to Registrar’s order - sequestration order made on creditor’s petition filed by respondent - application for review of sequestration order dismissed by Federal Circuit Court judge - primary judge held deed of settlement was a bar to application for review - held: no private contractual bar could foreclose proper application of s52 Bankruptcy Act 1966 (Cth) - primary judge did not engage in task of a rehearing de novo or engage in task required under s52 - appeal allowed - matter remitted.
Tran (B G)
Ke Qin Ren v Hong Jiang; Yi Cheng Jiang v Wan Ze Property Development (Aust) Pty Ltd (in liq) [2015] NSWCA 22
Court of Appeal of New South Wales
Barrett, Gleeson & Leeming JJA
Costs - Court allowed appeals in separate proceedings brought by parties - Court also dismissed respondents’ notice of motion contending that application for leave to appeal proceedings was abuse of process - Court set aside orders against applicant and first respondents and remitted proceedings – respondents ordered to pay active parties’ costs of appellate proceedings with costs of proceedings at first instance to be determined on remitter – parties sought variations of costs orders - applicants sought indemnity costs based on Calderbank letter – respondents sought more favourable order on basis appeals succeeded on point not run at first instance – held: unreasonable of respondent not to accept offer to discontinue abuse of process motion with no order for costs – applicants entitled to indemnity costs - essential point that summary judgment should be entered was advanced at first instance – much of time and expense incurred on appeal attributable to new points respondents raised unsuccessfully – respondents did not raise any new matter not already addressed – orders varied.
Ke Qin Ren (I C)
Mordue v QBE Insurance (Australia) Ltd [2015] NSWSC 98
Supreme Court of New South Wales
Adams J
Motor accidents compensation – plaintiff claimed against QBE under Motor Accidents Compensation Act 1999 (NSW) (MACA) for injuries suffered in motor car rally accident – plaintiff was passenger in vehicle driven by son - unregistered vehicle permit under Road Transport (Vehicle Registration) Act 1997 (NSW) issued in respect of vehicle attached a third party insurance policy issued by QBE – QBE first admitted liability then denied indemnity to driver - plaintiff sought to quash Claims Assessor’s conclusion claim must be exempted from determination on basis QBE had denied indemnity – s81 MACA – held: QBE bound by its notice admitting liability – no room for exercise of discretion to exempt claim - granting relief sought could not be regarded as potentially futile –decision quashed.
Mordue (I G)
Dimarti v Dimarti [2015] NSWSC 97
Supreme Court of New South Wales
Lindsay J
Contract of compromise – defendant sought orders that consent orders and underlying agreement for compromise be set aside because they were procured by plaintiff’s unconscionable conduct within meaning of ss20, 21 and 22 of the Australian Consumer Law – defendant also contended contract for compromise was an unjust contract within meaning of s7 Contracts Review Act 1980 (NSW) – defendant contended his medical condition operated against full participation in processes leading to entry of consent orders - held: no unconscionable conduct – no unjust contract - defendant gave fully informed consent to contract of compromise he entered and orders made by Court – motion dismissed.
Dimarti (B)
Gibb v Gibb [2015] VSC 35
Supreme Court of Victoria
McDonald J
Testator’s family maintenance – solicitors’ duties - children of deceased by mother as litigation guardian sought orders under Part IV Administration and Probate Act 1958 (Vic) by reference to deceased’s appointment of his parents to administer his estate – mother concerned deceased’s parents would not make proper provision for maintenance of children - held: no legal or factual basis upon which order could be made pursuant to s48 Trustee Act 1958 (Vic) for removal of deceased’s parents as trustees of estate - relief sought in originating motion misconceived - prima facie grounds on which Court might be satisfied plaintiffs’ solicitors contravened overarching obligation under ss18 & 24 Civil Procedure Act 2005 (Vic) – proceedings adjourned to determine whether costs order should be made against solicitors in interests of justice.
Gibb (I B)
Dean v Collins [2015] WASCA 28
Court of Appeal of Western Australia
Murphy JA
Security for costs – succession – appellant sought family provision order under Family Provision Act 1972 (WASCA) in respect of late mother’s Will – Master dismissed appellant’s application – appellant appealed – respondents sought security for costs – held: Court not persuaded security for costs should be ordered – appellant’s case arguable - Court not persuaded appellant would be unable to meet adverse costs order – not unreasonable for appellant not to have paid costs of primary proceedings where there had been no taxation of costs below – not appropriate to have waited until after parties filed respective cases before making assessment whether security should be sought – application dismissed.
Dean (I B)