| Financial Synergy Holdings Pty Ltd v Commissioner of Taxation (FCAFC) - taxation - capital gains tax - “time of acquisition of units” for purposes of s110-25(2) Income Tax Assessment Act 1997 (Cth) - taxpayer's construction favoured - appeal allowed (I B)
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| Australian Competition and Consumer Commission v P T Garuda Indonesia Ltd (FCAFC) - trade practices - statutory interpretation - collusion - price-fixing - markets for airborne cargo out of Hong Kong, Singapore and Indonesia were markets “in Australia” - appeal allowed (I B C)
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| Valuer-General of New South Wales v Oriental Bar Pty Ltd (NSWCA) - valuation of land - exercise of discretion miscarried - failure to discharge statutory functions according to law - Valuer-General's appeal against valuation of land allowed - cross-appeals dismissed (I B C)
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| Rice v Ghabrial (NSWSC) - interrogatories - medical negligence - interrogatories were necessary and there were special reasons to administer them - leave granted to administer interrogatories (I)
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| Kevin as the Public Officer of the Wat Buddhalavarn Incorporated Prakoonheang v Thonsoun Phantha-oudomm, Abbot of the Wat Buddhalavarn Monastery (NSWSC) - pleadings - associations - equity - declarations as to invalidity of meetings - leave to amend statement of claim except in relation to claim for false and misleading representations (I B)
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| Hycenko v Hrycenko (VSC) - summary judgment - private undertaking - partial release from solicitor's private undertaking not to release money refused - summary judgment refused (I B)
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| De Bruyn v Victorian Institute of Forensic Mental Health (VSC) - human rights - smoke-free policy - defendant empowered to approve and adopt policy - no failure to consider plaintiff's human rights (I)
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Dear Subscriber
1. This Benchmark Television broadcast is with Robert Angyal SC and Tony Fleiter, solicitor on proof of title of thoroughbred horses.
2. This is an entertaining examination of proof of title of thoroughbred horses by two of the country’s leading lawyers on the subject.
3. For Benchmark CLE subscribers we have prepared notes which we will forward to them at their request.
4. Also for Benchmark CLE subscribers at their request we will forward them an advice notice evidencing when they accessed this production.
5. If you are not a CLE subscriber you can subscribe here: https://benchmarkinc.com.au/cle
6. We also have a series of questions for Benchmark CLE subscribers which we will send to them at their request.
7. We will be in the next few days publishing some productions which are exclusively for Benchmark CLE subscribers.
8. You should watch on Wi-Fi to avoid excess data usage charges.
Warm regards
Alan Conolly for Benchmark
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| Robert Angyal SC and Tony Fleiter, solicitor on proof of title of thoroughbred horses |
| This is an entertaining examination of proof of title of thoroughbred horses by two of the country’s leading lawyers on the subject. |
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| Summaries With Link (Five Minute Read) |
Financial Synergy Holdings Pty Ltd v Commissioner of Taxation [2016] FCAFC 31
Full Court of the Federal Court of Australia
Middleton, Logan & Davies JJ
Taxation - capital gains tax - appellant taxpayer was head company of consolidated group - unit trust became subsidiary member of group after sole unitholder disposed of its units to taxpayer in return for shares - issue concerned calculation of units' cost base to determine group's “allocable cost amount” for the unit trust under s705-60 Income Tax Assessment Act 1997 (Cth) - specific question was time of acquisition of units for the purposes of s110-25(2) - primary judge held “time of acquisition” of units for working out first element of units' cost base was deemed by s122-70(3) to be “before” 20 September 1985 - whether primary judge identified wrong asset in applying s110-25(2)(b) or erred in construing s122-70(3) - held: taxpayer's construction favoured - Court reached different conclusion as to “time of acquisition” of units - Court found time of acquisition of units was 29 June 2007 - appeal allowed.
Financial Synergy Holdings Pty Ltd (I B) |
Australian Competition and Consumer Commission v P T Garuda Indonesia Ltd [2016] FCAFC 42
Full Court of the Federal Court of Australia
Dowsett, Yates & Edelman JJ
Trade practices - statutory interpretation - Commission claimed Air New Zealand Ltd (Air NZ) and Garuda engaged in collusive behaviour by fixing surcharges and fees on carriage of air cargo into Australia contrary to s45 Trade Practices Act 1974 (Cth) - primary Judge found markets for airborne cargo out of Hong Kong, Singapore and Indonesia were not markets “in Australia” within s4E - primary judge concluded market was located at point airline choice took effect, which was was the point at which cargo was delivered to airline - consideration of s4E read with ss45 & 45A - held: all aspects of market were relevant in determination whether market was in Australia - determination was evaluative exercise - Air NZ and Garuda supplied air cargo services inluding important components which were provided in Australia - services marketed and supplied to customers in Australia - there were Australian barriers to entry into market - market was “in Australia” - appeal allowed.
