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

Weekly Civil Law Review

Friday, 24 October 2014
Executive Summary (One Minute Read)
Gray v Richards (HCA) - damages - motor vehicle collision - fund management damages to include amount to offset trustee's cost of managing them - appeal allowed in part (I B)
Health Administration Corporation v George D Angus Pty Ltd (NSWCA) - compulsory acquisition of land - financial costs - company entitled to compensation for financial losses - appeal dismissed (I B C)
William Hare UAE LLC v Aircraft Support Industries Pty Ltd (NSWSC) - international commercial arbitration - breach of natural justice - partial enforcement of foreign award (I B C)
Bateman v Fairfax Media Publications Pty Ltd (No 2) (NSWSC) - pleadings - defamation - defences - Hore-Lacy pleading struck out (I)
In the matter of David Ireland Productions Pty Ltd (NSWSC) - corporations - company wound up on just and equitable ground (B)
Sino Iron Pty Ltd v Palmer (QSC) - stay - contract - alleged breaches of trust - stay refused (I B C)
Kronenberg v Bridge (TASFC) - building contract - misleading conduct by builder - loss of chance to pursue more advantageous contract - damages (I B C)
Gwelo Developments Pty Ltd v Brierty Ltd (NTSC) - security of payments - applications in respect of payment disputes subject of earlier application invalid (C)
Summaries With Link (Five Minute Read)
Gray v Richards [2014] HCA 40
High Court of Australia
French CJ, Hayne, Bell, Gageler & Keane JJ
Damages - negligence - appellant suffered brain injury in collision with motor vehicle driven by respondent - appellant sued driver in negligence - proceedings compromised on terms that driver pay appellant $10 million (compromise money) plus damages to cover expenses associated with managing compromise money (fund management damages) - appellant declared incapable of managing own affairs - private trustee appointed to manage estate - trustee charged management fees on funds under management comprising both compromise money and fund management damages - Supreme Court of New South Wales determined fund management damages should include amount to offset cost of managing the fund management damages and further amount to offset cost of managing fund's predicted future income - Court of Appeal reversed decision - held: Court of Appeal erred in deciding no allowance should be made for cost of managing fund management damages but was correct in deciding no allowance should be made for cost of managing fund's predicted future income - appeal allowed in part.
Gray (I B)
[From Benchmark 17 October 2014]
Health Administration Corporation v George D Angus Pty Ltd [2014] NSWCA 352
Court of Appeal of New South Wales
Emmett & Leeming JJA; Tobias AJA
Compulsory acquisition of land - appellant compulsorily acquired land occupied by respondent service company pursuant to statutory tenancy determinable at will - service company claimed compensation for loss attributable to disturbance for foregone income and/or profits as result of relocation necessitated by acquisition - primary judge found loss was a financial cost reasonably incurred as a natural and direct consequence of acquisition of service company’s interest and compensable pursuant to s59(f) Land Acquisition (Just Terms Compensation) Act 1991 (NSW) - appellant contended financial costs in s59(f) meant only expenditure and did not include financial losses - appellant claimed any loss or potential loss of income could only be assessed as special value of land under s57 and that because interest acquired by appellant was statutory tenancy determinable at will by one month's notice, service company was only entitled to compensation for one month's income- held: financial costs included financial losses and was not limited to expenditure - terms of interest compulsorily acquired relevant to assessment of market value of interest at time of acquisition but not to assessment of loss attributable to post-acquisition disturbance - appeal dismissed.
Health Administration Corporation (I B C)
[From Benchmark 21 October 2014]
William Hare UAE LLC v Aircraft Support Industries Pty Ltd [2014] NSWSC 1403
Supreme Court of New South Wales
Darke J
International commercial arbitration - plaintiff was company incorporated under laws of Abu Dhabi in United Arab Emirates - defendant was Australian company - plaintiff sought order under s8(2) International Arbitration Act 1974 (Cth) for enforcement of arbitral award made in the United Arab Emirates - dispute arising from payment of retention monies under agreement for construction works - agreement governed by laws of UAE - clause of agreement provided for arbitration of disputes to be governed by rules of Abu Dhabi Chamber of Commerce and Industry and take place in Abu Dhabi - decision of such arbitration stated to be final and binding upon the parties - held: there had been breach of rules of natural justice in respect of one aspect of arbitration - parts of award affected by breach severed - balance of award enforced in accordance with s8(7) International Arbitration Act 1974 (Cth) - judgment for plaintiff.
William Hare UAE LLC (I B C)
[From Benchmark 17 October 2014]
Bateman v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 1380
Supreme Court of New South Wales
McCallum J
