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

Weekly Civil Law Review

Wednesday, 24 September 2014
Executive Summary (One Minute Read)
Ramsay v BigTinCan Pty Ltd (NSWCA) - equity - directors' duties - dishonest and fraudulent design - knowing assistance - equitable compensation (I B)
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (NSWCA) - contract for sale of mining rights - royalties payable to vendor - need for unbroken chain of title between purchaser and ultimate miner of ore (B C)
Melisavon Pty Ltd v Springfield Land Development Corporation Pty Ltd (QCA) - negligence - time that economic loss was suffered due to cracks in building was not so clear as to justify summary judgment on basis claim was statue barred (I C)
McNab Developments (Qld) Pty Ltd v MAK Construction Services Pty Ltd (QCA) - security of payments - no jurisdictional error by adjudicator - appeal dismissed (C G)
Queensland v Munro (QCA) - negligence - nurse injured during aggressive behaviour management course - employer liable - appeal dismissed (I)
ANZ Banking Group Ltd v Austin (QSC) - Bank unsuccessful in attempting personal service of statement of claim - substituted service ordered (B)
In the Estate of Costello (deceased) (SASC) - Wills - testator intended to appoint solicitor as executor - Will rectified - probate granted (B)
Summaries With Link (Five Minute Read)
Ramsay v BigTinCan Pty Ltd [2014] NSWCA 324
Court of Appeal of New South Wales
McColl, Macfarlan & Gleeson JJA
Equity - directors' duties - first appellant appointed director of company (BTC) to assist it to obtain funding by developing and marketing app - BTC engaged second appellant to assist in developing new version of app - another director obtained access to emails between appellants - BTC claimed that appellants formulated and implemented plan to acquire BTC's assets at discounted value, to develop and undertake BTC's business through new entity, and to divert funding and business opportunities from BTC to new entity - primary judge found first appellant breached duties as director of BTC, that second appellant knowingly assisted him in dishonest and fraudulent breaches, and that first appellant's conduct caused BTC to lose opportunity to raise capital - appellants ordered to pay equitable compensation - held: claim against second appellant was adequately pleaded - admission of further evidence refused - no error on causation - primary judge erred in treating BTC's loss of opportunity to obtain funding as, of itself, a substantial financial loss - however, figure of $300,000 was a fair assessment of loss in absence of precise evidence - appeal dismissed.
Ramsay (I B)
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2014] NSWCA 323
Court of Appeal of New South Wales
Macfarlan, Meagher & Barrett JJA
Contract - MBM contracted with Hanwright to acquire the entire mining rights to identified reserves in a particular area - agreement provided for payment of royalties to Hanwright on ore from that area - Hanwright claimed royalties were payable by MBM in respect of mining of ore in certain areas - primary judge upheld Hanwright's claim - construction of contract - held: ore had not been mined in the relevant area by entities deriving title to the land through or under MBM - phrase required that there be a continuous or unbroken chain of title in respect of the relevant land between MBM and the present owner of mining rights - there was no such no unbroken chain of title.
Mount Bruce Mining Pty Ltd (B C)
Melisavon Pty Ltd v Springfield Land Development Corporation Pty Ltd [2014] QCA 233
Court of Appeal of Queensland
M McMurdo P, Holmes JA & A Lyons J
Limitation of actions - negligence - latent defect - respondent claimed engineering consultants breached duty of care - failed to specify design for lower slab of building which could tolerate ground heave - s10 Limitation of Actions Act 1974 (Qld) - claim statute barred if cause of action arose before 2005 - cracks first appeared in 2003 - primary judge refused consultants' application for summary judgment - primary judge held determination of start of limitation period was not simply a matter of identifying when cracking first appeared - further questions for investigation - conflicting evidence - held: consultants required to establish limitation defence was so clear that respondent had no real prospect of succeeding - consultants had not demonstrated unequivocally that the respondent had suffered economic loss from the alleged faulty design when it became aware the cracking in 2003 - primary judge correctly dismissed application for summary judgment - appeal dismissed.
Melisavon Pty Ltd (I C)
McNab Developments (Qld) Pty Ltd v MAK Construction Services Pty Ltd [2014] QCA 232
Court of Appeal of Queensland
Gotterson & Morrison JJA; Jackson J
Security of payments - McNab subcontracted with MAK for performance of concreting and formwork services - McNab sought declaration that adjudication under Building and Construction Industry Payments Act 2004 (Qld) in respect of MAK's payment claim was void - primary judge held that the adjudicator appeared to have made errors in construction of the subcontract in misinterpreting McNab's submissions or by reversing onus of proof - however, errors were not jurisdictional errors enabling McNab to obtain declaratory relief sought - held: McNab did not establish failure to accord natural justice which invalidated the adjudication - adjudicator's reasons for deciding to reject liquidated damages claim were not unreasonable in Wednesbury sense - adjudicator did not misapply Act by incorrectly reasoning that it permitted certification of progress payments on basis of entitlement at common law - appeal dismissed.
McNab Developments (Qld) Pty Ltd (C G)
Queensland v Munro [2014] QCA 231
Court of Appeal of Queensland
M McMurdo P, Muir JA & P Lyons J
Negligence - respondent nurse was on third day of aggressive behaviour management course - nurse injured when attempting a manoeuvre under instruction - nurse sued Queensland for negligence and breach of statutory duty - primary judge found risk could have been minimised by teaching the different parts of the manoeuvre separately before combining them - primary judge gave judgment for nurse in District Court proceedings - Queensland sought leave to appeal - Queensland contended techniques were split up and taught in different parts separately before they were combined - held: primary judge's findings of fact not glaringly improbable or contrary to compelling inferences - no error in finding of breach of duty of care by failure to provide proper training and instruction - interests of finality and justice rendered ground of appeal on causation unmeritorious - causation was not an issue at trial - no reliance on inadmissible evidence - applicant did not identify any substantial injustice which ought to be corrected - no reasonable argument there was error to be corrected - leave to appeal refused - leave to appeal against costs order refused.
Queensland (I)
ANZ Banking Group Ltd v Austin [2014] QSC 222
Supreme Court of Queensland
Jackson J
Bank filed a statement of claim against defendants for payment of debts and possession of land - Bank made several attempts to personally serve the statement of claim on the defendants at their last known and apparent residential address - a family member of the defendants was home at the time of attempted service - however, access to premises was barred by a high fence and an aggressive dog - Bank attempted to call the defendants' last known telephone numbers - defendants did not respond to Bank's attempts to arrange a meeting - held: personal service should be dispensed with and substituted service should be ordered - ordered that Bank could serve statement of claim by post to three of the defendants' known properties and personal delivery to their last known and apparent residential address.
ANZ Banking Group Ltd (B)
In the Estate of Costello (deceased) [2014] SASC 134
Supreme Court of South Australia
Gray J
Wills - testator's solicitor sought rectification of Will - clause of Will sought to appoint “my solicitor … or any solicitor in her employ to act as my executor and trustee...” - solicitor's application for probate had been refused by Registrar on basis clause was void for uncertainty - s8 Administration and Probate Act 1919 (SA) - held: clause was void for uncertainty as it did not indicate an order of preference between the solicitor and any solicitor in her employ - the testator's intention was to appoint the solicitor as her executor - it was appropriate to rectify the will to provide for the appointment of the solicitor as executor - grant of probate issued to the solicitor.
In the Estate of Costello (deceased) (B)