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

Weekly Law Review

Tuesday, 24 February 2015

Executive Summary (One Minute Read)
Lavin v Toppi (HCA) - guarantee - sureties entitled to recover contribution from co-sureties despite creditor’s covenant not to sue co-sureties - appeal dismissed (I B)
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)
Ashton v Pratt (NSWCA) - contract - no binding legal relations between escort and late Richard Pratt - appeal dismissed (I B)
Attorney General of NSW v Homeland Community Ltd (NSWCA) - trusts - company did not hold property on charitable trust (B)
White v Johnston (NSWCA) - assault and battery - dentist’s treatment was not assault on patient - matter remitted confined to alternative negligence claim (I)
Re RB, a protected estate family settlement (NSWSC) - approval of family settlement including statutory Will relating to protected person (B)
Dimarti v Dimarti (NSWSC) – contract of compromise – no unconscionable conduct or unjust contract – application to set aside contract of compromise dismissed (B)
Traivelog Pty Ltd v Electrometals Technologies Ltd (Subject to a Deed of Company Arrangement) (QSC) - corporations - voluntary administration - deed of company arrangement not set aside (B)
West Coast Council v Coverdale (No 2) (TASFC) - real property - Valuer-General obliged to value lands subject of marine farming leases - appeal allowed (I G)
Stewart v Ackland (ACTCA) - negligence - student injured performing backward somersault on jumping pillow on farm – occupiers of farm who conducted amusement park business liable - appeal dismissed (I)
Summaries With Link (Five Minute Read)
Lavin v Toppi [2015] HCA 4
High Court of Australia
French CJ; Kiefel, Bell, Gageler & Keane JJ
Guarantee - contribution in equity - bank consolidated loans into loan to company - parties were guarantors of loan - bank made demands on guarantors - demand not met - bank sued guarantors - appellants and bank entered deed of release and settlement  - bank covenanted not to sue appellants if first appellant paid minor portion of debt - first appellant paid portion - respondents paid remaining debt - respondents claimed contribution from appellants in respect of payment in excess of their proportionate share of debt - coordinate liabilities - held: Court of Appeal of New South Wales correct to hold bank’s covenant not to sue did not extinguish appellants’ liability under guarantee - respondents’ entitlement in equity to contribution from time parties were called upon to satisfy guarantee could not be defeated by bank giving appellants covenant - appeal dismissed.
Lavin (I B)
[From Benchmark 17 February 2015]
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)
[From Benchmark 24 February 2015]
Ashton v Pratt [2015] NSWCA 12
Court of Appeal of New South Wales
Bathurst CJ; McColl & Meagher JJA
Contract - appellant provided deceased with escort services  - in 2003 appellant and deceased had conversations in which he stated he would pay appellant certain allowances, give her a car and set up trust for each of her children - primary judge found conversations not intended to create legal relations, that contract if made it was void against public policy, that executor not estopped from denying conversations were legally binding, and that any binding obligations had been released - appellant’s children joined proceedings seeking to enforce term in conversations to create trust - held: parties did not intend to create legal relations and - estoppel claim against executor failed - correspondence constituted an accord and satisfaction - 2005 document effective to release deceased from appellant’s claims - appeal dismissed.
Ashton (I B)
[From Benchmark 18 February 2015]
Attorney General of NSW v Homeland Community Ltd [2015] NSWCA 15
Court of Appeal of New South Wales
Macfarlan & Meagher JJA; Sackville AJA
Trusts - Attorney General of NSW sought declaration that respondent company held property upon a charitable trust for purposes identified in deed - primary judge dismissed proceedings - Attorney General appealed - held: primary judge did not err in permitting company to withdraw concession that it did not contest validity of charitable trust and to amend defence so as to withdraw admission it was bound by a trust - finding that company bound by trust required finding that it took transfer to it with notice that trustees intended it to hold property on trust - primary judge did not err in declining to make that finding - appellant’s application to adduce further evidence refused - no significant prospect a different outcome would have ensued - appeal dismissed.