Pleadings - defamation - defences - action for defamation and injurious falsehood arising from publication of articles in newspaper - plaintiff objected to defendants’ reliance on Hore-Lacy meanings - s9 Defamation Act 1974 (NSW) - ss24, 25 & 26 Defamation Act 2005 (NSW) - whether decision in David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24 recognised a discrete species of common law defence of justification or whether it was properly confined to matters of pleading and practice in State of Victoria - held: decision in Hore-Lacy had no work to do in New South Wales having regard to law and practice - appropriate course was to strike out parts of pleading objected to as having tendency to cause prejudice, embarrassment or delay in the proceedings - Hore-Lacy pleading struck out.
Bateman (I)
[From Benchmark 21 October 2014]
In the matter of David Ireland Productions Pty Ltd [2014] NSWSC 1411
Supreme Court of New South Wales
Black J
Corporations - winding up - plaintiffs sought that company be wound up under ss459A, 459P, 461(1)(k), 462 & 472 Corporations Act 2001 (Cth) on just and equitable ground due to breakdown in relationship between its directors - held: company no longer undertaking activities for which it was incorporated - evidence was that company had effectively ceased to trade - relationship between directors had broken down and they could no longer work together - continuance of parties' association would be futile - just and equitable that company be wound up.
In the matter of David Ireland Productions Pty Ltd (B)
[From Benchmark 23 October 2014]
Sino Iron Pty Ltd v Palmer [2014] QSC 259
Supreme Court of Queensland
Jackson J
Stay - contract - trusts and trustees - parties entered contractual arrangement where plaintiffs paid money into fund to be used for specified purposes - plaintiffs alleged defendants were involved in breaches of trust - defendants sought stay of proceedings as abuse of process on primary basis it could not be shown funds were impressed with a trust - held: proceeding not without reasonable grounds - no collateral and improper purpose - no fictitious cause of action involved - proceedings did not bring administration of justice into disrepute - application dismissed.
Sino Iron Pty Ltd (I B C)
[From Benchmark 22 October 2014]
Kronenberg v Bridge [2014] TASFC 10
Full Court of the Supreme Court of Tasmania
Blow CJ; Porter & Pearce JJ
Building contract - appellants signed contract with respondent builder for building home - appellants contended contract contained fixed price and that they were overcharged, or that hand-written additions to contract allowed price to be varied within reasonable parameters with result they were still overcharged, or that there was no effective contract, or mutual and/or unilateral mistake, or that if court found there was a cost plus contract, they were misled by builder - s14 Fair Trading Act 1990 (NSW) - primary judge held there was no binding contract between parties because they failed to reach agreement as to what was to be paid to builder - builder was entitled to an amount, as fair and reasonable price for work done, which was greater than amount paid by plaintiffs - court was not satisfied appellants established what if any loss they suffered as consequence of entering into arrangement with builder - claims dismissed - builder successful on counterclaim - held: Court satisfied builder engaged in misleading conduct with result appellants lost chance of entering into a more advantageous contract for construction of a house on their land - damages assessed for contravention of Fair Trading Act - builder's proportionate liability defence on basis of architect's responsibility failed - appeal allowed.
Kronenberg (I B C)
[From Benchmark 23 October 2014]
Gwelo Developments Pty Ltd v Brierty Ltd [2014] NTSC 44
Supreme Court of the Northern Territory
Kelly J
Security of payments - parties entered construction contract for performance of subcontract works in connection with development of shopping centre - payment disputes arose - defendant served adjudication application on plaintiff under s27 Construction Contracts (Security of Payments) Act (NT) seeking adjudication of both disputes - plaintiff did not consent to simultaneous adjudication - defendant withdrew application and made two fresh applications - plaintiff claimed payments disputes had been subject of previous application and that s27 precluded making of further application- an application has already been made - held: there was no reason to refuse to grant a remedy on discretionary grounds - s 27 applied to preclude a party from making a further application for adjudication where an application in relation to the same payment dispute had been made at any time in the past - no need for application to be still on foot - s27 precluded a party from making application for an adjudication where the applicant had withdrawn the earlier application and where the first application sought adjudication of more than one payment dispute without the consent of the other party - applications not validly made and of no effect.
Gwelo Developments Pty Ltd (C)
[From Benchmark 20 October 2014]

Redbirds

By Sara Teasdale

Redbirds, redbirds,
Long and long ago,
What a honey-call you had
In hills I used to know;

Redbud, buckberry,
Wild plum-tree
And proud river sweeping
Southward to the sea,

Brown and gold in the sun
Sparkling far below,
Trailing stately round her bluffs
Where the poplars grow -

Redbirds, redbirds,
Are you singing still
As you sang one May day
On Saxton's Hill?

Sara Teasdale