ACCC (I B C) |
Valuer-General of New South Wales v Oriental Bar Pty Ltd [2016] NSWCA 48
Court of Appeal of New South Wales
Basten & Simpson JJA; Sackville AJA
Valuation of land - Valuer-General's challenged primary judge's finding as to land value of property - Valuer-General sought that declarations should be set aside and confirmation of Valuer-General's determination of land value - by cross-appeal Objectors contended primary judge failed to determine land value in conformity with ss6A & 14G Valuation of Land Act 1916 (NSW) and sought variation of determinations - ss38-325, 75 & 135-5 A New Tax System (Goods and Services Tax) Act 1999 (Cth) - ss19(b) & 57 Land and Environment Court Act 1979 (NSW) - ss4(1), 6A, 14A, 14B, 14G & 37(1) Valuation of Land Act - held: primary judge's exercise of discretion miscarried - exercise of discretion based on misapprehension of facts producing unreasonable and plainly unjust result - primary judge did not discharge statutory functions lawfully constituting error of law - Valuer-General's appeal allowed - cross-appeal dismissed.
Valuer-General of New South Wales (I B C) |
Rice v Ghabrial [2016] NSWSC 313
Supreme Court of New South Wales
Rothman J
Interrogatories - medical negligence - plaintiff sought leave to administer interrogatories - plaintiff claimed she understood first defendant was to perform knee replacement operation but that first defendant did not perform operation or supervise operation performed by second or third defendant - plaintiff not aware of what occurred in operating theatre - plaintiff claimed knee had not improved or improved as it should have if operation appropriately performed - “necessary” - “special reasons” - held: interrogatories were necessary and there was special reason for administering them - plaintiff granted leave pursuant to r22.1 Uniform Civil Procedural Rules 2005 (NSW) to administer interrogatories.
Rice (I) |
Kevin as the Public Officer of the Wat Buddhalavarn Incorporated Prakoonheang v Thonsoun Phantha-oudomm, Abbot of the Wat Buddhalavarn Monastery [2016] NSWSC 305
Supreme Court of New South Wales
Slattery J
Pleadings - associations - equity - plaintiff sought to amend summons to plead new issues - parties made concessions about invalidity of meetings - whether any final relief could now be given - whether leave should be granted to amend summons - whether mental anxiety amendments embarrassing - whether declarations lacked utility - Associations Incorporation Act 1984 (NSW) - Associations Incorporation Act 2009 (NSW) - s56 Civil Procedure Act 2005 (NSW) - s1322(2) Corporations Act 2001 (Cth) - held: declarations made that resolutions meetings were invalid and of no legal force and effect - leave to amend statement of claim granted except for pleaded claim for false and misleading representations.
Kevin (I B) |
Hycenko v Hrycenko [2016] VSC 112
Supreme Court of Victoria
Ierodiaconou AsJ
Summary judgment - private undertaking - dispute concerning payment of sale proceedings from property - defendant sought release of some net sale proceeds held by solicitor who had given private undertaking given to plaintiff not to release them - defendant sought that solicitor be partially released from undertaking to authorise payment of money, or plaintiff's claim for payment of more than half of proceeds be struck out and that defendant be given summary judgment - held: no applicable principle to support Court's power to grant partial relief from private undertaking - order requiring solicitor to release money would amount to mandatory injunction, which was not sought, and Associate Justice did not have power to make such order - summary judgment refused as Court not satisfied plaintiff's claim had no prospects of success.
Hycenko (I B) |
De Bruyn v Victorian Institute of Forensic Mental Health [2016] VSC 111
Supreme Court of Victoria
Riordan J
Human rights - smoke-free policy - statutory interpretation - involuntary patient at hospital sought by litigation guardian declaratory and injunctive relief in relation to smoke-free policy - Mental Health Act 2014 (Vic) (Mental Health Act) - Tobacco Act 1987 (Vic) (Tobacco Act) - Charter of Human Rights and Responsibilities Act 2006 (Vic) - held: defendant empowered to approve and adopt Smoke Free Policy by Mental Health Act - Policy is not inconsistent with Tobacco Act - defendant did not fail to give proper consideration to plaintiff's human right under s20 of the Charter or fail to give proper consideration to human right under ss22(1) & 22(3) - Policy did not engage ss22(1) & 22(3) in any event - plaintiff granted leave to further amend originating motion to allege failure of proper consideration to human right not to be subjected to medical treatment without consent under 10(c) of the Charter - defendant did not fail to give proper consideration to human right under s10(c).
De Bruyn (I) |