Attorney General of NSW (B)
[From Benchmark 19 February 2015]
White v Johnston [2015] NSWCA 18
Court of Appeal of New South Wales
Barrett, Emmett & Leeming JJA
Assault and battery - respondent patient alleged appellant dentist’s treatment constituted assault and was negligently performed - primary judge found dentist had committed assault and battery on patient - dentist contended evidence did not establish absence of therapeutic purpose in treatments she performed, that primary judge erred in relying on evidence admitted to demonstrate tendency to charge for services not performed, and in waiving notice requirement - appellant also contended exemplary damages were excessive - held: evidence did not establish absence of therapeutic purpose - awarding of damages in error - decision to admit evidence relating to malpractice overturned - matter remitted to District Court confined to alternative claim in negligence.
White (I)
[From Benchmark 20 February 2015]
Re RB, a protected estate family settlement [2015] NSWSC 70
Supreme Court of New South Wales
Lindsay J
Wills - succession - protected estate - application for approval of family settlement concerning estate of defendant - defendant was a protected person under s38 NSW Trustee and Guardianship Act 2009 (NSW) - statutory Will - family provision releases - lost capacity case - exercise of protective jurisdiction - management and administration of property - held: orders made for approval of family settlement including statutory Will relating to protected person.
Re RB, a protected estate family settlement (B)
[From Benchmark 20 February 2015]
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)
[From Benchmark 24 February 2015]
Traivelog Pty Ltd v Electrometals Technologies Ltd (Subject to a Deed of Company Arrangement) [2015] QSC 27
Supreme Court of Queensland
P McMurdo J
Corporations - voluntary administration - creditors sought to set aside deed of company arrangement executed by first respondent company - reg 5.3A.07 Corporations Regulations 2001 (Cth) - ss445D, 447A & 513B Corporations Act 2001 (Cth) - delay - held: no ground to set aside DOCA established under s445D(1)(a) & (b) - Court not persuaded DOCA unfairly prejudicial or unfairly discriminatory - application heard more than five months after execution of DOCA, during which time the company continued to trade with consequence those who became creditors, contractors or investors in that period would be likely to be prejudiced from orders sought - application dismissed.
Traivelog Pty Ltd (B)
[From Benchmark 23 February 2015]
West Coast Council v Coverdale (No 2) [2015] TASFC 1
Full Court of the Supreme Court of Tasmania
Tennent, Escort & Pearce JJ
Real property - Council sought declaration that Valuer-General obliged to keep and maintain valuation rolls and to provide valuation lists to Council including particulars of ownership and values of lands subject of marine farm leases - leases were granted in respect of areas in Macquarie Harbour pursuant to Marine Farming Planning Act 1995 (Tas) - Council claimed primary judge erred in failing to determine grant of each of the marine farming leases created an interest in land which was rateable pursuant to section 87(1) Local Government Act 1993 (Tas) - statutory construction - held (by majority): seabed and waters of Macquarie Harbour were Crown land for the purposes of Crown Lands Act 1976 (Tas) - they were Crown lands that are liable to be rated because they were not exempt - Valuer-General under duty to value lands the subject of the leases - appeal allowed.
West Coast Council (I G)
[From Benchmark 23 February 2015]
Stewart v Ackland [2015] ACTCA 1
Court of Appeal of New South Wales
Penfold J; Walmsley & Robinson AJJ
Negligence - appellants were owner/occupiers of farm on which they conducted business involving amusement park - respondent university student injured when performing aerial backward somersault on jumping pillow owned by owner/occupiers - trial judge found owner/occupiers liable for respondent’s injuries - held: trial judge correctly decided activity in which respondent was engaged when injured was a dangerous recreational activity - no error in finding that risk was not obvious - open to trial judge to find breach of duty by appellants and that causation established - appeal dismissed.
Stewart (I)
[From Benchmark 17 February 2015]
Executive Summary
Ke Qin Ren v Hong Jiang; Yi Cheng Jiang v Wan Ze Property Development (dfg) Pty (121) Ltd (FCA) (NSWCA) – costs – Calderbank offer – offer to consent to dismiss abuse of process motion – indemnity costs granted
Summaries With Link
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